G. A. Dress Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 60 (N.L.R.B. 1976)

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. A. Dress Co., Inc. and Local 107, International La- gent work rules because of protected concerted activ-
dies' Garment Workers ' Union, AFL-CIO. Case ity."
29-CA--4490 2. Substitute the attached notice for that of the
Administrative Law Judge.
June 24, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On February 17, 1976, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions and a supporting
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, and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order, except as modified
below.
i Members Fanning and Penello find that Supervisor Tomaselli's castigat-
ing and insulting employee DiFiore for passing out union authorization
cards at lunchtime while Tomaselli was not present violated Sec 8(a)(1) of
the Act In front of other employees, Tomaselli called DiFiore a "sneaky
thing" and asked, "Why don't you distribute them while I'm in the room
Why not while I'm in the room)" In the view of Members Fanning and
Penello, Tomaselli's remarks could only serve to restrain employees in the
exercise of lawful union activity
Member Walther would not find that Respondent violated Sec 8(a)(I)
either by Floorlady Tomaselli's questioning of DiFiore on or about May 7
about whether she had signed a union card, or by President Drogo's telling
employees that if the Union came in he would probably have to go out of
business because he didn't know of any union jobbers from whom he could
expect to get business As to the first incident, this occurred while DiFiore
was wearing a large button containing the inscription "The Union for Me,
ILGWU," and was openly distributing union literature to employees ap-
proaching the staircase to the factory Member Walther finds it difficult to
conceive how the question put to DiFiore who was openly advertising her
allegiance to the Union can be said to have been coercive As to President
Drogo's statement, Member Walther would find that it represented
Respondent's belief "regarding the demonstrable economic consequences
beyond its control which could flow from unionization " As such it was
protected by Sec 8(c) of the Act Birdsall Construction Company, 198 NLRB
163 (1972), enfd 487 F 2d 288 (C A 5, 1973) Finally, Member Walther
agrees with the Administrative Law Judge that Floorlady Tomaselli's calling
DiFiore a "sneaky thing" for distributing union authorization cards, behind
the back of the floorlady did not rise to the level of an 8(a)(1) violation
Tennessee Shell Company, Inc, 212 NLRB 193 (1974) (Members Fanning
and Jenkins dissenting), Montgomery Ward and Co, Incorporated, 187
NLRB 956, 964 (1970)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge , as modified
below , and hereby orders that the Respondent,
G. A. Dress Co., Inc., Port Jefferson , New York, its
officers, agents , successors , and assigns , shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 1(a) of
the Administrative Law Judge 's recommended Or-
der:
"(a) Threatening to close its plant if Local 107,
International Ladies Garment Workers ' Union,
AFL-CIO, herein called the Union , or any other la-
bor organization , becomes the bargaining representa-
tive of its employees ; interrogating its employees
concerning their interest in or sympathy for the
Union , or in any other protected concerted activity;
urging any employee to quit because of engaging in
any protected concerted activity ; encouraging its em-
ployees to urge any of its employees to quit because
of said employees engaging in protected concerted
activity; castigating and insulting any of its employ-
ees because they have engaged in protected concert-
ed activity ; and threatening to discontinue its policy
of permitting part -time work or imposing more strin-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join , or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity, ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
WE WILL NOT threaten to close down the facto-
ry or threaten to discontinue the policy of per-
mitting part-time work or impose more stringent
work rules because you join Local 107, Interna-
tional Ladies ' Garment Workers ' Union, AFL-
CIO, or any other labor organization.
225 NLRB No. 8
G. A. DRESS CO., INC
WE WILL NOT urge any employee to quit or
encourage our employees to urge any of our em-
ployees to quit because of their membership in
or sympathy for Local 107, International Ladies'
Garment Workers' Union, AFL-CIO, or any
other labor organization.
WE WILL NOT question our employees concern-
ing their union membership or activity.
WE WILL NOT castigate or insult our employees
because they pass out union authorization cards
or engage in any other protected concerted ac-
tivity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
any of your rights set forth above which are
guaranteed by the National Labor Relations
Act.
G. A. DRESS CO., INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This case
was heard before me in Brooklyn, New York, on and be-
tween December 8 and 11, 1975. The complaint, issued on
October 24, 1975, pursuant to a charge filed on July 31,
1975, alleges that the above-named G. A. Dress Co., Inc.,
herein called Respondent, engaged in unfair labor practic-
es within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed an answer denying the commis-
sion of the alleged unfair labor practices.' All parties were
afforded full opportunity to appear, to introduce evidence,
to examine and cross-examine witnesses, and to argue at
length on the record. Neither General Counsel nor Re-
spondent filed a brief in this matter. Upon the entire rec-
ord in the case, including the argument of counsel on the
record, and from my observation of the demeanor 2 of the
witnesses, I make the following:
1 In substance , the complaint , as amended at the hearing, alleges unlawful
interrogation , threats to discontinue a practice of permitting part-time work
and to close the plant and lay off employees , an unlawful refusal to consider
applicants for employment because of their membership in and activity on
behalf of the above-named labor organization, harassment of an employee,
Rose DiFiore, isolating her from other employees and, finally, the construc-
tive discharge of employee Rose DiFiore and a failure to reinstate or offer
to reinstate her At the hearing , Respondent admitted the "commerce alle-
gations" in the complaint, and admitted the jurisdiction of the Board
It was stipulated by the parties that Mae Tomaselli, Respondent's floor
lady, had authority to hire, recall, promote, and discipline (other than dis-
charge) Respondent's employees, all in the interest of Respondent (G C
Exh 2)
2
The facts found herein are based on the record as a whole upon my
observation of the witnesses . The credibility resolutions have been derived
from a review of the entire testimonial record and exhibits with due regard
for the logic of probability, the demeanor of the witnesses and the teaching
of N L R B v Walton Manufacturing Company & Loganville Pants Co, 369
U S 404, 408 (1962) As to those witnesses testifying in contradiction of the
FINDINGS OF FACT
I. JURISDICTION
61
The complaint alleges, Respondent G. A. Dress Co.,
Inc., admits, and I find, that Respondent is, and has been
at all times material herein, a corporation duly organized
under and existing pursuant to the laws of the State of New
York; that Respondent maintains its principal office and
place of business at 21 Perry Street, in the village of Port
Jefferson, County of Suffolk, State of New York, where it
is, and has been at all times material herein, engaged as a
contractor in the assembly and finishing of women's dress-
es and related products in the ladies garment industry.
During the 12-month period ending October 1975, a repre-
sentative period, Respondent in the course and conduct of
business operations performed contract services at its plant
valued at $200,000 of which services valued in excess of
$50,000 were furnished to, among others, an employer
which annually produces products valued in excess of
$50,000 shipped directly out of the State of New York
wherein said employer is located.
The complaint alleges, Respondent admits, and I find
that Respondent has been at all times material herein an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that Local 107, International Ladies' Garment Workers'
Union, AFL-CIO, herein called the Union , is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. ISSUES
(1) Whether on or about May 7 and other dates in May
and June 1975, Respondent, by Nazareno Drogo, its presi-
dent and agent and by its floorlady, Mae Tomaselli,3 en-
gaged in unlawful interrogation, made unlawful threats of
discontinuing part-time work and closing of its plant, of
laying off of its employees, and unlawfully refusing to con-
sider named applicants for employment because of their
membership in and activity on behalf of the Union.
(2) Whether commencing on or about May 7, 1975, Re-
spondent, by Nazareno Drogo and Mae Tomaselli, har-
assed Rose DiFiore, an employee, by isolating her from
other employees; by calling the attention of its employees
in a critical and abusive manner to Rose DiFiore's activi-
ties on behalf of the Union; by denying her access to the
Employer's premises during worktime because of her activ-
ities on behalf of the Union; and finally, by urging her to
findings herein , their testimony has been discredited , either as having been
in conflict with the testimony of credible witnesses or because it was in and
of itself incredible and unworthy of belief All testimony has been reviewed
and weighed in the light of the entire record
3 Upon the stipulation (see In 1) regarding Tomaselli's authority, she is
clearly a statutory supervisor of Respondent within the meaning of Sec
2(11) of the Act and I so find
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quit her employment and by refusing to prevent other em-
ployees from harassing DiFiore and urging her to quit.
Whether on or about June 2, 1975, Respondent con-
structively discharged Rose DiFiore.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent established manufacturing operations at the
above-noted Perry Street address in Port Jefferson, Long
Island, in May 1968. The evidence shows that the factory
occupies the second floor of a two-story building with an
outside staircase leading to the second floor premises. An
outside sign on the second floor, in existence up through
June 1975, states: Operators Wanted-G. A. Dress Co.
(G.C. Exh. 6). Respondent's president, Nazareno Drogo,
testified that in June 1975 he painted out the portion of the
sign which states "Operators Wanted."
As a ladies' dress contractor, Respondent employs about
30 sewing machine operators who assemble various por-
tions of the contracted dresses from bundles of cut materi-
als which are placed on tables in front of their sewing ma-
chines. Respondent's factory on the second floor also has a
separate, enclosed "finishing room," separated from the
sewing machine room in which the sewing machine opera-
tors sew the garments. In the finishing room, the garments
are processed after assembly and after stray threads are
removed.
Mae Tomaselli, the floorlady, hired in 1968, was in fact
the chief supervisor in the factory until her resignation in
August 1975. President Nazareno Drogo visits the factory
from time to time, particularly when problems of pricing of
garments arise between management and the employees.
The evidence also shows that Rose DiFiore, employed
by Respondent as a part-time sewing machine operator for
a period of about 7 years until June 2, 1975, regularly
worked by arrangement with the Respondent for 10
months during each year. The two summer months were
devoted to the care of her minor child. Similarly Rose Di-
Fiore ordinarily started work some 10 or 15 minutes after
the other operators commenced work at 8 a.m. each day
and also left by 2 p.m. prior to the other employees. She
was never reprimanded or cautioned by any supervisor for
these working hours or for her summer separation from the
Company. These hours and that separation were a practice
which the Employer accepted. Mrs DiFiore testified that
she is a piece worker, earning about $40 or $50 per week,
and that other sewing machine operators worked a similar
pattern regarding not being employed during the summer
months. She and the other 30 operators punch a timeclock.
It is uncontested that there are no smoking signs through-
out the shop and that at least in the year commencing 1975
Respondent attempted with indifferent success to enforce
the rule against employees smoking at their sewing ma-
chines. Smoking is permitted either in the ladies' room or
on a small porch which forms the topmost area of the out-
side steps leading to the second floor factory premises.
DiFiore testified that she was a member of Local 107
ILGWU in the period 1967-1968, and it appears that none
of the Respondent's employees are represented by a labor
organization. DiFiore testified that she met Barbara Lauf-
man, a union organizer for Local 107, in late April 1975,
and at Mrs. Laufman's request signed a membership card
in Local 107. A few days after meeting Mrs. Laufman,
DiFiore met Mary Ruggiero, a business agent for Local
107. When Mrs DiFiore signed a membership card for
Mrs. Laufman, she told Mrs. Laufman of other of
Respondent's operators who might be sympathetic to the
objects and aims of Local 107. Thereafter, Mrs. Laufman
went to those other employees of Respondent and, accord-
ing to her testimony, solicited and received signed cards
from them. Their names were not revealed to DiFiore.
Mrs. Laufman and Mrs. Ruggiero requested Rose DiFiore
to help organize the Respondent's shop and she agreed.
On May 6, 1975, Ruggiero and Laufman asked Rose
DiFiore to join them in distributing union leaflets in front
of Respondent's factory on the next day, May 7, 1975. She
agreed to do so.
B. The Events of May 7 and 8, 1975
By 7 a.m., May 7, 1975, Business Agent Ruggiero, Union
Organizer Laufman, and employee Rose DiFiore drove to
the factory premises, all three of them wearing large green
and white union buttons bearing the inscription "The
Union for Me, ILGWU." They distributed union literature
to employees approaching the staircase to the factory.
Floorlady Tomaselli arrived. Rose DiFiore testified that
Mae Tomaselli approached them and said "What's going
on?" Then, looking at the union agents, asked "She signed?
She signed?" Mrs. DiFiore said that either Mary Ruggiero
or Barbara Laufman answered: "Well, she's here, isn't
she?" Mrs. Laufman testified that as she attempted to give
Mae Tomaselli a union leaflet, Mae Tomaselli said to Rose
DiFiore directly "did you sign?" Mrs. Laufman said that
she believed that Mary Ruggiero then said "Well, she's
here, isn't she)" Mary Ruggiero testified that, after Mae
Tomaselli was handed a leaflet, Mae Tomaselli looked at
Mary Ruggiero and asked Mary Ruggiero if Rose DiFiore
had signed with the Union. Mary Ruggiero stated that she
made the above response. In any case, after this exchange,
Mae Tomaselli mounted the steps and thereafter entered
the shop. However, before she walked away, Laufman re-
members Mae Tomaselli saying "I'll take care of you. Wait
until Reno gets here " Neither Rose DiFiore nor Mary
Ruggeeio, both of whom were in the immediate presence of
Mrs. Laufman, corroborated this final parting remark. I do
not credit Mrs. Laufman in this last remark, in view of the
lack of corroboration and Tomaselli's denial of the remark.
Insofar as Mae Tomaselli denied the other parts of the
conversation, I do not credit her denial. Rose DiFiore,
Mary Ruggiero, and Barbara Laufman continued to dis-
tribute leaflets. About 8 a.m. Rose DiFiore left the two
union agents and proceeded up the stairs to work. Mrs.
Laufman gave Rose DiFiore 25 or 30 union authorization
cards and asked her to distribute them during the lunch
hour among the employees. DiFiore went up to work.
Shortly after 8 a.m., after Rose DiFiore had entered the
factory, President Nazareno Drogo drove up in a station
wagon and parked the car across the street from the facto-
ry. He approached Laufman and Ruggiero and said to
them, according to the credited testimony of Laufman and
Ruggeiro: "Get off my property, you creeps." Laufman
G. A. DRESS CO, INC. 63
answered that they weren't on his property and they
weren't "creeps." To this, Drogo answered' "Get lost you
creeps." Nazareno Drogo then mounted the steps and en-
tered the shop.
Meanwhile, Rose DiFiore had punched the timeclock
and approached her machine. At this point, Mae Tomaselli
yelled "here she is." DiFiore stated that, with the sewing
machine operators at their machines, Tomaselli and Naza-
reno Drogo commenced screaming at her. According to
credited testimony of Rose DiFiore, Mae Tomaselli said-
"After I gave you a chance to work part-time, you do this
to us." Respondent's president, Nazareno Drogo, stated to
DiFiore and the other operators' "who wants the Union,
they do nothing for you." DiFiore described Drogo as pac-
ing up and down the aisles between the machines. Some of
the girls shouted "We don't want the Union." Others
shouted that Rose DiFiore's sister worked in a union shop
and that- "You want the Union? Why don't you work in
your sister's shop." Reno Drogo also said to DiFiore:
"From now on, you can't work part time anymore." Rose
DiFiore asked Reno whether she should go to work,
whether she should take her bundle of work from the work
table and take it to her sewing machine. Drogo answered
"take your bundle and I'll call my lawyers." DiFiore testi-
fied that she was wearing her union button and wore her
union button in the shop every day.
At lunchtime Rose DiFiore distributed union authoriza-
tion cards by placing them on the machines while the girls
were at lunch At this time neither Reno nor Mae Tomasel-
lf was present. Mae Tomaselli was in the finishing room.
Thereafter, according to Rose DiFiore, Mae Tomaselli
came rushing up to her and said: "You sneaky thing, you
handed out cards while I wasn't in the room. Why don't
you distribute them while I'm in the room. Why not while
I'm in the room?" This was in the presence of the other
sewing machine operators. During the distribution of
union membership cards, employee Mildred Morgret, a
witness called by Respondent, testified that DiFiore never
gave her a card. She said that DiFfore, for reasons un-
known to the witness, said "You don't want one." Another
operator called by Respondent, Jeanine Evangelista, testi-
fied that when Rose DiFiore gave out the cards, she
stopped when Mae Tomaselli approached. Witness Evan-
gelista testified she heard Mae Tomaselli say: "Give me
some of the cards, I'll give them out." Mae Tomaselli testi-
fied that one of the operators told her that DiFiore was
giving out union cards. Tomaselli walked from the finish-
ing room into the operators' room and said' "Why don't
you give the cards out in front of me? Don't wait until I
leave the room. There are other girls in there. Give it to the
girls in there. Why do you wait for me to leave the room.
Give them out in front of me." Tomaselli testified that at
this point, Di Fiore went to her machine and commenced
working. Except for the use of the words "sneak" and the
difference in tone, the two versions are not exclusive of one
another. Under the circumstances of the case and my ob-
servation of the witnesses,4 and particularly the animus
and anger which I noted in much of the testimony of em-
ployees called as Respondent's witnesses (other than To-
maselli) I credit the version of Rose DiFiore insofar as she
said that Mae Tomaselli accused her of being a "sneak" in
distributing the cards behind the back of the floorlady.
While such a conversation demonstrates Tomaselli's hostil-
ity and animus, I do not find it an act of unlawful interfer-
ence, coercion, or restraint since there was no prohibition
against distribution.
Rose DiFiore went to work the next day, May 8, 1975.
She testified that upon approaching her sewing machine
about 8:10 a.m , Drogo, standing by the timeclock, said to
her: "For now on you're to be at your machine at 8 a.m."
In substance Rose DiFiore answered that she could not do
so because of the problem of caring for her minor child.
DiFiore says that Drogo did not respond at this point and
walked away 5 Drogo denies the event. Rose DiFiore also
testified that either on May 8 or 9 she was told not to
smoke at her machine. She admitted that it was forbidden
and that she did so outside the presence of Tomaselli.
Nazareno Drogo testified that there has always been a
no-smoking rule on the premises and that there are no-
smoking signs liberally posted on the premises. He testified
that, as far as he knew, there had been outstanding instruc-
tions issued by Mae Tomaselli that there was to be no
smoking at the machines. Drogo himself credibly testified
that he never saw an employee smoke at the machines be-
fore May 1975. Commencing in May 1975, he saw several
employees, including Rose DiFiore, smoking at the ma-
chines and told them not to smoke. He testified that he told
Mae Tomaselli to enforce the rule. I do not find a violation
in the enforcement of the no-smoking rule and none is
alleged in the amended complaint.
Mr. Drogo testified that he received an excited telephone
call at 7.15 a.m from Mae Tomaselli on May 7, 1975,
wherein she told him of the distribution of literature out-
side the plant. He arrived shortly thereafter by car and saw
Rose DiFiore and two other persons distributing the litera-
ture. Mr. Drogo denies that he had a conversation with
Rose DiFiore at any time that he saw her distributing liter-
ature. He says that, after he went upstairs, he had a conver-
sation with DiFiore when she came up. He says that Di-
Fiore asked him if she was fired and he said no and that
DiFiore appeared to be surprised. He testified that later in
the morning, after he spoke to Rose DiFiore, four or five of
the machine operators came to him and told him that they
didn't want a union. He testified that the conversation with
these employees who did not want a union did not last
more than 15 minutes because that was the length of time
he remained on the Respondent's premises after first arriv-
ing He not only denies that he had any further conversa-
tion with DiFiore that day, but he denies inquiring of any
of the operators whether they wanted a union; denies ask-
ing anybody if they had sympathies for the Union; denies
inquiring whether anyone had helped the Union or wanted
4I have also taken into account, in evaluating DiFlore's credibility, a
corroborating effect derived from the testimony of employees Sepe and
Prawki, infra
5 1 conclude that , by this statement , Respondent threatened to impose a
more stringent work rule because of DiFiore's union activity, in violation of
Sec 8(a)(I) Though the matter was not specifically alleged in the com-
plaint, there was no objection to the testimony
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. He also denies DiFiore's testimony that he ran
up and down the aisle screaming the question whether any-
body wanted the Union. Lastly, Drogo stated that he did
not think that he went to G. A. Dress shop on May 8,
1975.
I credit the version of Rose DiFiore and I reject the
denials of Tomaselli and Drogo. Thus I find that when
Mae Tomaselli, on the morning of May 7, 1975, inquired of
either of the agents, or of Rose DiFiore directly, whether
Rose DiFiore had signed a card for the Union, this was
unlawful interrogation. The fact that DiFiore was already
wearing a union button is not inconsistent with this further
inquiry. There was no showing of any lawful purpose in
posing the question or that there would be a lack of retri-
bution in the answer. This hostile interrogation violates
Section 8(a)(1) of the Act.
I reject Mary Ruggiero's testimony that, in addition,
Mae Tomaselli warned Rose DiFiore that she would "take
care of her" when Drogo came. Neither Rose DiFiore nor
Barbara Laufman, as above noted, testified as to any such
exclamation on the part of Tomaselli.
I also find, crediting DiFiore's testimony and rejecting
Drogo's denial, that on May 7, 1975, he went up the aisle
of the sewing machine operators demanding, in angry
tones, to know who wanted the Union and permitted and
encouraged, by his example, employees to yell at Rose Di-
Fiore to work in her sister's union shop rather than to re-
main employed at G. A. Dress Company. I find that he
was thereby unlawfully interrogating employees and at the
same time, through the employees, unlawfully urging Di-
Fiore to quit, all because she was engaged in union activi-
ties. I find these also to be violations of Section 8(a)(1).
When Drogo told DiFiore that she could not work part
time any longer, I find that even though this was never
implemented, this was an unlawful threat within Section
8(a)(1) because it was based on Rose DiFiore's member-
ship in, and proselytizing for, the Union.
On May 7, 1975, and about the time that President Dro-
go warned and threatened DiFiore that, "from now on you
can't work part-time anymore," Mae Tomaselli told her,
according to the version I credit "After I gave you a chance
to work part-time, you do this to us." I need not determine
whether this statement of Tomaselli constituted an addi-
tional threat or warning based on DiFiore's union activity
in light of Drogo's similar threats.
Testimony of Charlotte Prawki and Marie Sepe
I regard the testimony of employees Charlotte Prawki
and Marie Sepe, employed by Respondent in May-June
1975, and at the time of the hearing, to be persuasive in
making the credibility resolutions in this case. The credibil-
ity issues are sharply divided and there is little middle
ground between the testimony of the witnesses for General
Counsel, principally DiFiore, who testified with regard to
alleged threats, interrogation, warnings, and harassment on
the one hand, and the testimonial denials and explanations
of Respondent's witnesses, both supervisors and unit em-
ployees. Thus as noted above, I regard the testimony of
Prawki and Sepe as shedding some light on the credibility General Counsel
issues presented. The testimony of these employees em-
ployed by the Respondent at the time of the hearing, nei-
ther of them sympathetic to DiFiore or Local 107, is ordi-
narily given particular weight in evaluating credibility. In
relying on this rule, I agree with counsel for Respondent
who urged me to bear in mind the fact that both DiFiore
and Drogo were interested parties in the proceeding and
their testimony must be viewed in that light. Furthermore,
I agree with counsel for Respondent that insofar as em-
ployee Prawki's testimony goes, it appeared to be highly
credible
1. The testimony of Charlotte Prawki
Paragraph 8 of the complaint herein alleges, in pertinent
part, and Respondent denies, that on or about specific
dates in May, and on various other dates "presently un-
known" during the months of May and June 1975, Re-
spondent threatened that it would close its plant and lay
off its employess and threatened other reprisals if the em-
ployees became or remained members of the Union or as-
sisted or supported it.
Charlotte Prawki testified that she was employed by and
had worked for Respondent for 5 years as a sewing ma-
chine operator; that she is not a member of the Union and
had not been approached to sign a card for the Union; that
at a time when Rose DiFiore was still employed by the
Company, in the spring 6 of 1975, she recalled a conversa-
tion in which Reno Drogo spoke to all the employees in the
shop. Prawki said that Drogo told the operators: ". . . that
if the Union come (sic) in . . . I probably would have to go
out of business because I don't know of any union jobbers
that I would be able to get work from. ..." Although
Prawki did not remember the month in which this conver-
sation occurred, she particularly remembered that no em-
ployee asked Mr. Drogo a question before he made this
remark. She testified that she paid no further attention to
what he was saying. She testified that Drogo was standing
about 12 feet away from her and, although this conversa-
tion occurred during working hours, the machines were not
operating.
Mr. Drogo specifically denied making a statement sub-
stantially in the words that Prawki testified to. Drogo also
specifically denied saying, in words or effect, that if the
Union came in he would have to close the shop . His testi-
mony was only that sewing machine operators in the shop
asked him whether, if the Union came in, he would have to
close the shop He testified that he replied that the Union's
coming in had "nothing to do with the shop."
I was much impressed with the honesty and apparent
straightforwardness of Charlotte Prawki's testimony. Al-
though she could not recall the exact date, it was apparent
that it occurred after the appearance of the Union and
while Rose DiFiore was still employed; i.e., before June 2,
1975. Therefore the statement which Drogo addressed to
the operators occurred some time after May 7, 1975, and
prior to June 2, 1975. This time period is within the allega-
tions of the complaint with regard to the threat.
6 Prawki was unsure of the date The season was suggested to her by
G. A. DRESS CO., INC. 65
The resolution of credibility in favor of Prawki and
against Drogo, in my estimation, is significant in this case
in that it not only establishes an unlawful threat by Re-
spondent to close down, but also tends to undermine reli-
ance on Drogo's continuous denials of other testimony
which was established through Rose DiFiore. While it is
true, as counsel for Respondent argues, that the resolution
of credibility between DiFiore and Drogo is the resolution
of credibility between interested parties, Charlotte Prawki's
testimony, the testimony of an employee still employed by
the employer and facing the president thereof while testify-
ing, comes in for special consideration. I conclude, on my
observation of Prawki and Drogo on the witness stand,
that Prawki's version should be credited, Drogo's discredit-
ed, and the threat to close down a violation of Section
8(a)(1).' Of course, this does not mean that I accept , in toto,
the testimony of all witnesses who testified contrary to the
testimony of Drogo. Nevertheless, I view the discrediting
of Drogo's denial as a serious reflection on his testimony
and the question of union animus.
2. The testimony of Marie Sepe
Marie Sepe, a sewing machine operator employed by
Respondent at the time of the hearing, and also employed
in May or June 1975, testified, in pertinent part when
called as a witness by General Counsel, that on the morn-
ing in which Rose DiFiore and the two union organizers
distributed union literature, Marie Sepe entered the shop
about 8 a.m., and that about 15 or 20 minutes later, Rose
DiFiore entered the shop. In her direct examination she
testified, corroborating DiFiore, that when Rose DiFiore
entered the factory there was great deal of yelling whereby
employees were telling DiFiore of the trouble she was caus-
ing for bringing in the Union and Rose DiFiore was yelling
back. The testimony is unclear, from Mrs. Sepe, whether
Reno Drogo participated in or was even present during
these early exchanges. When General Counsel, in direct
examination, asked Mrs. Sepe whether on that morning
(May 7, 1975) she could recall if Mr. Drogo said anything
to her or to a group of sewing machine opeators, she testi-
fied that she didn't remember too well; that without her
glasses she was unable to read her statement given to a
Board agent, that she swore what she told the Board agent
was true; that she signed her name so swearing on Septem-
ber 11, 1975; that she is not very good at reading English
although she can read a newspaper fairly well, that she has
trouble with the writing in the document; that she read the
document many times and had no trouble reading it or
understanding it; and, finally, that her husband had read it
to her and that they had read it and gone over it together
"inside out."
With the witness demonstrating an evident uneasiness
and an apparent desire not to testify at all, much less in
7 The explanation , that he could not find a union jobber to get work from,
does not save the otherwise unlawful and coercive statement Where there is
not a palpable economic connection suggested between the advent of the
union and the closing of the factory, the statement is coercive , Greenfield
Manufacturing Company, a Division of Kellwood Company, 199 NLRB 756
(1972) There was no explanation of or experience covering an inability to
get a union jobber
accordance with her prior statement, and an alleged loss of
memory, I nevertheless ruled against General Counsel in-
troducing the statement into evidence. Rather, I permitted
General Counsel to examine the witness by leading ques-
tions. In response to this procedure, Sepe testified that on
the morning of May 7, while she was working at her ma-
chine, she heard Reno Drogo speak when DiFiore entered
the factory. There was a great deal of commotion at the
time with many employees yelling. In answer to General
Counsel's question: "Did you hear Reno say anything to
Rose?" Sepe answered that she did not recall the event as
of the time of her testimony. In answer to General
Counsel's further question: "Did you hear him say if the
girls don't want her, they should speak up?" The witness
answered "he might have said that."
Sepe was testifying with Mr. Drogo facing her in the
room. This prompted General Counsel to inquire: "Do you
feel funny about talking in front of Mr. Drogo?" The wit-
ness' answer was, "not funny. I feel a little ashamed, my
boss, is you know-why should-but I don't feel funny."
She also testified that she did not mind him hearing what
she was testifying to.
On cross-examination by Respondent, Respondent testi-
fied fully and even willingly. Mrs. Sepe testified that she
could not recall hearing Mr. Drogo say that if the girls
didn't want Rose DiFiore, they should speak up. She also
could not recall that Mr. Drogo ever told Rose DiFiore
that if she wanted a union shop that she should go to a
union shop.
On the basis of the above testimony, I reject Marie
Sepe's recantation on cross-examination and I credit her
direct testimony. I do so on the basis of my observation of
her, her demonstrated fear of testifying against Respon-
dent, my disbelief that she could not remember what was
in her statement, and her affirmative testimony that Mr.
Drogo "might have said" that if the operators did not want
her (Rose DiFiore) they should speak up. In short, I credit
Rose DiFiore's testimony, as corroborated in substantial
part by Marie Sepe, that on May 7, 1975, Reno Drogo,
president of the Employer, told the sewing machine opera-
tors that if they didn't want Rose DiFiore they should
speak up. I conclude and infer that this was Mr. Drogo's
attempt to harass Rose DiFiore because of her activities in
support of Local 107, ILGWU, and that this harassment
was in furtherance of my earlier finding of his violations of
Section 8(a)(1) of interrogating employees and harassing
Rose DiFiore. Here, by urging her coemployees to act
against DiFiore, he was urging employees to get DiFiore to
quit, I conclude that Respondent, as alleged in section
10(a) and (e) of the amended complaint, was unlawfully
isolating and harassing DiFiore, interfering with her pro-
tected rights, and coercing both DiFiore and the operators
he was addressing, all in violation of Section 8(a)(1).
In addition, my finding that Drogo, in spite of his deni-
als, made the statement attributed to him by Marie Sepe,
as with the credited testimony of Charlotte Prawki, tends
to undermine not only Drogo's testimony, but also the tes-
timony of his subordinate supervisor, Mae Tomaselli, who
supported Drogo's testimony.
To recapitulate, I find, as alleged in the complaint, that
in violation of Section 8(a)(1) of the Act Respondent, by
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nazareno Drogo and Mae Tomaselli, on May 7, 1975, un-
lawfully interrogated its employees concerning their mem-
bership and activities on behalf of Local 107; that on May
7, 1975, Respondent by its president, Drogo, threatened
Rose DiFiore that she would not be thereafter permitted to
work part time; and that, as testified to by Charlotte
Prawki, the Respondent by Reno Drogo violated Section
8(a)(1) of the Act between May 7 and June 2, 1975, by
threatening 8 to go out of business if the Union came in.
Lastly, I find, in conformity with the testimony of Marie
Sepe and Rose DiFiore, that Drogo unlawfully urged and
encouraged the sewing machine operators to get DiFiore to
quit and to speak up against Rose DiFiore if they didn't
want her, thus, necessarily directing the employees to os-
tracize her as alleged in paragraph 10(a) and urging her to
quit as alleged in paragraph 10(e) of the complaint. I find
these to be violations of Section 8(a)(1) of the Act. The
acquiescence of Drogo and Tomaselli in the unlawful con-
duct of Respondent's employees is sufficient to create a
violation. Cf. Sargent Electric Co, 209 NLRB 630, 637
(1974) An employer has an affirmative duty to safeguard
his employees from antiunion employees, D W. Newton,
an individual, d/b/a Newton Brothers Lumber Company, 103
NLRB 564 (1953).
C. The Events of May 9, 1975• Anna Arena and Antoinette
Jackson Seek Employment
Anna Arena, never an employee of Respondent, testified
that she was employed as a sewing machine operator for an
employer in Copiague, Long Island New York, for a period
of 6 years, the same length of time that her friend, Antoin-
ette Jackson, was employed by the same employer. She
testified that they were neighbors of each other and that
Antoinette Jackson always drove Anna Arena to work be-
cause Anna Arena was unable to drive and there was no
direct bus transportation. They both had been members of
Local 107 for a number of years. Sometime prior to May 9,
Union Agent Mary Ruggiero contacted them and asked
whether they would go to the Respondent's premises to
"apply for a job," and see if Respondent was discriminat-
ing in hiring union members Neither had prior contact
with Respondent.
About 10 a.m., Antoinette Jackson picked up Anna Are-
na in her car and drove to Local 107's office in Bay Shore,
Long Island. There, they were met by Barbara Laufman.
Shortly before noon the three of them drove to
Respondent's premises in Port Jefferson and arrived there
immediately before noon. Outside, they saw the large sign
noting that Respondent "wanted" operators. They both
wore the large union buttons which said "Union For Me,
ILGWU."
They went up the stairs into the factory and saw that the
sewing machine operators had stopped for lunch. They
asked for Mae Tomaselli. Anna Arena stated that Antoin-
ette Jackson did most of the talking. She said that Mae
Tomaselli saw the union buttons and asked. "What are
you girls doing here? This is a nonunion shop and you
8I have found, above, an unlawful threat to impose on DiFiore more
stringent work conditions
don't belong here." Ann Jackson replied: "We are ap-
plying for a job." Mae Tomaselli said: "I have no machines
available." Anna Arena testified that, at that point, one of
the sewing machine operators told Mae Tomaselli to call
the boss and Tomaselli proceeded to do that. Arena and
Jackson waited. About a half hour later, Reno Drogo ar-
rived on the premises. Anna Arena testified that he asked
what they wanted and they told him that they were looking
for Jobs. He told them that there were no Jobs available but
they inquired about the sign on the outside wall. Anna
Arena testified that Drogo answered that the sign had been
up a long time. He then allegedly turned to them, called
them "bums" and "union stoolies" and told them to leave
or they would be arrested. Anna Arena testified that they
then left and never returned. She denied that the Union
paid them to go there that day or that she had ever been
paid by the Union to organize a shop.
Mrs. Arena also testified that she and Antoinette Jack-
son were in layoff status from their regular jobs.
On cross-examination, Mrs. Arena testified that she was
a member of Local 107 for about 8 years and had been laid
off only a few days, perhaps 3 or 4 when she got a tele-
phone call from Union Agent Marie Ruggiero. She testi-
fied that she had never contacted Mary Ruggiero advising
her that she or Antoinette Jackson had been laid off. Mrs.
Arena testified that, aside from asking her to accompany
Jackson to "apply for a job," Mary Ruggiero said nothing
else. She also testified that the Union had directed her and
Antoinette to wear the large union buttons and she also
admitted that she does not normally wear such a union
button in applying for a job. She also admitted that she
would have been unable to take the job at Respondent's
premises unless Ann Jackson, who drove her to work, was
also given a job. Public transportation was unsatisfactory.
Arena admitted that the Union did not ask her or sug-
gest that she seek other Jobs after she was turned down by
Respondent.
Antoinette Jackson
Antoinette Jackson testified that in May 1975 she was
not working for her employer in Copiague but did not
specify that she was in layoff status. She testified that when
she got to Respondent's premises she asked for Mae Toma-
selli, having previously been told that she was the floorla-
dy She corroborated Anna Arena that they were both
wearing the large union buttons. She testified that she
asked for a job as an operator and Mae Tomaselli told her
that "we had no business being there, being we were union
members." Antoinette Jackson replied that there was a sign
outside advertising for operators. Mae Tomaselli then an-
swered that there were no empty machines for her. And
Antoinette Jackson stated: "I see some empty machines "
Mae Tomaselli responded: "The women are out sick." An-
toinette Jackson said. "I would be willing to work until the
women came back." Mae Tomaselli responded: "No," she
did not "give away other people's machines."
Mrs. Jackson testified that, thereafter, when Reno Drogo
arrived at the factory, he asked whether you "ladies are
looking for job." Mrs. Jackson said that when she said that
she was looking for a job, he said: "I have no jobs for you;
G. A. DRESS CO., INC.
you're nothing but union stoolies." 9 Mrs. Jackson said that
she answered ; "Well, you have a sign outside advertising
for operators ." Drogo allegedly replied : "The sign has been
up there for a long time and you are nothing but bums."
Mrs. Jackson says that at that point Drogo told Tomaselli
to dial "911," to call the police and to have them arrested.
Mrs. Jackson states at that point she stated : "Well, I guess
you don 't want to hire us" and they then left.
Mrs. Jackson testified that she saw that the sewing ma-
chines at that time did not have cotton in them which
meant that they were not being used . When she called this
to Mae Tomaselli 's attention , Tomaselli told her that the
women were out sick . When Mae Tomaselli made this re-
ply, Mrs. Jackson testified that she did not demand that
the machines be given to her but merely said that she
would be willing to work there until the women came back.
It was Jackson 's recollection that she first received a tele-
phone call from Mary Ruggiero to apply for the job at the
Respondent 's factory on May 8, 1975. She testified that she
had previously worked for the Union by helping them or-
ganize shop in the 2-year period prior to visiting
Respondent 's premises; that she had not been told by her
employer when she would be going back to work and that,
in fact , she might have been out of work for about a week
before being recalled . She testified that both she and Mrs.
Arena returned to work at the employer in Copiague at the
same time.
On cross-examination Mrs. Jackson testified that Mary
Ruggiero instructed her to apply for a job at Respondent's
place of business in order to see if Respondent was dis-
criminating by not hiring union members. She testified that
the Union paid her when she was organizing shops for
them but did not pay her for attempting to organize
Respondent 's shop.
Rose DiFiore remembers the incident. She testified that
during the lunch hour the two applicants spoke with Mae
Tomaselli near her machine and she overheard the conver-
sation She testified that the two of them asked for Jobs and
Mae Tomaselli said that she had no machines and in-
quired : "You are union girls, what are you doing here?"
She also testified that she heard reference from the appli-
cants to the "empty machines " and Mae Tomaselli saying
that the "girls are out sick ." She also recalls the applicants,
Arena and Jackson , stating that they were "willing to work
there until they come back ." She also recalls Mae Tomasel-
li turning to her and saying- "Why don't you tell your
friends there are no empty machines ?" Mrs. DiFiore an-
swered : "How do you know that they are my friends." At
this point Respondent 's sewing machine operators shouted
to the applicants that the empty machines were "taken."
Uana (Joanna) Gaglias, a sewing machine operator who
worked for Reno Drogo on and off for about 15 years, but,
since June 1975, no longer employed by Respondent, testi-
fied that the two applicants came into the shop about noon
but that her back was to the door when they entered. Her
machine was opposite that of Mae Tomaselli 's and there
was a pile of garments between them When Gaglias turned
around she saw the two applicants and heard them say,
9 Such a statement , if made, does not interfere with Sec 7 rights Herbert
E Orr Co , Inc, 185 NLRB 1002, 1008 (1970)
67
"We are looking for a job." She saw them wearing the
union buttons and heard the announcement that they were
looking for a job which was made to the entire assembled
group of sewing machine operators . She saw them walk
over to Mae Tomaselli. Tomaselli said that there was "no
opening here." One of the women said , according to Gagli-
as. "Well, we know we were told that there are machines
available ." One of them stated that the machine next to
DiFiore was open . Tomaselli responded that the employee
was out sick but would be back but the applicants said that
they knew that there were "openings" and they wanted to
work. At this point, according to the witness, the applicants
were yelling very loudly that they wanted to work, stating
that they knew that there was a job opening. She stated
that she heard them say: "You don' t want to give us work
because there is a union ." They said they wanted to see the
boss. Gaglias told Mae Tomaselli that, if the applicants
were going to wait for the boss, they should wait in a differ-
ent section of the factory. The applicants said that that was
all right and then began talking with Rose DiFiore . Gaglias
recalled that one of the applicants asked Rose DiFiore if
they were treating her "O.K."
About 15 or 20 minutes later , she said Reno Drogo ar-
rived and told the applicants that there wasn 't any work
available. When they referred to the sign in the window,
which sign spoke of operators being "wanted ," they contin-
ued to insist that the only reason Drogo wouldn ' t give them
a job was because of the Union. Drogo asked them to
leave. When they refused to leave, Drogo asked the witness
to call the police and the applicants left.
Mildred Morgret , an employee of Respondent for about
7 years, a witness whom I regarded as more stra ightfor-
ward, credible, less antagonistic to DiFiore than the others,
and certainly less emotional , testified that the first thing
she heard was a loud voice just before noon. She testified
that she heard someone say that the two women were look-
ing for a job. She testified that she saw them talking to
Rose DiFiore, while they were standing by her machine.
They were talking about getting a job and Morgret told
Rose DiFiore that there were no machines and that there
was no work for them . Rose DiFiore told her that it was
none of her business and that she should shut up. The
witness testified that she continued to work.
Jeanine Evangelista , an employee of Respondent for
about 7 years, a machine operator , testified that about 10
minutes before noon , two ladies wearing buttons told To-
maselli • "Since you have empty machines, we want work."
Tomaselli answered : " I have no empty machines ." One of
the ladies said . "What you mean? There are empty ma-
chines there." Mae Tomaselli said that the women who sat
at the empty machines were out sick but the two applicants
turned around and said "No, you are not giving us the job
because we are union members." Mae Tomaselli denied
this. When Evangelista corroborated Tomaselli 's state-
ment , that the sick employees were coming back and To-
maselli was holding the machines for them , Evangelista tes-
tified that the two applicants turned to her and said: "Who
asked you talk? Who told you to say anything?" The wit-
ness answered : " I am expressing my opinion and that is
all." Evangelista testified that an argument followed be-
tween Mae Tomaselli and the applicants where the appli-
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cants stated that they were not given jobs because they
were union members and Mae Tomaselli was denying this
by insisting that the empty machines had employees allot-
ted to them but the employees were out sick.
Mae Tomaselli remembers the incident in a slightly dif-
ferent way. She recalls that the two "union ladies" came
into the sewing machine operators' room rather than going
into a small office which is adjacent to the storeway en-
trance. Mae Tomaselli asked them what they wanted and
told them that they were not supposed to be there. She told
them that anyone that comes to see her is supposed to stay
in the other room or the office; but they were not supposed
to come into the shop. Tomaselli places this immediately
before lunchtime while the girls were still working. Mrs.
Tomaselli recalls that the applicants said that a friend of
theirs had told them that there was an opening. Mrs. To-
maselli denied the existence of an opening. She testified
that the two applicants pointed to two empty machines and
that Mrs. Tomaselli said that the machines were "taken"
and that the girls were out sick. She testified that the appli-
cants insisted that they wanted the two machines When
the applicants insisted on the fact that there was work there
and Mrs. Tomaselli denied the existence of a vacancy, Mrs.
Tomaselli said that they were causing a disturbance and
that she was going to call the boss and let him handle it.
She said that while waiting for Reno Drogo, there was an
argument between the Company's sewing machine opera-
tors and the two women who had come there looking for
work. Mrs. Tomaselli testified that she had heard some of
the sewing machine operators tell the two ladies that they
(the sewing machine operators) didn't want any part of the
Union because the Respondent's operators were elderly
people and the Union wouldn't do them any good. In par-
ticular, Mrs. Tomaselli denies that she ever told the two
applicants that she wouldn't employ them because they
were in the Union. Mrs. Tomaselli also did not recall
whether the applicants wearing the union buttons ever told
her that she was not employing them because they were
union members.
Nazareno Drogo testified that the sign affixed to the out-
side premises of the Respondent's factory ("Operators
Wanted, G. A. Dress Co.") had been there since 1968. In
June 1975, subsequent to the above occurrences, he paint-
ed out the words "Operators Wanted."
Drogo testified that in the period May 1 through June 2,
G. A. Dress had not employed any new sewing machine
operators; that the last new operator hired was Joanna
Gaglias in April 1975; and that after DiFiore left on June
2, 1975, she was not replaced. Drogo recalls a telephone
call from Mae Tomaselli about 11:45 a.m. relating to two
girls applying for a job who had refused to leave. Drogo
went to the shop about 12:15 and saw two women wearing
buttons. Drogo asked them what they wanted and they
told him they were looking for jobs When he told them
that there were no openings they pointed to two empty
machines and Drogo told them that the operators were
sick. Drogo asked them to leave and when they refused he
asked Mae Tomaselli to call the police whereupon the ap-
plicants left.
It may well be that if Anna Arena and Antoinette Jack-
son are applicants for employment, they are accorded the
protection of the Act (Goodwater Nursing Home, Inc., 222
NLRB 148 (1976) ), and may not be discriminated against
because they engaged in protected concerted activity. The
question of whether a job opening exists does not affect
their protection and is essentially a matter for compliance
proceedings. Goodwater Nursing Home, Inc, supra, fn. 12 of
Administrative Law Judge Stone's Decision adopted by the
Board.
I conclude that, as firm union adherents, the Union re-
cruited them to "test" Respondent. DiFiore did not testify
that she told them of any "openings" and the record is
barren of proof on this point. Arena and Jackson believed
they would shortly return to their employment and I reject
their testimony that they would take work until the sick
employees returned. While I do not doubt that they told
this to Tomaselli, I do not credit their testimony. Rather, I
conclude that Arena and Jackson said that they were look-
ing for work and, following the exchange with Tomaselli
regarding the empty machines, stated that they were being
refused work because they were members of the Union.
Their union buttons announced their allegiance. I do not
believe that 2 days after the union organizing campaign
started, and in spite of Drogo's and Tomaselli's antago-
nism to and animus regarding the Union-and DiFiore-
they would loudly announce that they refused to hire the
applicants because of their union membership or sympa-
thies. The matter is one of credibility. I conclude that the
testimony of Respondent's witnesses and General
Counsel's witnesses on this point was filled with passion
and rancor. I thus have attempted to weigh the probabili-
ties of the testimony and the reasonable sequence.
In addition, I have some doubt that Arena and Jackson
are "applicants" who are protected as "employees" under
the Act. See also N.L.R B. v. Elias Brothers Restaurants,
Inc, 496 F.2d 1165 (C.A. 6, 1974), enfg. 204 NLRB 686;
Phelps Dodge Corp. v. N L.R B, 313 U.S. 177 (1941). A
status of "applicant" presupposes a reasonable bona fides
in seeking work. Here, Arena and Jackson were mere
agents provocateurs This status of provocateur, it seems to
me, ought to be distinguished from an employee who may
be both a provocateur and is actually performing unit
work. But cf. Holbrook Knitwear, Inc., 169 NLRB 768, In. 1
(1968), where the Board's dictum indicates otherwise. At
any rate I do not rely on this position in crediting
Respondent's version and rejecting the testimony of Di-
Fiore, Arena, and Jackson.10
The Events of May 13, 1975
Union Organizer Barbara Laufman testified that about 7
a.m., May 13, 1975, 30 to 40 union pickets picketed
Respondent's premises. The only employee of Respondent
who picketed was Rose DiFiore. Two types of union signs
were carried, both of them 3- by 2-foot white cardboard
10 Since, as noted , infra, DiFiore was reporting on a daily basis to Union
Organizer Laufman concerning events in the factory, and since
Respondent 's union animus was manifest , Union Agent Ruggiero's direc-
tion to Arena and Jackson (to see if Respondent was "discriminating
against hiring Union members") reinforces the conclusion that it was the
applicants , rather than Tomaselli, who advanced an unlawful motive for the
unwillingness to hire them
G. A. DRESS CO., INC.
signs. The testimony of Union Organizer Laufman was
that during the picketing Reno Drogo arrived in his car,
got out on the opposite side of the street, and observed the
picketing from the other side of the street for about 10 or
15 minutes. Reno Drogo then entered the shop. The picket-
ing lasted from about 7 to 8.30 a.m. and Rose DiFiore
went up into the shop to work about 5 minutes before 8.
Mrs. Laufman testified that she saw Rose DiFiore go up
the stairs, get to the top step and find that three people
were standing in the doorway and blocking her entrance
into the factory. She testified that she heard Rose DiFiore
say: "Well, you going to let me in or not?" Mrs. Laufman
recognized two of the three persons blocking DiFiore's in-
gress: one was Mae Tomaselli and the other was employee
Rose Lopez. After about 10 or 15 seconds, Rose DiFiore
again repeated "Well, are you going to let me in?" At this
point, Mrs. Laufman testified that Rose DiFiore physically
pushed forward and entered the shop.
Rose DiFiore remembers the incident at the door slight-
ly differently She said that Mae Tomaselli, Rose Lopez,
and Jeanine Evangelista (Rose Lopez' sister) were standing
in the doorway and she said: "Excuse me, I want to get in,
you know, please I have to go to work let me go to work."
Rose DiFiore, on direct examination, said she pushed her
way in. On cross-examination, however, Rose DiFiore ad-
mitted that there was no touching involved as she went
through the doorway. She testified that she spent 4 or 5
seconds standing there outside.
Rose Lopez testified that after she got past the pickets
and upstairs, she put her pocketbook down and went to the
door to look down because she had never seen a picket
line 11 and was merely curious. She testified that three of
them were standing in the door as Rose DiFiore came up,
dust looking and ". . may be answering back to their (the
pickets') remarks." DiFiore mounted the steps and said to
Rose Lopez, "What are you looking at? You are looking at
me like I am animal." Rose Lopez said: "If that is what
you are saying, then what can I say?" At this point, accord-
ing to Rose Lopez, she stepped aside and let Rose DiFiore
in. Rose Lopez denied that either she or anyone else at-
tempted to prevent DiFiore's entrance. She also denied
that DiFiore was delayed in entering while they were pre-
sent in the doorway.
Mae Tomaselli denied being in the doorway. She denies
at anytime that morning preventing Mrs. DiFiore from
coming into the shop or blocking her way. She does not
recall exactly where she was in the doorway and denies
that she had a conversation with Rose DiFiore
Jeanine Evangelista, Rose Lopez' sister, testified that the
three ladies were standing in the door watching the picket-
ing. She testified that DiFiore simply walked in and had a
brief exchange of conversation with Rose Lopez, in which
DiFiore said: "What are you locking at? You are looking
at me like I am animal." The witness heard her sister say:
"You said it, not I." She denied anybody tried to stop Mrs.
DiFiore from coming into the plant and she denied that
she tried to stop DiFiore. She testified that they all were
standing in the front leading into the doorway; that she
11
At this late date, I cannot credit that she had never seen a picket line
69
and her sister were about 1 foot inside the doorway; and
that she and her sister stepped aside. She testified that she
did not recall whether Rose DiFiore said: "Get out of my
way, you are blocking my way" or anything similar to that.
Mrs. Evangelista also stated that Mae Tomaselli was not
there and was going back and forth preparing work for the
girls.
I conclude on the basis of all the testimony relating to
this incident that, assuming, arguendo, Tomaselli, Lopez,
and Evangelista did stand in the doorway, and did stand in
the doorway for several seconds facing Rose DiFiore, the
evidence fails to show that they stood there for the purpose
of blocking her ingress into the plant. Rather, I credit them
that they were watching the pickets and that they stood in
front of Rose DiFiore but permitted her to enter upon her
request. DiFiore's testimony indicates only that the door
was crowded, not that there was intentional blocking. In
this regard, DiFiore's direct testimony, implying that she
pushed her way through, was altered on cross-examination
to show no physical touching. I do not credit DiFiore or
Laufman insofar as they testified that DiFiore pushed her
way in. In short, I do not find that they intentionally
blocked her ingress. I therefore conclude that, contrary to
paragraph 10(d) of the complaint, as amended, there was
no harassment in that Mae Tomaselli attempted to deny
Rose DiFiore access into the employer's premises during
worktime because of DiFiore's activities on behalf of the
Union. I shall therefore recommend that paragraph 10(d)
of the complaint be dismissed because of insufficient proof
therefor. Rather, I conclude that what actually happened
in the confrontation was that the employees indeed were
watching the pickets from the doorway and that Rose Di-
Fiore, somewhat self-consciously, believed that the em-
ployees were staring at her and singling her out. When they
stood in the doorway momentarily, she told them that she
wanted to go to work and they should get out of the way.
When they did not immediately give way, this brought
forth Rose DiFiore's question of Rose Lopez regarding
whether Rose Lopez was looking at her like "an animal."
The incident, above, is based on a resolution of conflict-
ing hostile testimony. I do not accept the testimony of
Respondent's employees who testified on Respondent's be-
half against the interest of the Charging Party and Rose
DiFtore at face value. With the possible exception of Mil-
dred Morgret, I found the testimony of Rose Lopez, Uana
Gaglias,'2 and Jeanine Evangelista to be openly biased and
their attitude vindictive both against the Charging Party
and Rose DiFiore. Similarly I do not credit Mae Tomaselli
in her statement that she was not even in the doorway. I
was impressed with the ill-concealed belligerence of the
employee-witnesses on behalf of the Respondent, including
Rose Lopez' testimony that, when Rose DiFiore handed
her the union card, she ripped it up. On the other hand, I
am unable to credit the testimony of Union Organizer
Barbara Laufman who testified that, while standing below
the staircase leading up the entrance to the factory, she
overheard the complete conversation between Rose Di-
Fiore and the employees, including Mae Tomaselli, who
12
DiFiore and Gaghas came close to a physical confrontation over an
incident involving Gaglias breaking DiFlore's "thread" on her sewing ma-
chine during this period
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were allegedly blocking the way of Rose DiFiore into the
factory. I also conclude that DiFiore exaggerated the time
and effort necessary to gain entrance
D. The Constructive Discharge of DiFiore on June 2, 1975
Rose DiFiore testified that, subsequent to the picketing
on May 13, she noticed that the employees were shying
away from her and would minimize conversations with her
on the coffeebreaks , smoking breaks , and at other times.
She testified that fellow employees would answer her short-
ly if she addressed them but would not continue the con-
versation with her.
DtFiore testified that on a daily basis, commencing May
7, 1975, she reported the happenings in the factory to
Union Agent Barbara Laufman. Commencing on and after
May 13, 1975, she told Laufman that the working condi-
tions in the shop were bad, that the employees were not
talking to her and she couldn't take it much longer. Prior to
June 1, 1975, Laufman told her to quit if things got too
bad. On or about June 1, 1975, Laufman told her to quit,
go on unemployment, and the Union would take the posi-
tion that she had been constructively discharged.
On June 2, 1975, at 10.30 a.m., Rose DiFiore testified
that she took her workbook over to Mae Tomaselli and
said: "I'm fed up, I'm fed up-these girls were told not to
talk to me " Tomaselli denied this. She then submitted her
production book 13 to Tomaselli who asked her what she
wanted her to do with the book. At that point Mae Toma-
selli entered the production figures of DiFiore's production
and returned the book. Rose DiFiore left and never re-
turned to work. The instant charges were thereafter filed
and resulted in this proceeding.
Paragraph I 1 of the complaint, as amended, alleges that
on or about June 2, 1975, Respondent discharged its em-
ployee Rose DiFiore. Paragraph 10(a) alleges that Respon-
dent caused employees to not speak to DiFiore and to iso-
late her The General Counsel alleges, and the case over
Respondent's objection, was tried on the theory that the
word "discharge" in the complaint carried within it the
concept of a "constructive discharge." It is uncontested
and Respondent admits that since June 2, 1975, Respon-
dent has never offered to reinstate Rose DiFiore to any
position. The record shows that Rose DiFiore has never
asked for reinstatement and has never returned to the shop.
The Charging Party and General Counsel take the position
that in view of all of the violations of Section 8(a)(1) by
Respondent, including urging her to quit and causing the
employees to harass and ostracize her, this amounts to a
constructive discharge. However, I find that Respondent's
treatment of DiFiore, insofar as it included conduct viola-
tive of Section 8(a)(1) of the Act by threats, interrogation,
and even urging her to quit and the employees to speak up
against DiFiore and in spite of occasional employer-con-
doned yelling by employees-all directed at DiFiore-is
comparable to the situation only of that in which the
employer's unfair labor practices are designed to thwart
the employee's union activities while retaining her as an
employee. In such circumstances , an employee is not enti-
tled to abandon employment promptly upon the commis-
sion of such unfair labor practices and claim the benefits of
a constructive discharge. J. W Mays, Inc., 147 NLRB 942-
943, 944 (1964), enfd. as modified 356 F.2d 693 (C.A. 2,
1966). Open solicitation of resignation for discriminatory
reasons is not dispositive, Caddell-Burns Mfg. Co., Inc., 222
NLRB 488 (1976).
Quite apart from the question of any repeated violations
of Section 8(a)(1) directed toward DiFiore , there stands the
question of Respondent being ostracized by coemployees. I
will assume , arguendo, that any such ostracism , unlawfully
initiated or condoned by the employer, would be such a
change in a condition of employment that it would consti-
tute a "constructive discharge" if the employee "quit" as a
result thereof.
In fact, however, there is no evidence that the Respon-
dent, or any of its agents, ever directed or suggested to any
of the employees herein to ostracize or give the "silent
treatment" to Rose DiFiore Moreover, the evidence shows
that even if, contrary to my finding, the Respondent and its
agents urged DiFiore's coemployees to shun and ostracize
DiFiore, the direction of Respondent was not carried out.
According to Rose DiFiore's testimony on cross-examina-
tion, there were employees in the plant who indeed would
speak to her, contrary to any such instruction or direction.
DiFiore, testified, in addition, that she did not bother to
pursue those employees who admittedly did speak to her
because she was either busy with work or else decided to go
out alone on smoking breaks. Thus, on the facts, any such
directions to ostracize Rose DiFiore were unsuccessful and
I so find.
Lastly, and dispositively, there is the fact that the cessa-
tion of employment by DiFiore was precipitated not by
any action, on this record, initiated, condoned, or imple-
mented by the Respondent but rather, according to Rose
DiFiore's own testimony, was caused by Barbara Lauf-
man, perhaps unwittingly. For it was Barbara Laufinan
who, upon learning of DiFiore's dissatisfaction with her
employment conditions at the factory, including the hostil-
ity of coemployees, on more than one occasion suggested
to her a way out, to quit, walk off the job, register for
unemployment, and have the Union argue that there was a
constructive discharge. It was this suggestion by Laufman,
made on or about June 1, the day before Rose DiFiore
walked off thejob, that offered to DiFiore a route carrying
the Union's imprimatur, a way of escaping her difficulties
in the factory.
While the conditions of DiFiore's employment may not
have been ideal, with some hostile coemployees reflecting,
in part , Respondent 's animus, up to the suggestion made
by Union Organizer Barbara Laufman to quit, I find that
the working conditions were at least bearable, and it was
the suggestion of Barbara Laufman that caused Rose Di-
Fiore to leave her employment rather than any preexisting
conditions of which Respondent was the source 14
Thus, under all the circumstances, I do not find that
13 The sewing machine operators enter their production in their work-
books and periodically report these figures to Floorlady Tomaselli who re-
14 Were other factors present, Laufman's suggestion might have been le-
cords the production which is the basis for piece-work payment gally supportable
G. A. DRESS CO., INC 71
there was a "constructive discharge" of Rose DiFiore
either because of the violations of Section 8(a)(1) by the
Respondent or because Respondent changed DiFiore's
conditions of employment through instigating her ostra-
cism . Rather, I find that Rose DiFiore quit. Whether the
employees were ostracizing her or whether Rose DiFiore
failed to pursue those avenues of social interchange which
existed is unimportant to this determination . Thus I find a
failure of proof to show such an employer-sponsored
change in the terms and conditions of Rose DiFiore's em-
ployment as to prove a "constructive discharge " within the
meaning of Section 8 (a)(3) and ( 1) of the National Labor
Relations Act, as amended . I therefore recommend that
insofar as the complaint alleges such a constructive dis-
charge, it be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth above , occur-
ring in conjunction with the operations of Respondent,
have a close, intimate , and substantial 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 has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record of this case , 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. By threatening that Respondent would close its facto-
ry, by threatening that it would discontinue its policy of
permitting its employees to work part time and would
cause them to work hours identical to other employees; by
interrogating its employees ; by urging its employees to
quit ; and by encouraging its employees to urge certain of
its employees to quit, all because certain of its employees
joined or assisted Local 107, ILGWU, AFL-CIO, a labor
organization , Respondent interfered with , restrained, and
coerced its employees and violated Section 8 (a)(1) of the
Act.
4. General Counsel failed to prove, by a preponderance
of the credible evidence , that Respondent refused to con-
sider Anna Arena and Antoinette Jackson for employment
because of unlawful considerations or because of their sup-
port for the Union.
5. General Counsel failed to prove, by a preponderance
of the credible evidence , that Respondent caused the con-
structive discharge of Rose DiFiore.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
Upon the above findings of fact and conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended-
ORDER 15
Respondent , G. A. Dress Co., Inc., Port Jefferson, Long
Island , New York, its officers , agents, successors , and as-
signs, shall-
1. Cease and desist from:
(a) Threatening to close its plant if Local 107, ILGWU,
AFL-CIO, herein called the Union, or any other labor or-
ganization becomes the bargaining representative of its em-
ployees; interrogating its employees concerning their inter-
est in or sympathy for the Union or in any other protected
concerted activity ; urging any employee to quit because of
engaging in any protected concerted activity; encouraging
its employees to urge any of its employees to quit because
of said employees engaging in protected concerted activity,
and threatening to discontinue its policy of permitting
part-time work, or imposing more stringent work rules be-
cause of said activity.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act-
(a) Post at its factory in Port Jefferson , Long Island,
New York, copies of the attached notice marked "Appen-
dix." 16 Copies of said notice , on forms provided by the
Regional Director for Region 29, after being duly signed
by Respondent's authorized representative , shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that notices are not
altered , defaced , or covered by any other material.
(b) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
15 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
16 In the event that the Board ' s Order is enforced by a Judgment of a
United States court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read " Posted Pursuant
to a Judgment of a United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "