Marie Antoinette Manufacturers

National Labor Relations Board - Board Decisions

Sep 28, 1971

193 N.L.R.B. 396 (N.L.R.B. 1971)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Pupillo d /b/a Marie Antoinette Manufacturers
and Local 107, International Ladies ' Garment
Workers Union , AFL-CIO. Case 29-CA-2337
September 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 3, 1971, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
General Counsel filed exceptions to the Trial Examin-
er's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,
conclusions,' and recommendations of the Trial
Examiner, with the modifications noted below.
Based upon the Trial Examiner's findings, and upon
the record as a whole, we substitute the following
conclusion of law for the Trial Examiner's third
conclusion of law:
3. By interrogating an employee concerning her
activities on behalf of the Union and by threatening
its employees with shutdown of its Mastic Beach plant
and with other economic reprisals if they became or
remained members of the Union, the Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified below,
and hereby orders that Respondent, Mary Pupillo
d/b/a Marie Antoinette Manufacturers, Brooklyn,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
Add the following as paragraph 1(a) to the Trial
Examiner's Recommended Order, and reletter the
present paragraphs 1(a) and 1(b) as 1(b) and 1(c),
respectively.
"(a) Coercively interrogating employees concerning
their union membership or activities and threatening
employees with a shutdown or other economic
reprisals if they become or remain union members or
if they give it assistance and support."
I The General Counsel excepts to the Trial Examiner's inadvertent
failure to state specifically in his Conclusions of Law and Recommended
Order those independent violations of Section 8(a)(I) of the Act committed
by Respondent The General Counsel also requests that the Board make
certain modifications in the Appendix to the Trial Examiner's Decision.
While we find merit to the General Counsel's first two exceptions, we feel
the Trial Examiner's Appendix is sufficiently specific
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat . 136), herein called the
Act, was heard at Brooklyn , New York, on June 28, 1971.
The complaint, dated May 5 , 1971, and based on charges
filed by Local 107 International Ladies' Garment Workers
Union, AFL-CIO, herein called the Union, was issued by
the Regional Director for Region 29 (Brooklyn , New York),
on behalf of the General Counsel of the National Labor
Relations Board , herein called the General Counsel and the
Board . The complaint alleged that Respondent, Mary
Pupillo d/b/a Marie Antoinette Manufacturers, had
engaged in and was engaging in unfair labor practices by
discharging its employee , Mary Vecchio , on or about
February 10, 1971, because of her union membership,
sympathies , and activities and by interrogating employees
about their union membership, sympathies , and activities
and threatening its employees with reprisals because of
their union membership , sympathies , and activities, all in
violation of Section 8(a)(1) and (3) of the Act.
Respondent was not represented by counsel and filed no
formal answer to the complaint. However , an undated letter
from Respondent to the Regional Office referring to the
allegations of the complaint was included as part of the
record and accepted as a denial of any unfair labor
practices on the part of Respondent.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material Respondent Mary Pupillo has been
and individual proprietor doing business under the trade
name and style of Marie Antoinette Manufacturers. Since
October 12, 1970, when Respondent commenced opera-
tions, Respondent maintained its principal office and place
of business at Mastic Beach, Long Island, New York, where
at all times material it has been engaged in the business of
sewing and pressing ladies' garments and related products.
193 NLRB No. 66
MARIE ANTOINETTE MANUFACTURERS 397
During the 6-month period from October 12, 1970, to April
12, 1971, which is a representative period, Respondent in
the course and conduct of its business operations caused to
be manufactured, sold, and distributed at its Mastic Beach
plant, sewn and pressed ladies' garments and other
products valued in excess of an annual rate of $50,000
which products were furnished to Impact Juniors, Inc., and
to Easy Street Fashions, Inc., New York City employers,
each of which annually produces ladies' garments and other
goods valued in excess of $50,000 which each ships to
customers directly out of the State of New York. At all
times material Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
finished her work Vecchio walked over to Josephine
Castaldo and asked her if she wanted a ride home. About
what then took place Vecchio testified as follows:
She turned around and spoke to Mary Pupillo and
asked her if she would drive her home. So Mary turned
around and said, "Thanks to Mary Vecchio, I'm going
to be stuck here all hours of the night." I spoke up, I
said, "Look, if you are going to talk to me, talk to me;
I'm standing here." She talked to me. She raised her
voice at me and screamed at me. She cursed at me. She
accused me of being an organizer for the Union, that I
got paid by the Union.
11
II. THE LABOR ORGANIZATION
Local 107, International Ladies' Garment Workers
Union, AFL-CIO, at all times material , has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Mary Vecchio, a woman of some 30 years' experience as
a sewing machine operator, was hired by Respondent
(whose business had been in operation only about 2 weeks
at that time) as a sewing machine operator sometime in
October 1970. Prior to this time Vecchio had been a fellow
employee in the garment industry with Mary Pupillo,
Respondent's proprietor Prior to her employment by
Respondent, Vecchio for some 12 years had been a member
of Local 107, the Charging Union.
When Vecchio started working for Respondent there
were seven or eight employees most of whom she knew and
at least three of whom were union members. Before going
to work for Respondent Vecchio called the Union's
business agent and was given "permission to go to work
there" being told that "It was going to be a union-shop."
According to Vecchio this was confirmed by Mrs. Pupillo
also. Vecchio further testified that she and Pupillo
"constantly discussed the Union." Pupillo "said she was
going to join the Union if she could get Union work." A few
times she asked Vecchio, "What do you need it for? What
did it ever do for you?" Vecchio replied that she had been in
it long enough and "needed the benefits."
According to Vecchio's further testimony about Februar-
y 4 or 5, 1971, when she got back from lunch about 12:30
"everybody was very nervous and tense." Pupillo was very
upset because the union officials had just been in and had
told her that she had "to go into the Union, ..." Pupillo
indicated that she had no intention of complying with the
Union's request. According to Vecchio, Pupillo further said
"that nobody was going to tell her what to do." She further
said she had no intentions of joining the Union and that
"there were a couple of troublemakers she was going to get
rid of." Pupillo also said that if the employees "wanted to
work in a union shop, (they) couldn't stay in her shop."
February 10, 1971, was the last day that Vecchio worked
for Respondent. At the end of the shift after she had
I The evidence shows that it is Respondent's practice to hold back I
week 's pay and that normally only when one is terminated would she
receive 2 weeks' pay at one time
... She cursed my family, which we should all
spend all of our money on the doctor. . . . All of the
bad luck you wish on me, you should have back. All of
the crazy kind of talk. She screamed and ranted like a
maniac. I tried to talk to her calmly and cooly. She
would not listen. I never lost my temper. In fact, her
daughter stood there and screamed at me.
Regarding a girl that Vecchio had recommended for
employment and who had worked for Respondent a short
time Vecchio testified further as follows:
(Pupillo) said, "I brought the girl in and I was the one
that made her quit by involving the Union, by
organizing the shop. This was why the girl quit. This is
what she said to me. She said it was my fault.
I was the troublemaker. She had heard it from
various shops. She said she was told not to hire me and
she hired me anyway. She said she did not need me in
the shop, you know, that I should not be there, get out,
do not come back. All of this nonsense.
During this same conversation according to Vecchio's
further testimony Pupillo in substance said that she was
going to put a lock on the door before she recognized the
Union and that no one was going to tell her what to do.
Pupillo also asked Vecchio how much the Union paid her
for organizing the shop. Vecchio denied that she was an
organizer for the Union and was just a worker. At this
point, Vecchio testified, she took her things and left.
Vecchio did not come back to the shop until payday
which was on Friday. At that time Pupillo gave her the 2
weeks' salary that she had coming and made her sign a
release for it.i According to Vecchio's further testimony at
no time did she tell Pupillo that she was quitting nor did she
"do anything either by some symbolic act or otherwise .. .
to show that (she was) quitting her employment... .
According to Vecchio she wanted to work there. She liked
the place, it was close to her house.2 Moreover, her
daughter was expecting a baby any day and it made it
convenient for her to get back home in case she was called.
Vecchio further testified that although Pupillo never
complained to her about the quality or quantity of her work
2 It was some three or four blocks from Respondent's shop which
enabled Vecchio to go home for lunch each day.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she did make some such comments to other employees in
Vecchio's absence.3
Josephine Castaldo, a member of the Union, testified at
the call of the General Counsel. She corroborated Vecchio's
testimony that Pupillo referred to Vecchio as a troublemak-
er. She also testified that Pupillo had told Vecchio in the
February 10 discussion "that she didn't want her in the
shop" and also asked Vecchio what she was getting paid
from the Union." According to Castaldo's further testimo-
ny in the exchange between Pupillo and Vecchio, Pupillo
"was aggravated" and "angry." In contrast Vecchio seemed
to remain calm.
Respondent was not represented by counsel, but both
Mr. and Mrs. Pupillo testified. The substance of their
testimony was that Vecchio was "a bad worker"; that she
did not do her work properly and that it had to be done
over. According to Mrs. Pupillo that was the reason that she
"didn't want" Vecchio, and that "the Union had nothing to
do with it." Notwithstanding this testimony Mrs. Pupillo
denied that she discharged Vecchio claiming that the latter
quit. She also testified about this matter in part as follows:
And then Benyai (a union official) 2 days later, he
took the girls out, 2 or 3 days later. They came on a
Tuesday morning. Friday morning he took the girls out.
I had to fight with her because I says to her . . . Mary
Vecchio-I had a fight with her because I said, "Why
did you bring the Union over to Chris's house? That girl
don't want to come and work here no more because she
don't want to cause me trouble." That was the whole
thing. That girl didn't want to show up on account of
her. She said, "I have enough with the Union. I don't
want no part of it We had enough with the other shop."
Because . . . the shop closed up and they never got
vacation money. They owe me for 4 holidays and a
vacation check, the Union. That's for absence, the
Union. 4 holidays and a vacation check. It is over $150
they owe me. Everybody else has the same thing in the
area. The people, when they get a certain age, they try to
get all kinds of excuses so they don't give them no old
age pension, no holidays or nothing. And then he
wanted to tell me and my shop what to do.
I said, "Give me a jobber, and I'll join the Union."
He said, "No, you have to go and look for it on your
own." I said, "I can't find it." Then he sent me a
telegram saying that the talks are still open, that he can
still talk about it. I had nothing with the Union. I had
no papers signed or anything. I mean, they took out the
4 girls, so what have Ito do with the Union? Am I right
or wrong? Why do I need a Union when he took out all
of the girls that I was stuck there with, 1000 dresses in
the shop, and plus they told everybody else in the
neighborhood not to come in because I was not paying
the right amount of money on the dresses. I could show
you, your honor, in black and white if I was getting
$4.25 and $2.50, I gave them the least was $.25 to $1.35 I
gave them, plus the pressing and everything else. I did
not get $.40 out of the dress and I had to pay all of my
3 Vecchio testified that while Pupillo always referred to the caliber of
the work being done by the employees as "garbage" this characterization
by Pupillo apparently was accentuated after the visit from the union
officials
4 Testifying in rebuttal Vecchio was asked if she had told Pupillo on this
expenses besides. That's the kind of people I dealt with.
Because I tried to be too good to them I got it in the
neck. And then all of the girls told them not to come to
the shop. Do you think that's a fair question? That's a
union. That's like being in Russia. If he wanted to be a
human being and be in my shop, he could have come in
like a human being, he would have given me a jobber, I
would have signed the papers and everything would be
fine. I wanted to join the Union. I am a union member
since 1939. Do you think I would have said no to the
Union. But when it comes to cases like this, forget it,
who needs it. I do not want no aggravation. And then
workers like that, forget it, because once I join the
Union I could not let her out of the shop for any
amount of money. And plus, I did not fire her. That is a
lie. We were arguing about this girl that stayed home
that day. And I says to her, I says . . . I told her all
kinds of words because I was mad. Here I am stuck .. .
the jobber needs the work and I could not ship it out. I
said to her, "You have some hell of a nerve," excuse the
expression, "to do that, make that girl stay home today
because she did not want to give me trouble." "Oh, not
me. Here, I'm giving you my book any way," she said.
"I'm not coming in no more."4 Those are the words that
came out of her mouth. I did not fire her. I wish I did.
Then I would have an excuse to be here today. That is
the only reason I am here. I am not here to fight the
Labor Department, I am not here to fight the Union, I
am just here to fight that she's a liar, that she lied for
that. She gave me her book and she said, "Here is my
book. I'm not coming in no more ." Those are the words
she told me. I did not tell her to get out of the shop, I did
not tell her I did not want her no more. When she gave
me the book and said she was not coming in any more, I
said, "Thank God. Believe me , I don't need you. I'm not
going to miss you." Those are the words I told her.
That's the God's honest truth. I hate people when they
try to lie. Don't lie. Say things the way they are. I did
not say that I did not want tojoin the Union. She herself
told me many times , "Mary, who cares about the
Union. I have the book, I have to stay with it." If she
wanted to join the Union, I did not care. She told me
she did not want to join the Union really. Now all of a
sudden she is all union. She lied about it, too. That is all
I have to say, your honor.
s n s s t
.. . Before she walked out of the shop, she says to me,
"I want to know what you are going to do." I said, "If it
has got to be like this, I don't want no Union. I would
rather put a lock on the door." If I am going to have so
much trouble, forget about it, who needs it.
Notwithstanding all the foregoing Pupillo also admitted in
her testimony that she did tell Vecchio that she was a
troublemaker for bringing the Union in, for having
Christine join the Union and for letting the Union know
occasion "here is my paybook" and answered , " I don't remember doing
any such thing " The General Counsel then asked , "Now, you use the
expression you don't remember I'm saying , did you or didn't you?"
Vecchio's answei was, "No, I didn't I don 't remember seeing the book at
all"
MARIE ANTOINETTE MANUFACTURERS 399
Christine's address. In her own words Pupillo testified that
she did not "think she (Vecchio) had any right to bring the
Union over there."
Conclusions
There is no question but that the record clearly
demonstrates that Respondent was discriminatorily moti-
vated against Vecchio within the meaning of Section 8(a)(3)
of the Act and I so find. Nor, in my view, is there any
question that when Vecchio left Respondent' s premises on
February 10 both Vecchio and Pupillo were under the
impression that the employment relationship was ended. As
to whether or not Vecchio was discharged or quit I feel is
unnecessary to definitely decide since in my view the
conduct of Pupillo (in which connection I credit the
General Counsel's witnesses) was such that if Vecchio did
quit it was as a result of the verbal abuse being
administered her by Pupillo and tantamount to being
constructively discharged. See N.L.R.B. v. Tennessee
Packers, Inc., Frosty Morn., Div., 339 F.2d 203 (C.A. 6) and
cases cited therein. Thus, whether or not Pupillo in so many
words said "You are discharged" is immaterial since her
actions made it clear that she did not want Vecchio in her
employment and Vecchio reacted accordingly. Thus I find
that Vecchio' s termination violated Section 8(a)(3) of the
Act.
As for the 8(a)(1) allegations of the complaint I also find
that the record fully sustains them. Thus, the alleged
interrogation is shown by Pupillo's asking Vecchio what she
needed the Union for and what did the Union ever do for
her. The alleged threats of economic reprisals are shown by
Pupillo's statements to the employees that they could not
stay in her employment if they wanted to work in a union
shop and that she would put a lock on her door before she
would recognize the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation 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.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged Mary Vecchio
for engaging in activity protected by the Act, I will
recommend that Respondent be ordered to offer her
immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her
seniority and other rights and privileges, and make her
whole for any loss of earnings she may have suffered by
payment to her of a sum of money equal to the amount she
normally would have earned as wages from the date of her
discharge to the date of an offer of reinstatement, less net
earnings during said period, with backpay computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294,
including interest as held in Isis Plumbing & Heating Co.,
138 NLRB 716.
I shall also recommend that Respondent preserve and
make available to the Board, upon request, payroll and all
other records necessary to facilitate determination of the
amount due under this Recommended Order.
In view of the nature of the unfair labor practices
committed, I am of the opinion that the commission of
similar unfair labor practices may be reasonably anticipat-
ed. I shall therefore recommend that Respondent be
ordered to cease and desist from infringing in any other
manner upon the rights guaranteed its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Mary Pupillo d/b/a Marie Antoinette Manufactur-
ers is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 107, International Ladies' Garment Workers
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
prescribed by Section 8(a)(1) of the Act.
4. By discharging Mary Vecchio because of her union
membership, sympathies, and activities thereby discourag-
ing membership in the aforesaid labor organization,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that Respondent, its agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of
Local 107, International Ladies' Garment Workers Union,
AFL-CIO, or by any other labor organization, by
discharging or in any other manner discriminating against
them in regard to their hire or tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
Local 107, International Ladies' Garment Workers Union,
AFL-CIO, or any other labor organization to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Mary Vecchio immediate and full reinstatement
to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of pay she may have suffered
as a result of the discrimination against her in the manner
provided in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, timecards, personnel records and reports,
and all other records necessary to analyze and determine
the amount of backpay due under the terms of this
Recommended Order.
(c) Post at its place of business in Mastic Beach, New
York, copies of the attached marked "Appendix." 5 Copies
of said notice on forms provided by the Regional Director,
Region 29, shall be posted by it, immediately upon receipt
thereof, after being duly signed by Respondent, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from receipt of this Decision, what
steps the Respondent has taken to comply herewith .6
S In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of the 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 "
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Director for
Region 29, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that-
WE WILL NOT discourage membership in or activities
on behalf of Local 107, International Ladies' Garment
Workers Union, AFL-CIO, or any other labor
organization, by discharging employees or in any other
manner discriminating against them in regard to their
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT illegally interrogate our employees
concerning their union membership or activities.
WE WILL NOT threaten our employees with a
shutdown or other reprisals if they become or remain
members of Local 107, International Ladies' Garment
Workers Union, AFL-CIO, or give it assistance and
support.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain 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, and to
refrain from any or all such activities.
WE WILL offer Mary Vecchio immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or any other
nghts and privileges previously enjoyed, and make her
whole for any loss of pay she suffered as a result of the
discrimination against her.
All of our employees are free to become or remain, or
refrain from becoming, members of Local 107, Internation-
al Ladies' Garment Workers Union, AFL-CIO, or any
other labor organization.
Dated By
MARY PUPILLO D/B/A
MARIE ANTOINETTE
MANUFACTURERS
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Fourth
Floor, 16 Court Street, Brooklyn, New York 11241,
Telephone 212-596-3750.