Workroom For Designers, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1985

274 N.L.R.B. 840 (N.L.R.B. 1985)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workroom For Designers , Inc. and Sidney H. Sissel-
man, an Individual and International Ladies'
Garment Workers Union , AFL-CIO. Cases 1-
CA-19731, 1-CA-19797, 1-CA-19903, 1-CA-
20007, 1-CA-20157, 1-CA-20218, 1-CA-
20442, and 1-CA-20521
12 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 June 1983 Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The
Respondents, the General Counsel, and the Charg-
ing Party each filed exceptions and a supporting
brief. i
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended Order
as modified.
I Thereafter, the General Counsel filed a motion to reopen the record
to introduce previously unavailable evidence on the issue of the personal
liability of Respondent Sidney H Sisselman Subsequently, the General
Counsel filed a futher motion to reopen record The evidence sought to
be introduced consists of selected testimony and a report of a special
master relating to proceedings involving the Respondents pursuant to
Sec 10(1) of the Act See Fuchs v Workroom For Designers, Inc, Civil
Action No 82-0370-F, 116 LRRM 2324 (1984) The motions are denied
inasmuch as the evidence sought to be introduced is unnecessary to our
conclusion that Respondent Sisselman properly was named as a respond-
ent in the instant case See discussion infra Moreover, although the Gen-
eral Counsel supplied certain documents with the first motion, the second
motion contains only assertions of fact, without supporting documenta-
tion, and a request that the Board refrain from making its decision until
certain documents can be made available We have decided that the pur-
poses of the Act would be better effectuated by the issuance of this deci-
sion
2 The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
3 No exceptions were filed to the judge's finding that the discharged
unfair labor practice strikers are entitled to backpay from the date of
their discharges
In adopting the judge's conclusion that Sidney Sisselman's interroga-
tions of employees before the strike violated Sec 8(a)(1) of the Act, we
do so for the reasons set forth in Rossmore House, 269 NLRB 1176
(1984), which overruled PPG Industries, 251 NLRB 1147 (1980)
In adopting the judge's recommended bargaining order, we find it un-
necessary to rely on his finding that the unfair labor practices occurred in
a "small plant "
No exceptions were filed to the judge's finding that Sidney Sisselman's
letter to employees dated 15 April 1982 contained an unlawful threat
In adopting the judge's conclusion that no bona fide general offers of
reinstatement were made to the discharged employees during the strike,
we find it unnecessary to rely on the failure of Sidney Sisselman's letters
to employees, dated 2 and 15 April and 3 and 25 June 1982, to recognize
that the employees had been discharged and explicitly to offer the em-
ployees reinstatement
The judge omitted several discriminatees from his recommended Order
and notice We correct this inadvertent error
In adopting the judge's finding that Bernadette Holmes was not con-
structively discharged, we do not condone the obscene comments direct-
Respondent Workroom For Designers, Inc.
(Workroom) operates a clothing factory in Pitts-
field, Massachusetts. Respondent Sidney H. Sissel-
man is the sole shareholder and officer of the cor-
poration In February 1982,4 the Charging Party
began an organizing campaign among the Respond-
ents' employees, who previously were unrepresent-
ed. By 31 March, 55 of the Respondents' 76 em-
ployees had signed valid authorization cards desig-
nating the Charging Party as their collective-bar-
gaining representative, and 5 more employees
signed cards by 2 April. A strike began on 31
March and ended about 2 September. The Re-
spondents did not except to the judge's finding that
they committed numerous violations of Section
8(a)(1) of the Act before, during, and after the
strike, including interrogations, surveillance,
threats, assaults, and harassment, and they stipulat-
ed to their union animus. Furthermore, we are
adopting the judge's findings that the Respondents
discriminated against most of their employees in
violation of Section 8(a)(3) of the Act. These fac-
tors form the basis for our adoption of the judge's
recommended Order that the Respondents bargain
in good faith with the Union pursuant to NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969); we agree
with the judge's finding that it is unlikely, if not
impossible, that our traditional remedies short of a
bargaining order would dispel the coercive atmos-
phere created by the Respondents.
1. The Respondents contend that the judge erred
in granting the General Counsel's motion at hear-
ing to name Sidney H. Sisselman as a respondent.
They point out that the Board has not, in the past,
held shareholders or corporate officers personally
liable for unfair labor practices absent some evi-
dence that such individuals have somehow disre-
garded the corporate form by, for example, comin-
gling corporate and personal assets or dissolving
ed at her by Sidney and Brian Sisselman Nonetheless, the judge's conclu-
sion that her treatment was not so onerous as to make her continued em-
ployment intolerable is well supported Thus, she continued to work after
hearing the Sisselmans' obscene comments and left her job only after the
plant manager had directed her to use a timing machine, which was used
by other employees as well, to help improve her productivity Moreover,
we note that the plant manager offered to reduce her production pace
but Holmes declined In these circumstances, we concluded that Holmes'
working conditions were not "so 'difficult or unpleasant' as to force res-
ignation " Algreco Sportswear Co, 271 NLRB 499, 500(1984) (emphasis in
original)
Member Dennis would find that the Respondents constructively dis-
charged Bernadette Holmes when she returned to work after the strike
In Member Dennis' view, the Respondents' conduct, including Brian Sis-
selman's repeated reference to Holmes as "a fucking piece of shit," and
Sidney Sisselman's consistently abusive behavior towards her, objectively
was so intolerable as to force her to resign The Respondents' treatment
of Holmes was part of their pattern of discouraging strikers from seeking
reinstatement and from staying on the job after reinstatement Holmes'
circumstances were far more onerous than the relevant employee's in Al-
greco Sportswear Co
4 Hereinafter all dates are 1982 unless otherwise noted
274 NLRB No. 115
WORKROOM FOR DESIGNERS
the respondent corporation and forming a new
entity.' We agree with the Respondents that there
is no evidence that Sisselman has disregarded the
corporate form of Workroom. However, because
of the unique facts of this case, we adopt the
judge's conclusion.
As noted above, Sisselman is the only sharehold-
er and officer of Workroom. Sisselman and mem-
bers of his family have operated other corporations
in the same industry in the past, and there is some
evidence that he owned another factory near
Workroom at the times relevant to this case. Al-
though a plant manager and several supervisors
were used at Workroom during the relevant times,
and although Sisselman was not present every day,
he played a major role in the direct supervision of
employees and he managed and controlled the fac-
tory. Most of the unfair labor practices found by
the judge, which were numerous and egregious,
were committed by Sisselman. Moreover, we note
that on 19 November, the United States District
Court for District of Massachusetts issued an in-
junction pursuant to Section 10(1) of the Act which
ordered the Respondents, inter alia, to reinstate dis-
charged strikers, bargain with the Union, and cease
and desist from engaging in various types of con-
duct that would constitute violations of Section
8(a)(1) of the Act.6 The Respondents continued to
engage in unlawful conduct after the issuance of
the injunction and, by the close of the hearing in
the instant case, 34 strikers had not yet been rein-
stated. The most important factor in our resolution
of this issue, however, is Sisselman's admission at
the hearing that he planned to avoid any liability
for backpay.7 In view of Sisselman's disregard for
his employees' Section 7 rights, his admitted inten-
tion to avoid paying them any backpay award re-
quired by law, and his reaction to an injunction
issued by a United States District Court, we find
that naming him as a respondent at this time8 will
effectuate the purposes and policies of the Act.
5 See Campo Slacks, The, 266 NLRB 492, 492 fn 1, 500 fn 18 (1983),
Ski Craft Sales Corp, 237 NLRB 122 (1978), Ogle Protection Service, 149
NLRB 545, 546 fn 1 (1964), enfd in relevant part 375 F 2d 497 (6th
Cir ), cert denied 389 US 843 (1967), Industrial Fabricating, 119 NLRB
162 (1957), enfd 272 F 2d 184 (6th Cir 1959)
6 Fuchs v Workroom For Designers, Inc, Civil Action No 82-0370-F
Sidney Sisselman and his son Brian Sisselman were named respondents in
that proceeding
' Sisselman answered the following questions in the affirmative "You
were intending to set yourself up so you were judgment proof so these
employees will never see the backpay that is rightfully theirs isn't that
correct" and "[Were you planning] ways to avoid the backpay liability if
it is determined there is one'?" We also note a portion of Sisselman's per-
sonal diary that was read into the record "How to set up a future to
escape backpay "
8 Of course, corporate officials may be held personally liable for back-
pay at the backpay stage of an unfair labor practice proceeding if they
actually disregard the corporate form after the Board has determined that
Sec 8(a)(3) of the Act has been violated See Concrete Mfg Co, 262
NLRB 727 (1982) See also NLRB v C C C Associates, 306 F 2d 534 (2d
841
2. The General Counsel excepts to the judge's
failure to find that the Respondents unlawfully
denied work opportunities to the reinstated strikers
by subcontracting work they could perform after
they were reinstated. The General Counsel con-
tends that such a violation was alleged in a para-
graph of the complaint which states: "At various
times since on or about December 2, 1982 . . . Re-
spondent has laid off and failed to offer work to
various employees, including [two named employ-
ees]." We do not agree with the contention that the
complaint sufficiently alleged unlawful subcontract-
ing. Additionally, no party claimed unlawful sub-
contracting before the judge at the hearing, and the
matter was not fully litigated. Therefore we find
no violation in this regard.
3. The Charging Party requests that the Board
order extraordinary remedies for the unfair labor
practices committed by the Respondents. Specifi-
cally, the Union argues that the Respondents
should compensate it for legal fees and expenses re-
lated to its prosecution of the unfair labor practice
charges and for its organizing expenses incurred
after 31 March. Furthermore, the Union contends
that the Respondents should be ordered to mail the
attached notice to employees to each employee of
the Respondents and publish the notice in newspa-
pers of general circulation in Berkshire County,
Massachusetts, where the plant is located.
We agree with the Charging Party that the Re-
spondents' unfair labor practices were flagrant. The
Respondents repeatedly violated Section 8(a)(1)
and (3). Every unfair labor practice striker was dis-
charged, employees and union agents were assault-
ed and threatened with bodily harm and death, and
the Respondents' failure to reinstate or fully rein-
state many of the discharged strikers continued
through the hearing. On the other hand, the Union
obtained the support of the majority of the employ-
ees before the strike commenced and evidently
maintained that support throughout the 5-month
strike. More important, we are adopting the judge's
recommended Order that requires the Respondents
to bargain in good faith with the Union.
With these considerations in mind, we shall
order the Respondents to mail a copy of the at-
tached notice to all of their employees employed
since the Respondents began the course of unlaw-
ful conduct. In view of the Respondents ' flagrant
and repeated violations of the Act, it is essential
that each employee be made individually aware of
her or his statutory rights and that her or his exer-
Cir 1962) However, we conclude that the circumstances of this case
militate against waiting to see whether Sisselman acts on his stated inten-
tion to avoid his legal obligations
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cise of those rights will be respected by the Re-
spondents. Morever, because the notice is quite
long, each employee should have an opportunity to
read and absorb it fully.9 However, because this
remedy will achieve the stated purposes and be-
cause the Union has no further need to engage in
organizational activities, we deem unnecessary the
publishing of the notice in newspapers.
Also, an award of legal fees and expenses would
not be appropriate in this case. As we explained in
Heck's Inc., 215 NLRB 765, 767 (1974), our policy
is "to refrain from assessing litigation expenses
against a respondent, notwithstanding that the re-
spondent may be found to have engaged in `clearly
aggravated and pervasive misconduct' . . . where
the defenses raised by that respondent are 'debata-
ble' rather than `frivolous."' Our review of the
record as a whole and of the Respondents' excep-
tions and supporting brief convinces us that their
defenses were "debatable" rather than "frivolous."
The merits of several of the complaint 's allegations
turned on credibility resolutions and the issues of
Sisselman 's individual liability and the Union's al-
leged misconduct, discussed infra, raised unusual
legal questions, despite the Respondents' commis-
sion of numerous outrageous unfair labor practices.
As for organizing expenses incurred by the
Union after 31 March, we find it unnecessary to
award such costs in order to remedy the Respond-
ents' unfair labor practices. As noted above, a ma-
jority of the Respondents' employees had signed
valid authorization cards by 31 March. We are
adopting the judge's finding that the Respondents
have refused to recognize and bargain collectively
with the Union in violation of Section 8(a)(5) and
(1) of the Act since 2 April, the date on which the
Union's demand for recognition was rejected.
Thus, this is not a case where an employer's unfair
labor practices have interfered with a union's at-
tempts to obtain the support of a majority of the
employees.10 To the extent that those unfair labor
practices interfered with the Union's efforts to
become the legally recognized exclusive collective-
bargaining representative of the Respondents' em-
ployees, the bargaining order is a sufficient remedy.
4. The Respondents request the Board to consid-
er the conduct of the picketers and the union
agents when reviewing the judge's findings of
8(a)(1), (3), and (5) violations and the bargaining
order. The record shows that the picketers, fre-
quently under the observation of police officers,
marched close to the doors of the plant and often
delayed vehicles entering and leaving the plant.
9 United Supermarkets, 261 NLRB 1291, 1294 (1982), Loray Corp, 184
NLRB 557, 558 (1970)
10 Cf Loray Corp, supra
Also, some of the vehicles leaving the plant were
followed by union agents and employees so that
they could determine whether work normally per-
formed in the plant was being taken elsewhere.
Several acts of vandalism occurred, but only one of
them was shown to have been caused by a union
agent or striker. Management officials and employ-
ees who worked during the strike often were the
recipients of verbal abuse from the picketers, some-
times of a sexual or ethnic nature, and Brian Sissel-
man testified he was once kicked and once
punched by a union agent and once hit by a picket.
We interpret the Respondents' argument as a de-
fense to the bargaining order under the Laura
Modes doctrine. i 1 Under the circumstances of this
case, however, we find that the misconduct of the
Union and its employee adherents was insufficient
to defeat the remedial bargaining order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondents, Workroom For De-
signers, Inc., and Sidney H. Sisselman, Pittsfield,
Massachusetts, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge,
plant closure, and plant removal.
(b) Threatening to "get," "hit," "spit upon,"
"kill," "burn," or otherwise assault employees.
(c) Physically assaulting or spitting on employees
and union representatives.
(d) Solicting employees and others to assault
striking employees.
(e) Interrogating employees concerning their
union activities and the union activities of other
employees.
(f) Creating the impression of surveillance of the
employees' union activities.
(g) Promising benefits to employees if they
would abandon the strike.
(h) Telling employees that they were being dis-
charged because of their union activity and telling
striking employees that they would never be rein-
stated.
(i) Threatening striking employees that they
would be treated as having quit or would other-
wise lose their jobs unless they abandon the strike.
(l) Harassing reinstated unfair labor practice
stikers and others who were seeking reinstatement
and attempting to force them to quit or to discour-
age them from returning to work.
" Laura Modes Co, 144 NLRB 1592 (1963)
WORKROOM FOR DESIGNERS
(k) Threatening to impose more onerous working
conditions on reinstated unfair labor practice strik-
ers.
(1) Discriminatorily discharging employees be-
cause of their union activities and in order to dis-
courage membership in or activities on behalf of
the International Ladies' Garment Workers Union,
AFL-CIO.
(m) Failing and refusing to reinstate unfair labor
practice strikers upon their unconditional applica-
tion for reinstatement in a proper and timely
manner.
(n) Laying off and failing fully to reinstate rein-
stated unfair labor practice strikers while retaining
strike replacements to perform the same work
which the unfair labor practice strikers had per-
formed.
(o) Refusing to recognize and bargain with the
Union as the exclusive bargaining representative of
the employees in the following unit:
All production and maintenance employees in-
cluding cutters , stitchers , floorworkers, inspec-
tors and mechanics , employed by the Employ-
er at its Pittsfield, Massachusetts location, but
excluding office clerical employees, profession-
al employees , and contract administrators,
managerial employees , guards and supervisors
as defined in the Act.
(p) In any other manner interfering with, re-
straining , or coercing its employees in the exercise
of their rights to self-organization , to form , join, or
assist the International Ladies' Garment Workers
Union, or any other labor organization , to bargain
collectively through representatives of their own
choosing , and to engage in concerted activities for
the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act.
(a) Offer the employees listed below immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority
or other rights and privileges:
Patricia Gage
Robert Sabin
Concetta Ruperto
Rose Notto
Yolanda Potter
Teresa McCormack
Kathleen Sabin
Hannah Bontempo
Catherine Triano
Daniel Corrado
Rose Sayers
Donna Crawford
Irma Dinicola
Regina Lysecka
Deborah Wood
Deborah McGivern
Laura Pike
Ruth Sabin
David Amlaw
Steve Mathes
Ronald Smith
Gloria Civello
B. Williams
Charles Holmes
Marion Smith
Dianna Grace
Gregory Smith
Marie Hebert
Linda Garneau
Shery Briggs
Rose Galvagni
Josephine Daley
Louise Whelan
Thelma Leveille
David Heath
Donna Passons
Catherine Carlo
William Paradysz
Thomas Spargo
John Descensi
Stella Hoffman
Michael Soules
Kevin Fowler
Kathleen Hoffman
Diane Andrzejewski
Susan Barnes
Ann Jamros
Walter Manning
843
and make them and the following named employ-
ees whole for any loss of earnings they may have
suffered by reason of the discrimination against
them , in the manner set forth in the section of the
judge's decision entitled "The Remedy."
Anita Burnham
Leola Demery
Jack Haskell
Candace Cook
Roy Barnes
Rosa Polano
Christina
Christowski
Guiseppina Polce
Juanita Fortune
Ann Demarisco
Bernadette Holmes
Olive Bailey
Antoinette Blefari
George Fiehrer
Steffan Ashley
Rose Marchetti
Valerie Johnson
Chong Gray
Linda Peaslee
(b) Remove from the Company's files all refer-
ences to the discharges of all the foregoing em-
ployees and notify them in writing that this has
been done and that evidence of their unlawful dis-
charges will not be used as a basis for future per-
sonnel actions against them.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) On request, recognize and bargain with the
Union as the exclusive representative of all of its
employees in the appropriate unit with respect to
rates of pay , wages, hours, and other terms and
conditions of employment and, if an understanding
is reached , embody such understanding in a writ-
ten, signed agreement.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Mail a copy of the attached notice marked
"Appendix" 12 to each and every employee at his
or her home address and post copies thereof at
their place of business in Pittsfield, Massachusetts.
Copies of the notices on forms provided by the Re-
gional Director for Region 1 after being signed by
Sidney H. Sisselman as an individual Respondent
and as Respondent Workroom for Designers' rep-
resentative shall be mailed by the Respondents to
each of their employees currently working in the
plant and to each of their employees on the payroll
at any time since the first week of March 1982, and
additional copies shall be posted by it and be main-
tained by it for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps have been taken to comply.
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, loin, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT do anything that interferes with,
restrains , or coerces our employees with respect to
these rights. More specifically,
WE WILL NOT threaten our employees with dis-
charge, plant closure, or plant removal.
WE WILL NOT threaten to "get," "hit," "spit
upon," "kill," "burn," or otherwise assault our em-
ployees.
WE WILL NOT physically assault or spit on our
employees and union representatives.
WE WILL NOT solicit our employees and others
to assault striking employees.
WE WILL NOT interrogate our employees con-
cerning their union activities and the union activi-
ties of other employees
We will not create the impression of surveillance
of our employees' union activities.
WE WILL NOT promise benefits to our employees
if they would abandon the strike.
WE WILL NOT tell our employees that they are
being discharged because of their union activity or
tell striking employees that they will never be rein-
stated
WE WILL NOT threaten striking employees that
they will be treated as having quit or will other-
wise lose their jobs unless they abandon a strike.
WE WILL NOT harass reinstated unfair labor
practice strikers and others who are seeking rein-
statement in order to force them to quit or to dis-
courage them from returning to work.
WE WILL NOT threaten to impose more onerous
working conditions on reinstated unfair labor prac-
tice strikers.
WE WILL NOT discharge our employees because
of their union activities or because they participate
in a strike.
WE WILL NOT refuse to reinstate unfair labor
practice strikers in a timely and proper manner
upon their unconditional offer of reinstatement.
WE WILL NOT lay off or fail fully to reinstate re-
instated unfair labor practice strikers while retain-
ing strike replacements to perform the same work
which the unfair labor practice strikers had per-
formed.
WE WILL NOT refuse to bargain collectively with
the International Ladies' Garment Workers Union,
AFL-CIO as the exclusive representative of our
employees in the unit described below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization, to form,
join, or assist the International Ladies' Garment
Workers Union, AFL-CIO, or any other labor or-
ganization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection
or to refrain from any or all such activity.
WE WILL offer the following named employees
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges:
WORKROOM FOR DESIGNERS 845
Patricia Gage
Robert Sabin
Concetta Ruperto
Rose Notto
Yolanda Potter
Teresa McCormack
Kathleen Sabin
Hannah Bontempo
Catherine Triano
David Amlaw
Steve Mathes
Ronald Smith
Gloria Civello
B. Williams
Charles Holmes
Marion Smith
Dianna Grace
Gregory Smith
Marie Hebert
Linda Garneau
Shery Briggs
Rose Galvagni
Josephine Daley
Louise Whelan
Daniel Corrado
Rose Sayers
Donna Crawford
Irma Dinicola
Regina Lysecka
Deborah Wood
Deborah McGivern
Laura Pike
Ruth Sabin
Thelma Leveille
David Heath
Donna Passons
Catherine Carlo
William Paradysz
Thomas Spargo
John Descensi
Stella Hoffman
Michael Soules
Kevin Fowler
Kathleen Hoffman
Diane Andrzejewski
Susan Barnes
Ann Jamros
Walter Manning
dersta:iding in a written signed agreement. The
bargaining unit is:
All production and maintenance employees in-
cluding cutters, stitchers, floorworkers, inspec-
tors and mechanics, employed by the Employ-
er at its Pittsfield, Massachusetts location, but
excluding office clerical employees, profession-
al employees, and contract administrators,
managerial employees, guards and supervisors
as defined in the Act.
and WE WILL make them and the following em-
ployees whole for any loss of pay suffered by
reason of our discrimination against them, with in-
terest.
Anita Burnham
Leola Demery
Jack Haskell
Candace Cook
Roy Barnes
Rosa Polano
Christina
Christowski
Guiseppina Polce
Juanita Fortune
Ann Demarisco
Bernadette Holmes
Olive Baily
Antoinette Blefari
George Fiehrer
Steffan Ashley
Rose Marchetti
Valerie Johnson
Chong Gray
Linda Peaslee
WE WILL expunge from our files and records all
references to the discharges of the above-named
employees and WE WILL notify them in writing
that we have done so and that these unlawful dis-
charges will not be used as a basis for further per-
sonnel actions against them.
WE WILL mail a copy of this notice to all our
employees.
WE WILL, on request, bargain collectively with
the International Ladies' Garment Workers Union,
AFL-CIO as the exclusive bargaining representa-
tive of all the employees in the unit described
below with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and, if an agreement is reached, embody such un-
WORKROOM FOR DESIGNERS, INC.
SIDNEY H. SISSELMAN
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER, Administrative Law Judge. The
trial of these consolidated cases was held in Pittsfield,
Massachusetts, on 12 days between December ¢, 1982,
and March 3, 1983, based on timely unfair labor practice
charges and amended charges filed by the International
Ladies' Garment Workers Union, AFL-CIO (ILGWU
or the Union), between April 1, 1982, and January 19,
1983, and complaints and amended complaints issued by
the Regional Director for Region 1 of the National
Labor Relations Board (the Board), between May 17,
1982, and January 18, 1983 The complaints, as amended,
allege that Workroom For Designers, Inc and Sidney H.
Sisselman (Respondent)' violated Section 8(a)(1), (3), (4),
and (5) of the National Labor Relations Act (the Act).
Respondent's timely filed answers deny the substantive
allegations of the complaint.
All parties were afforded full opportunity to appear, to
examine, and cross-examine witnesses , and to argue
orally. A brief, which has been carefully considered, was
filed by the General Counsel.
Based on the entire record,2 including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I RESPONDENT'S BUSINESS AND THE UNION 'S LABOR
ORGANIZATION STATUS -PRELIMINARY
CONCLUSIONS OF LAW
Workroom For Designers, Inc. is a Massachusetts cor-
poration with its office and place of business in Pittsfield,
I The General Counsel's motion to amend the complaints to allege
Sidney H Sisselman as a named Respondent , individually liable for the
unfair labor practices, was granted at hearing See Ski Craft Sales Corp,
237 NLRB 122 (1978), and cases cited therein As in Ski Craft, the indi-
vidual sought to be held individually responsible for the alleged unfair
labor practices solely owned, managed, and controlled the corporation
and personally engaged in many of the unfair labor practices ultimately
found Here , Sidney Sisselman provided an additional justification for so
holding by his intention , admitted in his diary , to set up his business oper-
ations in such a way as to avoid any possible backpay liability
2 The General Counsel's unopposed motion to correct the transcript is
granted
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Massachusetts, where it is engaged in the manufacture
and nonretail sale and distribution of clothing. Jurisdic-
tion is not in dispute. Respondent admits the facts estab-
lishing, and I find and conclude, that it is and has been at
all times material herein an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Background
Workroom For Designers, Inc. was incorporated by
Sidney Sisselman3 in 1978. Although originally intended
to function as a producer of fashionable ladies' garments
with an employee complement of perhaps 20, business
exigencies caused it, in early 1981, to get into the large
scale manufacture of cold weather parkas for the mili-
tary, with an attendant increase in employee complement
to approximately 80 Prior to the events of the instant
case, Respondent's employees were not represented by
any labor organization.
While Workroom For Designers only came into exist-
ence in 1978, Sidney Sisselman, now age 62, has been in
the garment industry all of his working life, with facto-
ries in New York and Pittsfield. He claims to have had
prior experience with the Union, including a "sweet-
heart" contract in 1937 wherein the Union had agreed
not to bother him. Sisselman apparently had some fur-
ther dealings with the Union while operating Respond-
ent's more immediate predecessor, SSSS.
Respondent's animus toward the Union, as reflected in
this record, was palpable. Indeed, Respondent stipulated
to its existence
B Union Organizational Activity and Respondent's
Initial Reaction
1. The facts
The Union began its organizational activities among
Respondent's employees in early February 1982.4 House-
calls were made and weekly organizational meetings
were held. However the Union did not begin to solicit
the signing of authorization cards until approximately
March 23. Between that date and April 2, approximately
60 employees, out a total complement of approximately
76, signed cards authorizing the Union to be their collec-
tive-bargaining representative. There was no testimony
that any employees were misled concerning the purpose
of the authorization cards or that any were signed for
any purpose other than to authorize such representation.
Sidney Sisselman became aware of the union activity
in February when, among other sources, an employee
told him that union repesentatives had come to her
house. On getting wind of the incipient organizational
activity, Sidney proceeded to question and threaten his
employees. In the first week in March, he approached
Leola Demery, a long-term employee, at her machine
and stated, "Lee, I hear we're having a union in . . do
you think it's the young girls starting it?" When Demery
replied that she knew nothing of the activity, Sidney
continued, "Well, if they are, if they do start it, they're
all fired." He similarly asked Kathleen Sabin whether she
knew anything about the Union. About mid-March, Sis-
selman approached Diane Andrzejewski and Cathy
Troiano, at Troiano's machine, and asked whether they
knew anything about the union cards. They feigned igno-
rance and were told "that if he found out that we signed
the union cards, and he would find out, that we were
fired " He questioned Ann Jamros for an hour, as well as
other employees, attempting to learn what union was or-
ganizing his employees. About March 20 while giving
Susan Barnes directions concerning her work, Sidney
asked, "Did you go to the meeting last night?" To her
response, "What meeting9" Sidney explained, "You
know, the union meeting " Barnes, who had been in-
volved in the organizational activity since its inception,
pretended to know nothing about it and was told how
stupid her fellow employees were to think about a union.
On March 25, Sidney came up to Anita Burnham and
Donna Crawford. He told Burnham, "You were not here
yesterday when I told Donna this. But I told her that if
she signs a union card or if I find out that she has any-
thing to do with the union, she is going to be fired.. . .
The same thing goes for you. . Now, if you people
wouldn't bug me about the union all the time, then I
could concentrate on getting more contracts where I
could pay you people more so you wouldn't need a
union and you could buy your own insurance " Thereaf-
ter, Sidney spoke to Burnham on nearly a daily basis,
questioning her about whether she had attended union
meetings. He also made frequent statements to her such
as: "I'm going to close the shop . I don't care if I
have to go to jail for 5 years and . . pay $20,000. I
don't give a shit. I'm going to do it No son of a bitching
union is coming in here . . . this is my fucking house and
no fucking union is going to tell me what to do. I'm
going to rule in here. I'm going to tell you what to do
and nobody else "5 Charles Holmes, Susan Barnes, and
Burnham also heard Sidney question employees about
the Union and tell other employees, including Susan
Barnes, Josephine Daley, and Katherine Sabin, such
things as, "If you sign the union card, if you're out for
the union, you're fired. If I find out that you signed the
union card, you're fired . . never work for me again."
About March 24 or 25, Sidney spoke with Sherry
Briggs, Pat Gage, and Deborah Wood in the smoking
area. He asked them why they had signed union cards,
told them he did not want a union in his plant and said
5 The language used by many of the participants in this case, particu-
s There are several members of the Sisselman family involved in this larly Sidney Sisselman and his son Brian, but also, on occasion, employ-
proceeding, Sidney, his wife Simone, his son Brian, and his daughter Mi- ees and the union representatives, was sexually explicit and patently of-
chelle They will be referred to herein either by their given or their full fensive It is relevant to the question of remedy and it is therefore neces-
names sary to include at least some of this language in order to accurately de-
4 All dates are 1982 unless otherwise specified scribe the events and depth's of feeling
WORKROOM FOR DESIGNERS 847
that if they wanted health benefits they could go else-
where. He concluded by telling them, "If you sign the
union card, you might as well take your card and punch
out right now. You're fired " He said that he had a loca-
tion in Africa to which he could move and that he
would leave if the Union came in The employees, seek-
ing to avoid disclosing their involvement in the union ac-
tivity, said nothing.
On one occasion prior to March 31, Sidney ap-
proached Daniel Corrado, a stitcher and presser who
had worked for him or other members of the Sisselman
family since 1971. He asked Corrado, whom he knew to
have been a professional prizefighter in years past,
whether Corrado "could find him a few strongarm men
or maybe somebody to bust up a few arms and legs of
some organizers " He offered to "pay them $500 or so "
On the morning of March 31, Sidney Sisselman again
approached Susan Barnes and questioned her as to why
there was so much downtime recorded on her piece
work card. Then, calling over Plant Manager John Sher-
wood as a witness, he told Barnes, "You think those
union bastards from . where ever the hell they come
from, do you think they are going to give you the
work9" When she said that she did not know, Sisselman
looked at both Sherwood and Barnes and stated, "I'm
going to tell you and I'm going to tell her, either those
bastards are going to take a hike or she will " Their con-
versation continued both at her machine and in his
office, along the same vein, for more than an hour.
All of the foregoing testimony stands uncontradicted.
At least with respect to the interrogation of employees
concerning their attendance at union meetings and vests
by union organizers to employees' homes, as well as
other knowledge of union activity, the testimony is cor-
roborated by Sidney Sisselman 's admissions
2 Discussion
The General Counsel contends that the foregoing con-
duct engaged in by Sidney Sisselman constitutes threats,
interrogation, promises of benefit, and the creation of the
impression of surveillance, all of which tend to interfere
with, restrain, and coerce employees in the exercise of
their statutory rights, in violation of Section 8(a)(1) of
the Act. The record leaves no room for these conten-
tions to be seriously disputed.
The foregoing testimony is replete with instances of
threats, including threats to close the business, threats to
discharge card signers, and threats to do physical harm
to union organizers. No litany of citations is required to
support a conclusion that such threats violate Section
8(a)(1) of the Act I so find.
Similarly, whether questioning of employees by their
employer about their union activities is considered inher-
ently coercive, as the Board found in P. B. & S. Chemi-
cal Co., 224 NLRB 1 (1976), and PPG Industries, 251
NLRB 1147 (1980), or requires a more detailed analysis
of the surrounding circumstances (for example, see
Teamsters Local 633 v. NLRB, 590 F.2d 490 (D.C. Cir.
1974), and cases cited therein) the interrogation engaged
in by Sidney Sisselman was coercive. Thus, I note that
the employees were interrogated by Respondent's high-
est ranking officer, in the context of threats, abuse, and
vulgarity connoting both a deep-seated animus toward
the Union and a willingness to use any information gar-
nered from the employees in ways harmful to them, no
valid purpose existed for the interrogation and none was
expressed to the employees, and the employees felt con-
strained to hide, rather then to disclose their union ac-
tivities. I therefore find that by such coercive interroga-
tion, Respondent has violated Section 8(a)(1) of the Act.
"In determining whether a respondent created an im-
pression of surveillance, the test applied by the Board is
whether employees would reasonably assume from the
statement in question that their union activities had been
placed under surveillance." South Shore Hospital, 229
NLRB 363 (1977); Schrementi Bros., 179 NLRB 853
(1969). That test is fully satisfied here Sisselman 's repeat-
ed questions to employees concerning their attendance at
unpublicized union meetings clearly indicate to the em-
ployees being questioned that Respondent knew that
union meetings were being held and even knew when
they were scheduled. Such conduct, I find, constitutes
interference with the employees' exercise of statutory
rights in violation of Section 8(a)(1) of the Act. See
Scott's Wood Products, 242 NLRB 1193, 1197 (1979), and
cases cited therein
I further find that Sidney Sisselman's statements to
Burnham and Crawford regarding the possibility of
greater pay if the employees did not "bug" him about
the Union constituted at least an implied promise of ben-
efit if they would cease their union activities
C. The Events of March 31, 1982
1. The facts
About March 25, after questioning a number of em-
ployees to determine which union was trying to organize
them, Sidney called the nearest office of the ILGWU,
that being the only union with which he had any exten-
sive familiarity. He was put in touch with Richard
Rumelt, the director of organization, and arranged a
meeting with Rumelt to be held on April 1 at the Hilton
Hotel in Pittsfield He told Rumelt that other appoint-
ments, away from Pittsfield, prevented his meeting on
March 31.
At their weekly organizational meeting on Tuesday,
March 30, Respondent's employees were told of the
Union's scheduled meeting with Sidney They were also
told that Sisselman had declined to meet on March 31
because of a scheduled out-of-town trip. On March 31,
however, the employees observed that Sidney was
present in the plant; they also observed that a number of
employees were laid off that morning, ostensibly for the
remainder of the day, and that sewing machines and ma-
terials were being loaded on a truck 6 Alarmed that
Sidney might be implementing his earlier stated threats
to close or move the business, employees Anita Burnham
and Rose Sayers called Warren Pepicelli, the Union's or-
ganizer, at his hotel in an adjacent community They
asked that Rumelt not wait until April 1, but come to the
6 There is no contention, and I make no finding, that any of these ac-
tions on March 31 were related to the union activity
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant that day to present the cards and assert the Union's
demand for recognition. Pepicelli called Rumelt in
Boston, relaying the employees' observations and con-
cerns, and Rumelt agreed to come out to the plant imme-
diately.
About 2:30 on March 31, Rumelt, Pepicelli, and Hedy
Ferriera, the Union's assistant director of organizing,
made an unscheduled and unannounced visit to the plant.
They entered, asked to speak to Sidney Sisselman, and
were directed to wait in the office. Enroute to the office,
Pepicelli stepped onto the factory floor. When he did so,
he was greeted by Anita Burnham and he returned her
greeting Standing near Burnham was Simone Sisselman,
Sidney's wife. Burnham returned to her machine and
Simone told Burnham, "You know that they're going to
be thrown out and you're going with them. 117 Pepicelli
then turned and went into the office Both Sidney and
Simone Sisselman came to the office about the same time
and Simone, pointing at Pepicelli, stated to her husband,
"Anita said hello to him . . . isn't this still our shop?"
The representatives introduced themselves and explained
briefly why they had come a day early. Sisselman's re-
sponse was to order them out of his factory, using vulgar
language, and punctuating his remarks by gesturing with
a long screwdriver.
Several minutes after the Union's representatives left
the plant, Sidney, Brian, and Simone went back to the
machine where Burnham was working. Sisselman hit her
machine with a clenched fist and told her, "Now I
know, you're the one that called the sons of bitches in
here. You're the fucking bitch that called them and
you're the one that's been talking union in the shop."
Burnham protested that her role in bringing the Union in
was immaterial, that she was fighting for her rights.
Sidney replied, "I'm fighting for my rights also . . .
You're through . . . I have no further use for you . . .
you can get out now or wait till 3:30. But don't make a
wrong move or you're be sorry." She asked, "Sidney, in
other words, I'm fired?" She was told, "You're damn
right."8
7 Simone Sisselman was present throughout much of the hearing but
did not testify Burnham's testimony concerning this statement is uncon-
tradicted
8 This exchange was witnessed by a number of employees, some of
whom could only see that an argument was ensuing Three however,
Daniel Corrado, Charles Holmes, and Kathleen Sabin , heard Sisselman
swearing and credibly testified to having heard him tell Burnham that she
was fired According to Sidney Sisselman , Burnham was not discharged
but quit Thus, he testified that after throwing the union representatives
out of the plant, he went to Burnham and told her, "I don't like your
friends I don't permit anybody in my factory unless they come with my
permission " He went on to criticize the quality of her work in recent
days and repeated his statement about her friends Burnham allegedly re-
sponded by saying, "I 'm tired of taking your shit " and tore up her piece
work card Sidney claimed to have been very careful with the words he
used One employee , Nebelski, essentially corroborated Sisselman, de-
scribing him as not appearing agitated or upset and testifying that in the
portions of the conversation which she heard , Burnham was told that she
was not fired but was quitting Considering all of the foregoing, I must
conclude that the testimony of Burnham, Corrado, Holmes, and Sabin
more accurately depicts these events than does the testimony offered by
either Sisselman or Nebelski In reaching this conclusion , I note that
Burnham had been threatened with discharge by Simone Sisselman only
moments before this exchange , that Sidney had repeatedly threatened to
fire anyone supporting the Union , that Sidney Sisselman had been de-
scribed as agitated and upset throughout this period of time, and that the
Prior to Burnham's discharge, the employees who
were active in the organizational activities had been
given some explanation of their rights under the statute
and had agreed that if anyone was discharged, all would
walk out When Sidney fired her, Burnham turned off
her machine and announced to all of the other employ-
ees' "Sidney fired me. I'm calling a walkout. This is an
unfair labor practice." Other employees made similar
statements and the majority of the employees stopped
their work and proceeded to file out of the plant. There
were approximately 72 employees working during that
week. The additional 15 employees joined them on the
following day.
The employees filed out past Sidney and Brian, who
were standing near the timeclock. With 45 employees all
leaving at the same time, and considering the circum-
stances of that departure, it is not surprising that recol-
lections differ as to what was said In fact, it would only
be logical to assume that different things were said to
different people. Burnham, Charles Holmes, and Juanita
Fortune all recalled that Sidney grabbed their timecards
from their hands, tore at least some of them up, and
threw them on the floor. Holmes heard him say, "You're
fucking . . get out of here." Daniel Corrado, Laura
Pike, and Kathleen Sabin heard Sidney tell employees
that they were fired. Fortune and Demery were asked
whether they were quitting and replied that they were
not. They said they were walking out because he had
fired Burnham. Fortune was told that she was fired. Ber-
nadette Holmes was asked whether she was staying to do
his work and was told that if she was not staying she
should get out. And Susan Barnes heard Sisselman
screaming , "You signed a card, you're out too. You go
with her, you're out too"
Sidney Sisselman , in testimony, corroborated almost
verbatim by Brian, denied telling any of the employees
who were walking out that they were fired. They both
described the senior Sisselman as being "cold and calcu-
lating" in telling the employees, "You're walking out,
you're quitting. We've gots lots of work . . I'm not
firing you, go back and sit down at your machines," or,
"If you are leaving I assume you are quitting because no
one is fired." Then Plant Manager John Sherwood (sub-
sequently fired by Sidney Sisselman) did not testify as to
the specific words which Sidney used as the employees
were walking out; however, he recalled that Sidney
exchange, as related by Burnham, is consistent with the demeanor of
Sidney Sisselman in regard to all matters pertaining to the Union as de-
scribed throughout this lengthy record Moreover, between Burnham and
Sidney Sisselman , I must conclude that Anita Burnham appeared to be
the more truthful witness Sidney Sisselman refused to answer questions
which he deemed improper, unnecessary, or inconvenient, avoided giving
direct answers to other questions , and according to his own testimony
was willing to go to great lengths to avoid the Union and to render any
liability which might be found against him nugatory My observation of
his testimony and demeanor throughout this hearing has left me uncon-
vinced as to his veracity In comparison, while her testimony was signifi-
cantly shorter than that of Sidney Sisselman's, I was favorably impressed
with the testimony and demeanor of Anita Burnham Finally, in this
regard, I note that Nebelski attributes statements to Sidney which he did
not claim to have used at that time Rather, they are identical with state-
ments he subsequently made as the employees were walking out I must
conclude that, at best, Nebelski was confused about when she heard the
statements she attributed to Sidney Sisselman
WORKROOM FOR DESIGNERS
begged them to stay and he corroborated the testimony
of both Brian and Sidney Sisselman to the effect that
Sidney was not tearing up or throwing timecards The
latter testimony is further corroborated by the continued
existence of 72 timecards for the week ending April 3,
1982 The Sisselman's testimony is somewhat corroborat-
ed by Sidney's personal diary entry for April 24 (appar-
ently entered upon receipt of the Union's representation
petition), wherein he stated: "Regarding an election,
people walked out quit even at my statement so I do not
recognize them as employees " (Emphasis added.)
Immediately following the walkout, Sisselman came
running out of the door and yelled, "We still have 14,000
coats to make " On April 2, he wrote the employ-
ees, referring to them as strikers and asking that they
return
While I find it somewhat unbelievable that an individ-
ual with as volatile a temper and a proclivity for vulgari-
ty as Sidney Sisselman could have adopted a "cold and
calculating" manner while watching his employees walk
out,9 I am persuaded that the employees were asked to
stay and were told that if they walked out they were
quitting It is probable that the employees understood
this to mean that they were fired, it is also probable that
he told at least some of them in haec verba, that they
were fired In practical effect, as discussed infra, there is
no substantial difference
2. Discussion
The General Counsel makes a number of contenions
concerning the foregoing evidence It is contended, and I
agree, that the statements of Simone1° and Sidney Sissel-
man to Anita Burnham constitute threats of discharge be-
cause of her union activity, in violation of Section 8(a)(1)
of the Act Having credited the testimony of Anita Burn-
ham over that of Sidney Sisselman, I further find that
Respondent carried out this threat and did indeed dis-
charge her on March 31 because of her union activity, in
violation of Section 8(a)(3).
The General Counsel further contends that Respond-
ent told the employees they were being discharged for
engaging in a strike and, in fact, discharged them for that
reason, in violation of Section 8(a)(3) and (1) In Ridge-
way Trucking Co., 243 NLRB 1048, 1049 (1979), enfd
622 F.2d 1222 (5th Cir 1980), the Board stated-
The test for determining "whether [an employer's]
statements constitute an unlawful discharge depends
on whether they would reasonably lead the employ-
ees to believe that they had been discharged"5 and
"the fact of discharge does not depend on the use of
formal words of firing . It is sufficient if the
words or actions of the employer would logically
9 His explanation that he was able to do so because he had experienced
a similar walkout of 2 minutes' duration in his father's clothing factory
some 15 years earlier is totally unpersuasive
'0 Based on the uncontradicted testimony that Simone Sisselman hired
at least one employee, Robert Sabin, and directed employees in their
duties, and in view of her relationship to Sidney Sisselman, I find her to
be both a supervisor and an agent of Respondent
849
lead a prudent person to believe his tenure had been
terminated "6
5 N L R B v Hilton Mobile Home, 387 F 2d 7, 9 (8th Cir 1967)
6 NL R B v Trumball Asphalt Company of Delaware, 327 F 2d
841, 843 (8th Cir 1964) 1
See also Moon Equipment Co., 262 NLRB , 647 (1982)
("You get out of here " ), and A & D Davenport Transpor-
tation, 256 NLRB 463 (1981 ) ("Get the hell out ") Here,
whether the employees were told that they were quitting
if they walked out, were told to get out , or were told
that they were fired if they walked out or if they had
signed union cards , it is clear that the words used would
lead a reasonably prudent person to believe that his or
her tenure had been terminated In this respect , this case
presents a factual situation essentially identical to Abilities
& Goodwill, 241 NLRB 27, 37 fn 23 ( 1979) (Members
Penello and Murphy dissenting on other grounds but
concurring , implicitly , in the conclusion that the employ-
ees had been discharge), enf. denied on other grounds
612 F 2d 6 (1st Cir. 1979), where discharges were found
based on statements to the employees that if they left be-
cause they were requiring (a supervisor 's) reinstatement
they were terminating their employment Thus, I find
that Respondent did in fact tell the employees that they
were being discharged and did discharge them as they
walked out in a protected protest on March 31'm viola-
tion of Section 8(a)(3) and (1) of the Act.
The General Counsel contends that Respondent's un-
lawful discharge of the striking employees includes the
15 who joined the picket line on April i, as well as the
45 who walked out on March 31, notwithstanding that
the 15 may not have , been directly told that they were
discharged . I agree. In both Highland Plastics , 256 NLRB
146 (1981 ), and Martin Arsham Sewing Co, 244 NLRB
918 (1979), the majority of the employees were told that
if they struck (Highland) or if they had signed union
cards (Arsham ), they were discharged Certain employ-
ees, to whom those statements had not been directly
communicated, joined the resulting strikes The Board
concluded that those employees , as well as the employ-
ees to whom the discharge statements had been directly
communicated , were unlawfully discharged . In so con-
cluding, the Board noted that the employers ' remarks
had been directed to all of the strikers and all of the card
signers and found that the respondents had intended to
discharge all of the employees . It further noted that the
directly discharged employees told, or it could be in-
ferred that they told , the other employees of their em-
ployers' statements The facts here are essentially indis-
tinguishable : Sidney Sisselman had repeatedly threatened
to discharge all card signers, and he told the striking em-
ployees that anyone who walked out was fired or'would
be considered as having quit. Additionally , as will be dis-
cussed infra , he repeatedly told individuals and groups of
strikers that they would never return and , on April 15,
repeated his discharge threat, in writing Moreover, the
discharge of the strikers was discussed at ensuing union
meetings . Accordingly , I find that all 60 of the striking
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were unlawfully discharged on March 31 and
April 1 1 i
Of the 60 striking employees, only about 6 returned to
work during the strike.
D. The Strike and Related Events
1. Facts
The union representatives were still outside the plant
when the employees walked out. Some employees told
the representatives that Burnham had been fired; others
stated that they had all been fired. Utilizing blanks rou-
tinely carried in the back of the representatives' cars,
picket signs were hastily drawn up stating: "WORK-
ROOM FOR DESIGNERS ON STRIKE-UNFAIR
LABOR PRACTICES-ILGWU."
Shortly after the employees walked out, Sidney came
out of the factory and yelled to the employees that he
still had coats to be made under the government con-
tract. At least one employee, Kathleen Sabin, also heard
him say, "My door is always open if you want to talk to
me. My door is always open."12
The employees began picketing at both the front and
rear doors of the factory. After they had been out there
approximately 2 hours, Sidney Sisselman opened the
back door, looked out, swore at the pickets, and
slammed the door.
On Thursday, April 1, Rumelt and Ferreira met briefly
with Sidney at a nearby hotel. Sidney told the union rep-
resentatives "that he was very confused. He didn't know
what to do and he couldn't meet the demands." He
agreed to meet with them again the following day.
On the evening of Thursday, April 1, the Union held a
meeting and explained to the employees that they were
engaged in an unfair labor practice strike, protesting the
discharge of Anita Burnham and other employees. Pick-
eting schedules were established and strike captains for
each shift were elected.
A second meeting between Sidney Sisselman, his coun-
sel, and the Union's representatives was held on Friday,
April 2. Rumelt told Respondent's counsel that the
Union represented a majority of his employees and
sought recognition. His attempt to present the authoriza-
tion cards was rejected, as was his request for recogni-
tion . The meeting ended after Respondent's counsel
asked the Union whether it had informed the striking
employees that Respondent intended to replace them.
The strike which began on March 31 lasted 5 months.
The record is replete with evidence of the conduct of
Sidney Sisselman and other agents of Respondent. Most
incidents are undenied but Respondent contends, either
expressly or implicitly, that they were provoked by mis-
conduct engaged in by union agents or employees. While
the only charges before me are those filed by the Union
i 1 The consolidated complaint, in par 8(b), alleges that "Respondent
did on or about March 31, 1982 discharge approximately 50 employees
who were then engaged in a strike against Respondent " This is broad
enough to encompass the conclusion reached herein
12 Sidney had made similar statements prior to the walkout but, ac-
cording to Sabin, had always refused to listen when the employees
sought to talk to him
against Respondent,13 some brief discussion of the con-
duct of the picket line, as seen by the Employer, helps
put the Employer's conduct some what in prospective.
There was uncontradicted testimony that the Union's
representatives instructed the pickets to behave in a
peaceful and nonviolent manner Other than one incident
when a professional union representative, Ruffino
Medina, charged through the door of the plant and
broke a video camera which was monitoring the picket
line activity there was little evidence of acutal physical
violence engaged in by the pickets. There were several
incidents of vandalism, including the jamming of locks
on the plant's doors and damage to parked vehicles or
vehicles attempting to cross the picket line, for which
Respondent blames the Union. This record, however,
does not establish the relationship of the perpetrators to
the Union. There were, contrary to the testimony of
Rumelt, some incidents of pickets insulting nonstriking
employees with sexual epithets and other remarks. The
pickets also followed vehicles driven by members of the
Sisselman family whenever they believed that unit work
might be removed from the plant for completion else-
where. On at least one occasion, the pickets parked near
the Sisselman home all night and on another occasion
watched a parked car belonging to the Sisselman family
throughout the night. The picketing itself was accom-
plished by employees marching in a circle in front of the
doorway into the plant and in front of its driveway,
along a narrow sidewalk. Police officer Karpeck had ex-
plained to the picketing employees that they were not to
walk back to belly at any time and were to leave an in-
terval of about 3 feet between pickets so as to allow in-
gress from and egress to pedestrians. The pickets, he tes-
tified, generally followed those instructions. Pedestrians
seeking ingress or egress had to either go through the
picket line or walk around it. The pickets had also re-
ceived instructions from the police which permitted
them to hold up the movement of vehicles entering or
leaving the plant for 2 to 3 minutes and the picketing
employees took full advantage of this liberal pohcy.14
Vehicles, including those driven by members of the Sis-
selman family, were regularly delayed for at least 2 or 3
minutes, sometimes longer, when seeking to enter or
leave the plant.
Except as otherwise indicated, the testimony describ-
ing the following incidents is uncontradicted-
Sometime in the first few days of the strike, Sidney
came out of the plant and spoke to a group of the pick-
ets Ferreira, watching from a car, saw Sidney point
toward her. She rolled down her window and heard him
13 A complaint issued by the Acting Regional Director for Region 1,
alleging nine counts of picket line misconduct by union agents, including
bumping, kicking, pushing, grabbing, threatening, damaging property,
and driving so as to harass and endanger Sidney Sisselman, resulted in an
informal all party settlement wherein the Union agreed that it would not
assault employees or members of Respondent's management or otherwise
endanger them in the presence of employees That settlement, entered
into on November 9, specifically provided that the Union did not admit
that it had violated the Act
14 The policy which was explained to the pickets is broader and more
generous than Board law on the subject of blocking egress and ingress of
vehicles See Metal Polishers Local 67 (Alto-Cad Nickel), 200 NLRB 335
(1972)
WORKROOM FOR DESIGNERS
say, "That slob is making you people lose $200-[She is]
the cause of [you] losing $200 a week while [her] pay
[goes] on." When Ferreira got out of the car, Sisselman
continued to insult her, referring to her as a fat slob and
as a "son-of-a-bitch," and implying that she had an im-
moral lifestyle. On another occasion, when Ferreira
asked Sidney not to permit the dumping of oil and water
from the plant where the employees walked or sat, he re-
plied, "Why don't you just die."
On April 2, Sidney sent each striking employee a letter
with their paychecks for work performed through
March 31. In it he stated:
I am greatly concerned about the current strike
you are participating in for union recognition and
wonder if the Union . . has informed you of all
the possible legal consequences of your strike. If the
federal government and the courts decide that your
strike is really for union representation and not for
unfair labor practices, you can be permanently re-
placed on your job. The only obligation I will have
is to place you on a preferential hiring list.
I am sure that you are aware of the economic sit-
uation in Berkshire County, the lack of jobs and the
number of people who are currently unemployed I
ask you to please take these factors into consider-
ation when you make your decision on whether to
continue to stay out Monday.
On the morning of April 3, Sidney told Pat Gage and
other employees who were on the picket line, "You
bunch of . . . every one of you are fired and I wouldn't
take one of you back . . . if my life depended on it."
Gage, Kathleen Sabin, George Fiehrer, and other wit-
nesses testified to Sidney making similar statements about
never returning, and to referring to them in derogatory,
sexual insulting terms, on other unspecified dates.
About April 3, Sisselman came out of his factory and
referred to striking employee Charles Holmes as a "fuck-
ing asshole," "jerk," and "jailbird." Rumelt frequently
heard similar statements . Sidney, he said, would stand
within inches of the pickets, refer to them as "jailbirds,"
and tell them that "the worst thing I ever did was the
day I hired you " Pepicelli similarly testified that on var-
ious occasions, the dates of which he could not remem-
ber, he saw Sidney walk nose to nose with the pickets
while cursing them and making such remarks as "I'm
going to get you . . . your family." He heard Sisselman
refer to the picketing employees as "fucking scum" and
tell them that he wished he had never hired them. Police
officer White heard Sidney tell the pickets that he would
not hire anyone from Second Street (the local jail) again
and also tell them that they would not work there again.
Kathy Lucas heard the pickets insulted, generally in
sexual terms , by both Sidney and Brian Sisselman. On
April 14, Sidney exited the plant and, in the presence of
employees Barnes and Gage, pointed his finger at Pepi-
celli, and told him, "I 'm going to get you, I'm going to
get you."
Respondent inserted the following classified advertise-
ment in the local newspaper on April 14.
HELP WANTED
851
Sewing lining to the coat-We will teach the skill
one person at a time to earn starting at $5 40 hour
Similarly ads, seeking inventory control personnel at
$4 per hour and experienced sewing machine operators
"to earn between $4.50 and $5.25 per hour depending on
skill of operation" were inserted in the same newspaper
on April 22. Respondent continued to advertise for
sewing machine operators, offering earnings of between
$4.50 and $5.25 per hour, in some ads, and between $5
and $6 per hour in others, during May.
Respondent's payroll records indicate that the hourly
rated employees earned between $3.35 per hour and $5
per hour, with the majority receiving $4 per hour or less.
Examination of the weekly payroll records indicates av-
erage hourly earnings for piece workers of approximate-
ly $4.50 to $5.50.
On April 15 Ferreira was in her car with Charles
Holmes; and Ronald Smith was leaning on the car.
Sidney approached Smith and stated, "I hear you're
watching my car all night. You will never get back into
the place. You will never work for the company again."
He again referred to Holmes as "dummy" and "jailbird"
and told him, "You'll never go back to my place."
Sidney told Ferreira that he "would get her too."
On April 15, Sisselman again wrote to the striking em-
ployees. In that letter he told them how much money
they had lost in wages and suggested they would never
get it back. He stated his opinion that the Union was
"big business" unconcerned with the employees and sug-
gested:
All the Union has accomplished, and will accom-
plish by continuing the strike, is more loss of money
for you (by not working) and the possible perma-
nent loss of your jobs. As I said to you in my letter
of April 2, 1982, if the federal government and the
courts find that you were striking to have the
Union recognized as your representative in the shop
you can be permanently replaced and I will only
have to place your name on a preferential list in the
event that I have a job opening. The government
and the courts can take several years to legally re-
solve this. Can you afford to strike, and not work,
for several years? What did you gain?
This letter goes on to refer to Respondent's efforts to
hire new employees and asks, "Why are you willing to
lose your weekly earnings and risk this loss of a good
steady job, in this area, where employment is hard to
obtain?" The letter concludes by stating:
If you do not report to work by 7:00 a in. on Thurs-
day, April 20, 1982, and take your place at your
machine, I will have to assume that you have quit
and are no longer interested in remaining as an em-
ployee for Workroom For Designers, Inc. It is with
great sadness that I am forced to take this action
but I have no alternative. With the great numbers
of people unemployed in the Pittsfield area, it
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be foolish for me and my business not to
seek replacements. . The longer you wait to
return, the less ',lobs will be available You will
return to job as if nothing has happened, so that we
can work together to get the job done.
Early on,the morning of April 15, Police Sergeant
Spezzaferro observed Sherwood grappling with, and ap-
parently restraining,- Sidney Sisselman at the picket line
According to Sergeant Spezzaferro, "Mr Sisselman
broke loose from Mr. Sherwood who was holding onto
him. He was shouting threats to the people on the picket
line . something to the effect that he would kill
them." Sergeant Spezzaferro also related another inci-
dent, which he could not place as to date, wherein, after
police officers spoke to Sidney about his conduct on the
picket line, he replied, "that he would walk where he
wanted to walk, that he was going to walk in the oppo-
site direction of the picketers and that [if] one bumped
into him that he would punch . . . or kill him." Police
officer Stracuzzi observed Sideny "brushing" the pickets
on an average of once a day as he passed through the
picket line. He suggested that Sidney wait until the
police, opened .the picket line, which, at least on occa-
sion, was tightly maintained by the pickets, but Sidney
would not comply. Several of the incidents at the picket
line resulted in arrests, but no convictions, of Sidney Sis-
selman
About April 16, while employee Ronald Smith was
picketing in front of the factory, Sidney came out, "rant-
ing and raving . . saying . . that the union would
never get back in there. . He spotted [Smith] . . sin-
gled [him] out and said [that Smith had] cost him some-
thing like $80,000 in shipping and he told [Smith
that Smith would] never come back to work "
On the morning of April 20, while the employees were
picketing in a circle in front of the factory entrance,
Sidney came out of the building carrying bags of the em-
ployees' personal possessions, sweaters, shoes, and seat
pads Throwing the bags on the wet ground, he told the
employees "to get [their] goddam junk the hell out of
there, that we would never work for him again and he
didn't want our garbage out there."
On April 20 the Union filed a representation petition,
Case I-RC-17622 Sisselman 's diary entry, under the
date of April 24, reads "Regarding an election. People
walked out, quit even at my statement so I do not recog-
nize them as employees."
On April 21, Pepicelli was attempting to maintain
order and prevent any altercations while nonstriking em-
ployees were coming out of the factory. Sidney drove up
and partially blocked the sidewalk when he parked
When Sisselman started to get out his car, swearing, Pe-
picellt asked him to pull his car all the way in to the
driveway and said, "We've had enough " Sidney, going
after Pepicelli, twice repeated, "You had enough?" and
spit in Pepicelli's face 15
15 Other witnesses, including Barnes and Corrado, similarly described
incidents, without being able to recall specific dates, where Sidney Sissel-
man spit on union representatives or employees
Brian Sisselman came over in an apparent effort to
calm his father down, some remarks about religion were
made to Pepicelli, and Sidney again charged at him.
Sidney then got back into his car and pulled it into the
driveway As the employees began to resume their pick-
eting, Jenna (then Brian Sisselman's fiancee) stepped out
of the factory door Pepicellt, in an effort to maintain
some order, suggested that she go back in. Brian, who
was behind Jenna, told Pepicelli, "I'm going to come to
Boston and hit you. I'm going to kill you " Brian came
at Pepicelli but was restrained by John Sherwood
As previously noted, the police had instructed the
pickets that they were permitted to block vehicles enter-
ing or leaving the plant for several minutes. On April 23,
the pickets prevented Sidney Sisselman from driving his
car out of the driveway. Sisselman complained to the
police officer and was told that the pickets had a right to
hold him up. The pickets continued to circle; Sisselman
got into his car and proceeded to back across the picket
line As he did so, he hit Diane Andrzelewski, knocking
her off balance and into two other pickets.
On the afternoon of April 23, while Rumelt and Pepi-
cellia were sitting in a car outside the plant, Sidney ran
across the street, opened that car's door, and began
making some remarks about the Union getting off his
property. A police officer sitting nearby placed Sissel-
man under arrest Brian came out of the plant in an ap-
parent effort to avoid further altercations and at that
point Sidney said, "They won Put up the `For Sale'
sign "is
During the first part of the strike, John Sherwood
called between 20 and 40 employees and asked them to
return to work. Among those whom he called, about
April 24, was Sherry Briggs As Sherwood recalled the
conversation, Briggs wanted to know what the employ-
ees would get if they came back He discussed the effect
of the Employer's having bid a Government contract
based on known labor costs and the Employer's inability
to deviate from those costs without incurring a loss. He
told her, however, that "if the people would come back
to work and finish the contract, then Sidney could bid
another contract and he may be amenable to discuss with
the employees and her a better benefit package." 17
Police officer White described a "slight altercation" on
the afternoon of April 26, with name calling, particularly
epithets relating to religion or national origin , emanating
from Brian and Sidney as well as from about 12 pickets.
He calmed everyone down and Brian and Sidney re-
turned to the factory. About an hour later, Sidney exited
the building, ran past White, opened the door of the car
in which Rumelt was seated, grabbed Rumelt's coat, and
made some remarks to him. Sidney's conduct was suffi-
cient to cause White to place him under arrest for disor-
derly conduct.
's Pepicelli attributed this statement to Brian
i Briggs recalled a much more direct offer of higher wages and nego-
tiations on medical benefits if she would come back to work While the
matter is not entirely free from doubt, I find that Sherwood had the
better recollection of this conversation In so concluding, I note that no
other employees attributed such promises of benefit to Sherwood
WORKROOM FOR DESIGNERS
Sometime early in a morning in late April, Sidney
came out of the plant and told the pickets, "These
people are tricking you . they're getting paid while
you're not getting paid. You'll never come back to work
for me " At Pepicelli's urging, Sidney went back into the
plant together with Simone From outside the plant, Pe-
picelli could hear an argument and went over to a
window to satisfy his curiosity. Someone, apparently
from inside the plant, slammed the window shut in such
a way as to break it. At that point Sidney came charging
out of the plant again and began to "hassle" Ruffino
Medina, one of the Union's representatives Sherwood
tried to hold Sisselman back and both he and Sisselman
were arrested.
About May 4, Sidney was observed driving a station
wagon packed with portions of garments and several
sewing machines. To find out where this work was being
taken, Medina and Charles Holmes followed Sidney on a
circuitous route to the Massachusetts turnpike. They
were tuned in to channel 19 on their citizen's band radio
when they heard Sideny broadcasting to a truckdriver
who was behind them. Sidney described their car and
asked the truckdriver to run them off the road, saying
that they were union organizers to whom he had offered
a bribe which had been rejected because they wanted
more money When the truckdriver refused to become
involved, Sidney told him, "They're no fucking good.
Run them off the road . . . kill them."
The union representatives and employees were main-
taining their picket line on Sunday, May 8, Mother's
Day, when Sidney and his daughter, Michelle, drove
into the driveway. Pepicelli, in a manner which he de-
scribed as not antagonistic, wished Michelle a "Happy
Mother's Day " Sidney came running after him, pushed
him, and spit in his face and the face of employee Ron
Smith Sidney and Michelle went into the building. Ad-
ditional employees arrived about this time and Sidney
and Michelle came back out of the plant Pepicelli com-
mented on the spitting incident and Sidney told the pick-
ets, "You'll never come back to work for me. Why don't
you get a job9" He repeated that question to Charles
Holmes, again referring to Holmes as a "jailbird."
About May 20, Bernadette Holmes and Diane Andrze-
jewski were picketing at the driveway when a truck
rented by Respondent attempted to enter. The truck
stopped and the pickets engaged the driver in a lengthy
conversation. After about 15 minutes , the driver asked
whether they would let him in and was told, "No, not
until we're told." The driver went into the plant and re-
turned with Brian He got back into the cab with Brian
positioned so as to direct him into the driveway and
called out, "Are the girls out of the way?" Brian replied,
"Yes. If they're not, fuck them. Run them over." The
driver proceeded to back into the driveway, coming
close to Andrzejewski who pounded on the back of the
truck to stop. The driver asked Brian , "I thought you
told me they were out of the way?" and Brian said,
"And I told you, `Back it in."' The driver refused and
pulled the truck back across the street . He told Brian to
back it in himself and went into the factory, as did Brian.
Subsequently Brian and John Sherwood came out of the
factory As Sherwood came into the street, he pushed
853
Bernadette Holmes with both hands and ordered her to
"get the fuck out of the way."
Charles Holmes and Kathy Lucas were following a
truck when they were called back to the picket line on
the CB radio. Holmes took over the picketing duties for
Bernadett, his wife. About 15 minutes later, Brian came
out of the shop with Sherwood, "yelling and screaming"
at Pepicelli, "I'm going to get you. I'm going to pay you
for everything they're doing here I'm going to fucking
kill you . . . I hope you have a large family because
they are all going to die" He spit in Pepicelli's face. r s
Brian stepped close to Pepicelli, holding his hand as if to
attack Pepicelli put his hands up and stepped back to
avoid Brian's saliva Sherwood then started "throwing
hands and fists," saying, "This is it, I've fucking had it.
Let's get them." Holmes stepped into the fray to pull
Sherwood away and Sherwood kicked him in the ankle.
As Pepicelli and Holmes were walking toward a pay
phone after the altercation was broken up, Brian told
Holmes, "You better stay with him all night because he
won't live until morning." Sherwood subsequently told
Kathy Lucas not to take his picture or he would get or
hit her. Lucas continued up the street and saw Sherwood
and two employees approach Daniel Corrado. Sherwood
took Corrado's hat and used it to hit him about the head
and shoulders
About the same date, Diane Andrzejewski and Gage
observed Sidney arguing with Pepicelli and Medina. Sis-
selman was spitting in their faces and calling Medina
such names as "goon " It appeared that he was attempt-
ing to provoke Medina into hitting him.
Also about that same date, Police Officer Karpeck ob-
served Sidney exit the front door of the factory and step
into the circle where the picketers were walking. Ac-
cording to Officer Karpeck, Sidney "deliberately stood
arms akimbo facing the group and bellied up to a few as
to make them either pass through him or have to go
around him out of their way." There was physical con-
tact between Sisselman and at least one picket
On June 2, Pepicelli followed a truck driven by Mi-
chelle, which was carrying goods loaded onto it at the
factory. In the early morning hours of June 3, Sidney
drove up to the picket line, got out of his car, and came
across the street to Pepicelli. Referring to Pepicelli as a
"yellow-bellied bastard" he said, "You better not follow
my daughter anymore" and spit repeatedly in Pepicelli's
face while pushing Pepicelli with his stomach and arms.
Turning to Danny Corrado, who was with Pepicelli,
Sidney stated, "You shrimp, you'll never come back to
work for me." He then challenged Pepicelli to hit him
and continued to insult Pepicilli, Corrado, and George
Fiehrer 19
18 Brian denied spitting on the pickets, Sherwood claimed that Brian
had a habit of salivating while talking I find credible the testimony of
the employees and union representatives who observed Brian's spitting on
them
19 Similar conduct by Sidney on that or another date in May or June
was observed by Sherry Briggs She recalled Sidney stating to all of the
pickets, "You'll never get back in here, you're all fired "
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 3, Sisselman again wrote the striking employ-
ees. He referred to the government contract and his in-
ability to make the necessary deliveries unless the em-
ployees came back to work. Acknowledging his "excit-
ability," he asked, "Again, now, I ask you to come back
to work Let's get to work, let's deliver.. . Call me.
I'll tell you where I stand and better yet come in and sit
right down to your machine "
About June 7, in the afternoon, Sidney came out of
the plant and saw Charles Holmes on the picket line. He
accused Holmes of being an organizer of the Union and
told him, "I'm going to fucking get you. I don't know
how . . . but I going to fucking get you." Holmes pro-
tested that he was not one of the organizers but was just
a picketer and asked to be left alone. About June 10,
Sidney drove past Holmes as Holmes was walking his
dog Referring to Holmes in explicit and anatomically
derogatory terms, Sidney repeated, "I'm going to get
you I'm going to peel $14,000 off your back " Holmes
again asked to be left alone and the threat was repeated.
When Holmes responded, saying that if Sidney wanted
to get him he should bring his son along as well, Sidney
stated, "I don't need my son. You're easy.. . . I'm going
to peel that $14,000 off your back and then I'm going to
burn your wife and kids to the ground." With this,
Holmes stopped and began to tie his dog to a tree;
Sidney rapidly departed the scene. Later on that same
date, Sidney came out of the factory shouting threats of
bodily harm to Ruffino Medina. He stated, according to
police officer Stracuzzi, "I'll burn your house down with
your family in it . I'll punch you or whatever, I'll
have you hurt." When Stracuzzi attempted to bring
order to the situation, Sidney shouted at, cursed, and
body bumped the police officer and was again arrested
On the morning of June 10, as the pickets were getting
set up for the morning, and several times thereafter,
Sidney came over to Pepicelli and stated, "You cost me
$14,000. I'm going to take it out of your hide, take it out
of your eyes . . . and don't just take this as a threat . . .
I'll follow you to the face of the earth . . to get this
money. You cost me $14,000 and the next time I spit at
you, I'm going to spit in your face, in your eyes "
On the morning of June 20, Bernadette Holmes made
what she believed was a friendly remark to Jenna, Brian
Sisselman's fiancee .20 That afternoon, as the employees
were leaving the factory, Brian came over to Bernadette
and repeatedly asked her, "What did you say to my
girl?" When Bernardette denied saying anything, Brian
disputed her denial and started hitting her in the chest
and spitting in her face, backing her up against the build-
ing and telling her, "You know what the fuck you said
to my girl." One of the older woman, Josephine Daley, a
long-term employee of the Sisselman family, pulled Brian
away from Bernadette. Brian stood face to face with
Daley and, poking his finger in her nose, called her, "a
fat old fucker" and a "fat fucking whore." Daley slapped
him.21
20 Bernadette denied saying anything obscene to Jenna There was no
evidence that she had done so
21 Brian essentially admitted his involvement in this incident , including
the obscenities
On June 25, Sidney again wrote the employees De-
scribing the Government's need for the parkas, he wrote:
"I am making this fourth urgent appeal to you to come
back to work on them."
On August 17, Pepicelli and Rumelt observed a trailer
truck come to the plant. A nonstriking employee got in
the cab and the truck pulled away with Sidney and two
other workers following in a car. Pepicelli followed the
truck, taking employee David Amlaw with him. They
had followed if for about 5 minutes when Sidney stopped
his car in such a way as to block Pepicelli and Amlaw
Sidney got out of his car and came over to Pepicelli's.
Pepicelli asked him to move. Sidney reached through the
open window of the car and began hitting Pepicelli
about the face and arms, while trying to pull him
through the open window and challenging him to get
out the car When he could do so, Pepicelli put the car
in reverse and drove off.
On August 26 at 8 a.m. Sidney and Brian came to the
factory. Brian told picketing employee Ann Jamros that
she had stepped across the property line and she moved.
Brian then began pushing and shoving another employee,
Walter Manning, and Sidney got out of his car and
began shoving Kathy Lucas. Jamros called the police
and returned to the picket line The employees were then
picketing across the entrance to the driveway and Sidney
Sisselman, stating that he did not want to wait for the
police and wanted to leave, got into his car. Backing out
of the driveway, Sisselman hit Kathy Lucas, knocking
her to the ground.
2. Discussion
(a) 8(a)(1) Violations: The General Counsel adduced
direct evidence to support 37 of the consolidated com-
plaint's 44 allegations of 8(a)(1) violations committed
during the strike. They fall into four general categories,
as discussed below.
(i) Threats of physical harm: Few actions have a more
direct tendency to coerce employees in the exercise of
their statutory rights than threats of physical harm. See
Arcadia Foods, 254 NLRB 1012 (1981). Repeatedly, such
incidents appear in this record and I find that by the fol-
lowing conduct, Respondent has violated Section 8(a)(1)
of the Act.22
(1) Sidney Sisselman's threats to "get" Warren Pepi-
celli, uttered on April 14, and his threats to "get" various
other pickets and their families, uttered on other dates
unspecified, as witnessed by Pepicelli. See Huck Mfg.
Co., 254 NLRB 739 (1981), holding an employer's verbal
harassment of strikers violative of Section 8(a)(1).
2 I reject Respondent's implied contention that the threats were non-
coercive responses to union-sponsored misconduct It was the Union's
following of Respondent's vehicles which seemed to provoke members of
the Sisselman family the most However, the Union, its representatives,
and its members were entitled to noncoercively follow Respondent's
goods to determine if struck work was being subcontracted Neither that
following nor any picket line misconduct warranted or legitimatized the
abuse which was heaped upon the striking employees and their represent-
atives
WORKROOM FOR DESIGNERS
(2) Sidney Sisselman's threat to kill people on the
picket line, as witnessed by police officer Spezzaferro on
April 15.23
(3) Brian Sisselman's repeated threats to kill Pepicelli
and his family uttered on April 21 and May 20
(4) Sidney Sisselman's request, via the CB radio, that a
truckdriver run Medina and Charles Holmes "off the
road . . . kill them," about May 4.
(5) Brian Sisselman's order to a truckdriver, about
May 20, to run over Bernadette Holmes and Diane
Andrzejewski.
(6) John Sherwood's May 20 threat to hit Kathy
Lucas if she photographed him.
(7) Sidney Sisselman 's threats, on June 7 and 10, to
"get," burn the homes of, or otherwise hurt, Charles
Holmes and Ruffino Medina.
(8) Sidney Sisselman 's repeated threats, on June 10, to
take $14,000 from Pepicelli's "hide" and to spit in his
face.
(ii) Acts of physical violence: Similarly, an employer
who actually engages in acts of physical violence direct-
ed at employees and union representatives who are en-
gaged in protected activities may fairly be said to have
coerced its employees in the exercise of their statutory
rights. Arcadia Foods, supra. I find the following conduct
violative of Section 8(a)(1):
(1) Sidney Sisselman's intentional bumping and brush-
ing of pickets with his body, particularly in the context
of his threats to punch or kill pickets who might bump
into him, as reported by police officers Spezzaferro and
Karpeck.
(2) Sidney Sisselman's hitting of Diane Andrzejewski
with his car on April 23 and the similar incident involv-
ing Kathy Lucas on August 26.
(3) Sidney Sisselman's spitting in the faces of Pepicelli
(April 21, May 8, and June 2), Ron Smith (May 8), Ruf-
fino Medina (May 20), and other employees and union
representatives.
(4) Sidney Sisselman's grabbing of Rumelt on April 26.
(5) John Sherwood's pushing of Bernadette Holmes,
with accompanying vulgar orders for her to get out of
his way, on May 20.
(6) John Sherwood's attempt to fight with the pickets,
his kicking of Charles Holmes, and his hitting of Daniel
Corrado with Corrado's hat on May 20.
(7) Sidney Sisselman's bumping of police officer Stra-
cuzzi, in the presence of employees on June 7.
(8) Sidney Sisselman's spitting upon and hitting Berna-
dette Holmes on June 20.
(9) Sidney Sisselman 's blocking of Pepicelli's car, and
his punching of Pepicelli, on August 17.
(10) Brian Sisselman 's pushing and shoving of Walter
Manning on August 26.
(iii) The following threats, all related to the loss of em-
ployment because the employees supported the Union,
are found to be violations of Section 8(a)(1):
(1) Sidney Sisselman 's statements on April 3, 15, and
16, May 8, June 2, and various other dates about which
23 The threats to "kill" employees or union representatives, or to take
similar extreme actions against them, may have been gross rhetonc They
were, nonetheless, threats and coercive, particularly in light of the actual
assaults, discussed infra
855
the witnesses were less specific, wherein he told the
picketing employees that they would never come back to
work for him
(2) Sidney Sisselman's statement, in the letter of April
15, wherein he told the employees that if they did not
return to work by April 20 he would assume that they
had quit and were no longer interested in working for
Respondent. C & W Mining Co, 248 NLRB 270 (1980);
Abilities & Goodwill, 241 NLRB 27 (1979).
(3) The General Counsel further contended that Re-
spondent's letters of April 2 and 15 contained unlawful
threats that the striking employees would be permanently
replaced I cannot find that the statement contained in
the April 2 letter ("If the federal government and the
courts decide that your strike is really for union repre-
sentation and not for unfair labor practices, you can be
permanently replaced on your job. The only obligation I
will have is to place you on a preferential hiring list.") is
more than a permissible statement of applicable law. The
April 15 letter, however, did not distinguish between a
strike motivated by both unfair labor practices and eco-
nomics from one that was solely motivated by recogni-
tional objectives. It thus implied that if any portion of
the motive was recognitional, the employees could be
permanently replaced. I therefore find it to be unlawfully
threatening.
(4) Sidney Sisselman 's actions on April 20, throwing
the employees' personal belongings out of the plant, and
his statements at that time to the effect that they would
never work for him again.
(5) Sidney Sisselman 's statement, on April 23, wherein
he directed Brian to put up the "For Sale" sign
(6) Sidney Sisselman's statements, on various dates and
to various employees, wherein he expressed his regret
that he had ever hired them. Such statements convey to
employees the message that the employer equates engag-
ing in union activities, a statutorily protected right, with
employee disaffection or disloyalty. Statements convey-
ing such a message, the Board has held, tend to interfere
with, restrain, and coerce employees in the exercise of
their Section 7 rights, in violation of Section 8(a)(1) See
Oscar Enterprises, 214 NLRB 823 (1974), and cases cited
therein. Moreover, these statements by Sidney Sisselman
imply that he will not take the employees back or will
not retain them for long if he does reinstate them
(iv) Promises of benefit- The General Counsel- con-
tends that John Sherwood offered employees improved
benefits if they would abandon the strike. According to
Sherwood's credited testimony, it was suggested to at
least one employee, Sherry Briggs, that while Respond-
ent could not increase its cost under the existing con-
tracts, Sidney might negotiate better benefits with the
employees if, after they returned and helped him com-
plete this contract, he bid and secured another. Such a
statement , 1 find, conveys an implied promise of benefit,
that benefit being the willingness to negotiate directly
with the employees for improved economic benefits.
(b) Discriminatory offer of higher wages to strike replace-
ments: On April 14, Respondent advertised for sewing
machine operators at a wage rate of $5.40 per hour, a
rate which exceeded that paid to any hourly rated em-
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee prior to the strike The record does not reflect
whether and the General Counsel does not argue that
any new employees were actually hired at this higher
rate Accordingly , I do not find that Respondent has ac-
tually discriminated in wage rates between striking and
nonstriking employees in violation of Section 8(a)(3)
However, to advertise a willingness to pay nonstriking
employees more than the employer had paid the strikers
clearly has a tendency to interfere with, restrain, and
coerce employees in the exercise of their statutory rights,
in violation of Section 8(a)(1) of the Act
(c) Validity of Respondent 's offer of reinstatement
Having discharged all of the striking employees on
March 31, Sidney Sisselman made five "appeals " to them
which might be deemed offers of reinstatement Thus, as
soon as they walked out, he reminded them of the
amount of work yet to be done under his government
contracts . On April 2 and again on April 15, he wrote
the employees, suggesting they return and, on April 15,
assuring each that "You will return to the job as if noth-
ing had happened ." On June 3, he urged the employees
to "come in and sit right down at your machine" and on
June 25 he made what he described as his "fourth urgent
appeal . . . to come back to work ." The General Coun-
sel argues that none of the foregoing constitutes a "bona
fide general offer of reinstatement " I must agree. Each
of these alleged offers was preceded by threats to the
effect that the strikers would never return . The April 15
offer, I have found , was accompanied by a threat of dis-
charge directed at those who might fail to accept his in-
vitation . Each offer was followed by threats and abuse,
both verbal and physical . In none of the offers did Re-
spondent recognize that the employees had been dis-
charged or make reference to "reinstating " them Rather,
each was phrased as an alleged willingness to take back a
striker Moreover , while the state of an individual's mind
is normally hidden from direct view and must be inferred
from surrounding circumstances , Sidney Sisselman has
provided a clear look at his thinking in the instant case
In his diary entry of April 24, he noted that he did not
consider the strikers as employees since they "walked
out, quit even at my statement " His entry for July 11
makes reference to requiring returning strikers to file ap-
plications , to changing the piece rates and , most signifi-
cantly, to forcing them to quit His conduct , as discussed
infra when the employees made their unconditional
offers to return , and when they responded to his Septem-
ber, October , and November offers of reinstatement, es-
tablishes that he had no intention of reinstating any sub-
stantia l number of them , wished to discourage them from
returning , and intended to provoke the termination of at
least some of them if they did return . In all of these cir-
cumstances , I cannot conclude that Respondent made
any bona fide offer of reinstatement to the discharged
employees through June 25, 1982.
(d) Status of the employees as unfair labor practice strik-
ers: A strike which is caused , prolonged , or aggravated,
even in part , by an employer's unfair labor practices is an
unfair labor practice strike, entitling the striking employ-
ees to immediate reinstatement to their former positions
or, if such are not available , to substantially equivalent
positions upon their unconditional offers to return, even
where the employer is required to terminate strike re-
placements in order to make positions available for them.
It is irrelevant that there may also have been other, eco-
nomic, motivations for the strike. Mastro Plastics Corp. v.
NLRB, 350 U.S. 270 (1956), Drivers Local 662 v. NLRB,
302 F.2d 908 (D.C Cir 1962), enfg. 131 NLRB 1270
(1961), cert. denied 371 U.S 27 (1962). Here, the em-
ployees had been subjected to continuous interrogation
and threats of discharge in the weeks before the strike,
had discussed these unfair labor practices and their con-
cerns regarding possible discriminatory discharges at the
meetings held during that period, had agreed that if
anyone was discriminatorily discharged all would walk
out in protest, walked out immediately upon being in-
formed that Anita Burnham had been discriminatorily
discharged, and posted signs announcing this as their
reason for striking. There is no question but that they
were unfair labor practice strikers as of that moment. See
Limestone Apparel Corp, 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir 1983) As the cited cases reveal, it is
of no consequence that the Union also sought recogni-
tion and may have welcomed the opportunity to strike
Moreover, the strike was unquestionably "prolonged"
and "aggravated" by Respondent's continuing unfair
labor practices. Thus, as the strike began in protest of
one discharge, Respondent proceeded to discharge all of
the striking employees. Thereafter, they were subjected
to verbal and physical abuse and repeated threats to
deny them reinstatement or do them physical harm, all
of which conduct I have found to constitute unfair labor
practices.
Accordingly, I find that the striking employees, in ad-
dition to having the status of discharged employees,
were unfair labor practice strikers, entitled to the appro-
priate reinstatement rights.
E The Strike Ends-Reinstatement and Related
Problems
1 The facts
On July 16, Sidney Sisselman approached Rumelt and
suggested, "Let's get this nonsense over with . . . bring
me what you want and for whom." Rumelt said that he
was not the one with whom Sisselman should deal but
would put the appropriate official in touch with him.
Nothing happened until August 7, when Sidney told
Rumelt that he had received no calls. Within 10 minutes,
an attorney representing the ILGWU called. Sidney told
him, "I want to talk only to the top man " Pursuant to
this conversation, Sidney received a call on August 9
from Ronald Alman, the ILGWU's director, and a meet-
ing was arranged for August 11. When Sidney arrived
for that meeting, he found that Alman was represented
by two subordinates. Sidney, insisting he had "made an
appointment with the top man," walked out On August
16, Alman called , apologized for sending someone in his
place on August 11, and made a new appointment.
Sidney met with Alman on August 18. He told Alman
the following:
We can offer work only,, modern tooling and man-
agement when we can bring together the responsi-
WORKROOM FOR DESIGNERS
ble work force to produce quality and economic
value. Then let's talk again [about] a growth base
. . . that can be effectively expanded as we proceed
into the future. It's your choice to be a pimp or to
be a responsible leader of a viable labor organiza-
tion.
Alman asked Sidney what he wanted and Sidney re-
sponded , " I want you to go home."
On August 31, after Pepicelli had submitted reports to
Rumelt indicating dwindling employee participation in
picket line activities , Alman sent Respondent the follow-
ing telegram:
This confirms the ILGWU's request made by me
yesterday on behalf of all strikers for their uncondi-
tional and immediate reinstatement . This request is
without limitation or condition.
A second telegram repeated that "all strikers will present
themselves for reinstatement on or before Tuesday, Sep-
tember 7." On September 2, after receiving Alman's tele-
gram Sidney came out of the plant on several occasions
and asked whether the strikers wanted to return. William
Paradysz heard him say that his door was open to
anyone who wanted to come back to work. In the same
statement, however, Sidney also said, "I'd be, dead before
the Union gets in here."24
Pepicelli gathered the employees together and told
them to go into the shop, state that they were "uncondi-
tionally ceasing the strike," and offer to return to work
The picket signs were taken down and Susan Barnes,
Louis Whelan, Juanita Fortune, Deborah Wood, and
Gloria Civello went into the office. Barnes stated that
they were reporting for work Sidney told them to wait
outside the factory and they complied, hearing nothing
further from him during the remainder of the day That
evening at a union meeting, the employees agreed that
the strike should be unconditionally ended. They were
directed to report to the plant at 6 a in.
On the morning of Friday, September 3, approximate-
ly 40 employees entered the plant where they told John
Sherwood that they wanted to return to work. Sher-
wood said that he would not "hire mobs" but permitted
them to return in small groups. When they went back in,
they were required to fill out new employment applica-
tions Sidney testified that he wanted the new applica-
tions so that he could document who wanted to come
back Sherwood implied that the applications were nec-
essary so that he would know what work they had pre-
viously done. He admitted that Respondent had other
records showing this.
Individual applications were filed on September 3 by
at least the following employees : Susan Barnes , Charles
and Bernadette Holmes, William Paradysz, David
Amlaw, Ronald Smith, Juanita Fortune, Sherry Briggs,
Ann Jamros, Patricia Gage, Deborah Wood, Diane
Andrzejewski, and Gloria Civello. Daniel Corrado went
24 Later that same morning, Brian and Sidney approached Paradysz
and David Heath on a corner near the plant Sidney told Heath, "If I had
a knife, I'd cut your heart out." The testimony of Paradysz is uncontra-
dicted
857
in to make application with the large group of employees
on the morning of September 2; he heard someone say
that they were not wanted and observed all the other
employees coming back out of the office. He made no
subsequent application. Rose Galvagni was told by Sher-
wood, on September 3, that there were no more applica-
tions; Josephine Daley heard from other employees that
there were no more applications and that Brian had told
them to leave She filed no application Leola Demery
similarly went into the factory on September 3. She told
Brian that she wanted to get her job back and was told
by him, repeatedly, to get out. He said that his was "a
government shop," with a security guard, and that there
were no applications. A similar reception greeted Mary
Hebert. Sidney and Brian told her, with accompanying
obscenities, to get out, that they were not hiring any of
them back In like manner , William Paradysz, George
Fiehrer, and David Amlaw, who sought to file applica-
tions on September 7, were ordered out of the plant,
were told that there was no work, and further that there
never would be. On that same date, Rose Galvagni was
again refused an application by Brian Sisselman
Sidney testified that Respondent had as much work at
the end as at the start of the strike. Sherwood testified
that Respondent had approximately 40 strike replace-
ments working as of the end of August. It was Sher-
wood to whom the responsibility for recalling the em-
ployees was allegedly delegated.25
Sherwood told the employees they would be taken
back as production warranted and that their reinstate-
ment would probably, take a week or two. He did not
terminate any of the strike replacements in order to make
room for the returning strikers.
On September 10, Deborah Wood received a letter in-
structing her to call Sherwood about returning to work.
She made an appointment for the following day Pursu-
ant to that appointment, she went to the plant and spoke
with Sherwood; they discussed the work she had done
and he told her to report to work the following Monday,
September 13. However, when she reported, Sherwood
was not there. Supervisor Vita Cunningham told her
there was no work and sent her home. Wood returned to
the plant about 2 days later and spoke with Sidney.
Sidney told her that "he did not know what the hell was
going on in there and if [she] had another job offer to
take it." She returned again to the factory a few days
later and was again told by Sherwood to come in on the
next Monday unless she heard from him otherwise. On
Saturday, Sherwood called her and told her not to
report to work, stating that Brian had objected to her
return. She has not been reinstated.
About September 13 Respondent reinstated Ann De-
Marisco and about September 30 reinstated Leola
Demery
25 Brian testified to having instructed Sherwood on behalf of his father
and himself that everyone should be hired even if they had "slugged"
him, "beat [him] up or called [him] any kind of names" It was Respond-
ent's policy, according to Brian, to call back all of the strikers regardless
of what they had ever done, "all was forgiven " In light of this testimony
establishing condonation, Respondent's implication that some of the strik-
ers may have been denied reinstatement because of strike misconduct
must be rejected
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 26, Respondent sent a letter to Bernadette
Homes, inviting her to call Sherwood about reinstate-
ment and indicating that the job offer would remain
open until October 29, She called Sherwood and was in-
structed to come in for an interview with Sidney later
that afternoon When she reported, Sidney subjected her
to an obscene tirade concerning how long she had been
on the picket line and about her ability to sew. He or-
dered her to report to work on Monday morning, No-
vember 1, and she did so. Sidney did not speak to her
again ; he gave her the "silent treatment."
Bernadette was assigned to framing sleeves, work
which she had done prior to the strike, at the same rate
of pay she had previously received. During the course of
that first day back, she saw both Sherwood and Brian
check her work but nothing was said about it. At the
end of that day, however, Sherwood told Bernadette and
Sherry Briggs that he had no more work for them, that
he did not think they would be able to get the work
done that fast, and that they would have to take the next
day off.
Bernadette and Briggs returned to work on Wednes-
day, November 3 Bernadette returned to framing
sleeves, Briggs worked on pockets. For Bernadette, the
day passed uneventfully. Sherwood inspected her work
but made no comments. On Thursday, however , Berna-
dette's work was inspected by an individual named Larry
who returned some garments to her for correction He
informed her of new procedures requiring that the entire
lining be sewed up and further providing for a system of
"black marks" if a certain proportion of her work had to
be redone. No further explanation of the "black marks"
was given and she had not heard of this from anyone
else. Subsequently, an individual named Janet brought
additional garments to Bernadette for repair. As Berna-
dette and Janet were discussing the work , Brian Sissel-
man approached, "waving his arms, yelling and scream-
ing." He told Janet, "Get away from that fucking piece
of shit, I don't want you even to stand next to that
fucker." Janet looked up and left. Brian told Bernadette,
"You know you're nothing but a fucking piece of shit."
On the following day, November 5, Larry inspected her
work. After that inspection, Sherwood took her into the
office and told her that he was going to put her on a
timing machine which would show how long it took per
garment and whether her performance was excellent,
good, fair, or poor. He also gave her some papers show-
ing that she would have to sew 38 pieces to earn $3.75
per hour. She had never seen this machine before and
she was not told that its use was voluntary. 26 Bernadette
worked with the timing machine through the rest of the
morning, never achieving the 38-piece-per-hour rate.
When Sherwood offered to reset the machine to a rate'of
36 pieces per hour, she resisted, insisting that she was
trying to reach the 38-piece-per-hour rate. He said she
would never make it.
18 Sherwood testified only that Bernadette was never told that use of
the machine was a condition of continued employment Whatever was or
was not told to Holmes, however, I am satisfied that the machine was
introduced into the plant to assist employees in achieving higher produc-
tivity and greater piecework earnings Bernadette , of course , was not a
piece-rate worker at this time
At noon on November 5, Bernadette Holmes went
home for lunch Feeling pressured by all of the forego-
ing events, she never returned to the plant. Since that
time, she heard nothing further from Respondent con-
cerning her employment.
As discussed infra on November 19, Respondent was
ordered by the United States district court to offer rein-
statement to all of the strikers. Respondent prepared a
letter to Bernadette, dated November 20, purporting to
make such a offer, but sent it to the court, not her. On
that letter, Sidney Sisselman wrote:
This letter was not sent because she filed unfair
labor practice against us this week. She did not
return after lunch. The quality man would not pass
her work.
12/22 She did come to work. After 2 days she
quit She filed unfair labor practice charge and
charge is being investigated by NLRB.
Larry McCrae made a written statement about
her quality.
Rose Galvagni is an older woman who had been em-
ployed by Sidney and the Sisselman family for 15 or
more years. When, pursuant to receipt of a letter about
October 29, she came in for her interview, Sidney asked
her whether she was going to retire. He disputed her
contention that she had no intention of doing so and told
her that if she were to come back "it would be misera-
ble." He asked whether they had not been friends and
told her that she could not be his friend anymore. He
then asked her why she had supported the Union and
discussed a factory in New Jersey where he had worked,
which he claimed, the Union had closed. Galvagni was
not reinstated at that time -and heard nothing further
from Respondent until November 26.
Patricia Gage had received Respondent's letter on Oc-
tober 29 but because of a death in the family, postponed
her interview until approximately mid-November. When
she came in, she was met by Brian who began to push
her with his body, insult her with obscene sexual refer-
ences, and order her out of the factory. She had started
to head toward the door when Sherwood came in and
quieted the situation down. As she recalled their inter-
view, Sherwood told her that she would be starting back
at $4 per hour and would go back on piecework when
she adjusted to the work again.
Gage returned to work on November 16 and was as-
signed to framing backs, the work she had previously
done. The day passed uneventfully until she left work
and was confronted by Rugs Wiken, an employee who
had not participated in the strike. Wiken, who testified
that he had been subjected to continuous insults by the
pickets, including Gage, initiated an exchange with her
which included shoving by him and mutual insults. Gage
told Wiken that her husband' was coming to pick her up
and would protect her (Gage's version) or would beat
him up (Wiken's version).
On the following morning; Gage told Sherwood of her
encounter with Wiken. He suggested to her that she bear
with it, keep a low profile, ,and that if she did so for a
few days she would have' no problems. Subsequently,
WORKROOM FOR DESIGNERS
while Sherwood was fixing Gage's machine, Wiken
walked by, striking a hammer into the palm of his hand
while looking at Gage. Gage took this as a threatening
gesture but Sherwood told her to ignore it, repeating his
admonition to try to get through the next few days. Ac-
cording to Gage,27 Wiken again walked by Gage,
making both the threatening gesture with the hammer
and remarks such as, "What would you do if this
hammer fell on your head?" Shortly thereafter, Gage
found it necessary to walk by Wiken's work station
where she heard him refer to her in an insulting manner
and say, "I'm not through with you yet. I'm going to get
you." She confronted him and, in the exchange that fol-
lowed, when again she felt threatened by Wiken, Gage
slapped him. Wiken reported this to Cunningham and
then to Sherwood. Sherwood came over and talked
briefly to the two of them; each said that the other had
made threats. Sherwood, without additional investiga-
tion,28 discharged Gage. As he testified, "I concluded
that this situation wouldn't have happened if Pat Gage
had listened to my advice And this is what I told her
and I dismissed her." Wiken, it appears, was not disci-
plined.
As in the case of Bernadette Holmes, no offer was
made to Gage following the district court order in the
10(j) case. The form letter, which was sent to the court
but not to Gage, contains the following notation by
Sidney Sisselman:
I did not send this letter because she filed unfair
labor practice charge against us. We're under inves-
tigation on this. She hits another worker so the fac-
tory manager fired her.
Laura Pike returned to the factory about November
17. While she had been an inspector prior to the strike,
Sherwood explained that he did not need any more in-
spectors and offered her a job clipping strings on gar-
ments at the same rate she had earned prior to the strike,
$3.35 per hour. Sherwood also told her that he did not
"want any loudmouths around here like Sue Barnes
screaming around the shop . . . [and] that the family
. . . [and] Vita will hold a grude against [her]." She was
not reinstated prior to the close of hearing
In addition to Demery, Gage, Briggs, DeMarscio, and
Holmes, the following strikers were reinstated by Re-
spondent prior to mid-November: Jack Haskell-Septem-
ber 25; Olive Baily-October 31; Candace Cook-Octo-
ber 31, and Antoinette Blefari-November 13.
On November 19, in a temporary injunction order
issued pursuant to Section 10(1) of the Act in Fuchs v.
Workroom For Designers, Civil Action No. 82-0370-F,
District Judge Frank Freedman of the United States Dis-
trict Court, District of Massachusetts, ordered Respond-
ent to make unconditional offers of reinstatement to 46
Strikers. Half of the offers were to be made within 10
days of the order, the rest within 20 days. Respondent
proceeded to send letters to at least some of the unrein-
27 To the extent that a credibility resolution is required here, I find
Gage to have been a more credible witness than Wiken
28 Wiken admitted to Sherwood that he had initiated the exchanges be-
tween them
859
stated strikers, purporting to offer them "unconditional
reinstatement to their former positions of employment "
Anita Burnham received such a letter, dated November
20, and declined, stating that she felt that the offer was
inadequate because it failed to mention "salary, condi-
tions or restrictions."
Juanita Fortune received a letter, dated November 26,
called the plant, and was told to come in on November
29. When she reported, Sidney called her into his office.
After asking her name and whether she wanted to come
back to work, he told her, "I don't like you. I never did.
And I don't like to have you come back to work . . .
If you did, I would make it as miserable as possible so
you would quit or I would fire you." Fortune said that
she would "take that chance," was directed to sign a
timecard, was told that Respondent would get in touch
with her, and was ordered out of the plant. She received
no further word until December 31, when she was told
to report to work on Monday, January 3, 1983. She did
so and was put to work on her former job, clipping. She
continued to perform this job for 4 weeks and was then
laid off. At the time of her layoff, at least one strike re-
placement was retained to continue doing that same job.
Rose Galvagni received the November 26 letter and
was interviewed by Sidney Sisselman on November 30.
At that time, he reiterated his remarks of November 4
concerning whether she would retire and he again told
her that he disliked her. She signed a timecard and re-
turned to work on December 4.
Similarly, when Daniel Corrado was interviewed on
November 30, Sidney told him that he was not wanted
back in the plant. Nonetheless, he returned to work on
the following morning. Thereafter, he was laid off for a
week about mid-December and was again laid off about
January 8, 1983 As of the date of hearing, he had not
been recalled. Corrado had experience on a number of
different machines and functions in Respondent's oper-
ations. At and after the times of his layoffs, machines on
which Corrado was experienced continued to be operat-
ed by strike replacements, including Victor Santiago and
Daniel Casella.
Susan Barnes received the "silent treatment" from
Sidney when she responded on November 29 to his No-
vember 26 letter; he handed her a note directing her to
report for work on the following morning or forfeit her
job. Later that afternoon, however, Brian called her and
told her not to report. He said that Josephine Daley
would be taking her job and that she would be contact-
ed. Susan Barnes and her husband Roy were reinstated
on December 11.
Robert Sabin had only begun working for Respondent
on the morning on which the strike began, as a floor-
worker, moving boxes. However, he joined the strike
and remained a striker throughout its duration He re-
ceived a letter on November 24 and was reinstated on
November 30. Upon his return, Sidney told him, "I hate
your fucking guts and I'm going to do everything I can
to get you fired or make you quit-I'm going to make
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
your first day as miserable as I can "29 Thereafter, Sher-
wood, referring to Sabin as "fuck head," ordered him to
move about 500 boxes of about 28 pounds each. He
moved them once and was then ordered to restack them.
In midafternoon, Sabin was directed to load other boxes
on to a truck, utilizing a procedure involving a line of
employees passing the boxes like an old-fashioned fire
bucket brigade. Brian, imitating Sabin's speech impedi-
ment , told Sabin that he "wanted the fucking job done."
During the loading procedure, Sabin worked inside the
truck and, while he was loading, Brian threw about 25
boxes at him, hitting him in the head, back, legs, and
ribs. Brian continued to imitate his speech and ignored
Sabin 's request that he stop throwing the boxes at him.30
When Sabin attempted to leave, Brian threw back the
truck door, hitting and injuring Sabin Sabin punched out
and, as he was leaving, Brian yelled out to him, "If you
think today was bad, wait until tomorrow." Sabin did
not return to work on the following day or thereafter.
However, on his medical release after treatment for the
injuries he had received, he wrote the Company of his
desire to return to work. He has not been reinstated.
George Fiehrer was reinstated to his former position
about December 1. On December 3, Sidney berated him
for his production, told him that he would only be paid
for the work he performed, said that he had not earned
anything that day, and said further that Respondent did
not accept charity cases He "reminded" Fiehrer that he
was not in the army any more and ordered him to
remove his hat. Fiehrer's hat, which he proudly wore,
bore some of his military decorations and he wore it to
eliminate glare from overhead lights. He had worn a hat
all during the 7 months he had worked prior to the
strike, without objection by management.31 Fiehrer left
the plant at 10 a in. and did not return.32
Rose Sayers had worked for the Sisselman family for
31 years and for Sidney for about 7. For more than a
year prior to the strike, her principal job had been "sew
bar girl," putting numbered tickets on cut pieces of the
garments so that each entire garment came from the
same piece of cloth and matched. When that work was
low, she assisted the cutters and gave out linings; that is
what she had been doing in the weeks immediately
before the strike. She had been hourly paid. Sherwood
referred to her as as service person and acknowledged
that he had been told that she had previously done sew
bar work. Sayers was einstated about December 2, fol-
lowing an interview wherein Sidney told her, "Are you
sure you want to come back to work? You don't want to
work for me . . . . It's not going to be very nice work-
ing for me because I'm not going to make it easy for
you." Over her objection, she was assigned to a button-
29 Essentially all of this witness ' testimony was elicited by leading
questions in view of his severe speech impediment However, that testi-
mony, except where otherwise indicated , is uncontradicted
3 0 Respondent 's attempt to portray this as a normal incident of the
truck loading procedure is patently incredible, particularly in light of the
absence of any denials by Brian Sisselman
3i Sidney Sisselman 's testimony , claiming that he had a longstanding
rule against the wearing of hats in the plant and explaining his alleged
rationale for that rule , is incredible
'2 The General Counsel does not contend that Fiehrer was construc-
tively discharged
wrapping machine, a job she had never done before, on
piecework. At least one service person position was
being performed at that time by a strike replacement,
Donna Hackett Another strike replacement, Joseph
Aides, may have been performing sew bar work. As
soon as she started working, someone began collecting
and counting her production. On the following day,
there was no more button wrapping for her and she was
assigned to cleaning and checking garments. Again she
was told to keep a record of -her production. When she
protested the recordkeeping and insisted that she was on
an hourly rate, she was called to Sherwood's office. He
asked whether she was refusing to do the work he as-
signed to her and she insisted that she was entitled to her
old job back. With abusive, obscene language and in an
angry tone, Sherwood ordered her from the plant.33
The record reflects that approximately 26 of the
former strikers had been reemployed by Respondent
through January 22, 1983. In addition to the individuals
discussed above, they were: Rosa Polano, Steffan
Ashley, Christina Christowski, Ann Jamros, and Guisep-
pina Polce, all on November 30; Walter Manning-De-
cember 4; Josephine Daley-December 11; Rose Mar-
chetti-December 26; and Louise Whelan-January 22,
1983.
The following strikers had not been reinstated by the
close of hearing: Concetta Ruperto, Donna Crawford,
Rose Notto, Irma Dinicola, Yolanda Potter, Regina Ly-
secka, Teresa McCormack, Deborah Wood, Kathleen
Sabin, Deborah McGivern, Hannah Bontempo, Laura
Pike, Catherine Triano, Ruth Sabin, David Amlaw,
Thelma Leveille, Steve Mathes, David Heath, Ronald
Smith, Donna Passons, Gloria Civello, Catherine Carlo,
B. Williams, William Paradysz, Charles Holmes, Thomas
Spargo, Marion Smith, John Descensi, Dianna Grace,
Stella Hoffman, Gregory Smith, Michael Soules, Marie
Hebert, and Kevin Fowler.34
At all times since September 2, Respondent has re-
tained in its employ strike replacements who continued
to perform the jobs previously done by reinstated and
unreinstated strikers. Additionally, while--some unfair
labor practice strikers remained unreinstated, and while
others were laid off subsequent to their 'reinstatement,
Respondent subcontracted some of the work of assem-
bling or framing linings. The record does not reveal the
exact number of strike replacements who continued--to
work, the work they were doing in all cases, or the
tenure of their employment However, the fact that some
strike replacements continued to work while former
strikers who had previously performed that work were
laid off is evident from documentary evidence particular-
ly time and piece rate cards. For example, as described
in the General Counsel's brief: Susan Barnes was laid off
on January 28, 1983, while strike replacements Pat
3' At her husband's urging, based on knowledge of what had befallen
other employees, Sayers carried a small tape recorder with her into Sher-
wood's office Based on that fact, Respondent intimated that Sayers pro-
voked her own discharge I do not believe that she did
34 The foregoing is drawn from G C Exh 77 and record testimony
Contrary to the indication in the record, G C Exh 77 was received in
evidence
WORKROOM FOR DESIGNERS
Wiken and Robert Banderburgh continued to perform
work which she had previously done; Louise Whelan
was laid off on January 28, only a few days after her re-
instatement , while strike replacement Louvinia Crockett
continued to do the work she had been doing; Ann
Jamros, Sherry Briggs, Rose Galvagni, and Diane Andr-
zejewski were laid off or worked short weeks in January
and February 1983 while work which they had per-
formed, including framing and pockets, was either sub-
contracted or performed by strike replacements; Jose-
phine Daley, Walter Manning, and Daniel Corrado were
similarly laid off at various times while operations on
which they were experienced were run by strike replace-
ments.
2. Discussion
(a) Poststrike conduct violative of Section 8(a)(1)-The
General Counsel alleges, and I find, the following acts to
be additional violations of Section 8(a)(1)-
(1) Sidney Sisselman's statement, of September 2,
wherein he said, "I'd be dead before the Union gets in
here." As the Board held in Vincent et Vincent, 259
NLRB 1025, 1030 (1981), "Such an anticipatory refusal
to bargain interferes with employees' free choice since it
tends to create an atmosphere of futility."
(2) On September 3 and 7, Sidney and Brian Sisselman
told returning strikers that there were no more applica-
tions, that Respondent was not going to hire them back,
and that they should leave the plant They were entitled
to reinstatement; to imply that completion of a new ap-
plication was a precondition to reinstatement and to tell
them that they would not be reinstated are unquestion-
ably coercive. Mark Twain Marine Industries, 254 NLRB
1095 (1981). Sidney had expressed his intention to harass
the strikers by requiring new applications and I find the
requirement that they submit new applications to be part
and parcel of his unlawful harassment of them. I do not
accept the incredible and inconsistent explanations which
Sidney and John Sherwood offered to justify this re-
quirement.
- ,(3) Respondent's agents harassed the returned strikers,
venting their anger at the employees' exercise of statuto-
ry rights and making plain to all within earshot both
their oppositon to the exercise of such rights and the
kind of treatment anyone so involved could expect. Such
..conduct unquestionably tends to coerce both the recipi-
ents of such abuse and anyone else who might observe
or hear of it. See Huck Mfg, supra, and O. K. Machine &
Tool Corp., 251 NLRB 208 (1980), in both of which were
much milder forms of harassment found to be violative
of Section 8(a)(1). Specifically, I find the following acts
of harassment to be violative: Brian Sisselman's obscene
orders, on November 4, for an employee to cease stand-
ing near Bernadette Holmes and his obscene abuse of
her, S. L. Industries, 252 NLRB 1058 ( 1980), Brian Sissel-
man's obscene and physically abusive conduct toward
Patricia Gage in mid-November, Brian Sisselman and
John Sherwood's obscene harassment of Robert Sabin on
November 30, including Brian's physical abuse of Sabin;
Sidney Sisselman's attempts to discourage the return of
Daniel Corrado, Rose Galvagni, Rose Sayers, Robert
861
Sabin, and Susan Barnes, and Sidney Sisselman's verbal
abuse of George Fiehrer.
(4) Respondent's agents threatened returning strikers
with discharge or more onerous or otherwise intolerable
working conditions if they returned. Specifically, I find
the following threats violative of Section 8(a)(1). Sidney
Sisselman's statement to Rose Galvagni that "it would be
miserable" if she came back, Sidney Sisselman's threats,
on November 29 and 30, to fire Robert Sabin and Juanita
Fortune or make them quit, and to make their working
conditions, and particularly Sabin's first day back, as
"miserable" as possible, and Brian Sisselman's threat to
make Robert Sabin's second day back worse than his
first
(5) The General Counsel alleged that John Sherwood
imposed more onerous working conditions on Bernadette
Holmes and Robert Sabin. The record reflects that
Holmes' work was inspected and that she was told to use
a machine which would show her her rate of production.
Credible explanations were offered for both and, while
she had not been similarly treated prior to the strike, I
cannot find that either action was "onerous" or motivat-
ed by her protected activity. Similarly, I cannot find that
Sherwood's order to Sabin, to restack the boxes, was on-
erous. Stacking boxes was his job and, while this order is
suspect, there is not sufficient evidence to sustain the
General Counsel's burden of proving that such work was
unnecessary or ordered only to harass Sabin. According-
ly, I shall recommend that these allegations be dismissed.
I shall similarly recommend the dismissal of those allega-
tions which assert that Sherwood, on December 2 and 3,
told an employee that she would never get her old job
back. These allegations appear to refer to the exchanges
between Sherwood and Rose Sayers. The evidence does
not support the contention that he told her this.
(b) Reinstatement if the unfair labor practice strikers-
refusal and delay-Section 8(a)(3)-As previously stated,
the employees who struck from March 31 through Sep-
tember 2 were unfair labor practice strikers. Respondent
was obligated, on their unconditional offer to return to
work, to reinstate them to their former positions of em-
ployment Included in this obligation was the duty to dis-
miss, if necessary, those persons hired as replacements
after the strike began. Arcadia Foods, supra, and case
cited therein Here, in addition to the individual offers
made by the strikers, the Union made unconditional
offers on behalf of all strikers. Such an offer is valid and
operates to initiate Respondent's reinstatement obligation.
Matlock Truck Body Corp., 248 NLRB 461 (1980)
Respondent was operating his plant with approximate-
ly 40 strike replacements and the same volume of work
which it had prior to the strike. None of the replace-
ments were dismissed to make room for the returning
strikers. Yet no striker returned until September 13, only
3 were reinstated during September, only 4 more were
reinstated at the end of October, and none of the remain-
ing 19 who were reinstated came back before the U.S.
district court ordered the reinstatement of all the strikers
on November 19 As of the close of this hearing, ap-
proximately 34 unfair labor practice strikers remained
unreinstated. The failure to timely reinstate all of these
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees violates Section 8(a)(3) and (1) of the Act and
I so find.
The record establishes that even of those who were re-
instated, some received less than full reinstatement. Re-
spondent laid off reinstated unfair labor practice strikers
while strike replacements were retained to perform the
same work which the strikers had performed before and
since the strike. Such conduct further violates Section
8(a)(3) and (1) and I so find.
(c) Constructive discharge of and failure to recall, Berna-
dette Holrnes-Holmes was reinstated about November 1
She worked 1 day, was laid off for 1 day, worked for
another day and one-half, and left. The General Counsel
contends that Respondent had imposed onerous working
conditions upon her, thus constructively discharging her
I cannot agree Neither the inspection of her work,
which was required by the Government, nor the effort
to increase her productivity so that she might move on
to piecework and increase her earnings, were so onerous
as to make continued employment intolerable and sup-
port a constructive discharge, even when considered in
conjunction with Brian's obscene abuse and Sidney's
stated intention to force the returning strikers to quit
Accordingly, I shall recommend that this 8(a)(3) allega-
tion be dismissed. Similarly, even though Sidney Sissel-
man wrote on the form letter that Bernadette was not
sent an offer of reinstatement pursuant to the district
court's order because she had filed an unfair labor prac-
tice charge against Respondent, I shall recommend that
the 8(a)(4) allegation be dismissed. When that notation
was made, Holmes had already been reinstated and had
terminated her employment; there was no further obliga-
tion to reinstate her.
(d) Discharge of Patricia Gage-Gage was discharged
on November 17 following her altercation with Russ
Wiken. For the following reasons I am persuaded that
her discharge was discriminatorily motivated. Sherwood,
who discharged her, undertook no investigation of the
altercation. To the extent that Sherwood knew what had
transpired between Gage and Wiken, he had to believe
that Wiken was at least equally culpable if not entirely
so. Thus, he knew, from Wiken's mouth, that Wiken had
initiated the trouble and he also knew, from his own ob-
servation, that Wiken was making threatening gestures
toward Gage. Sherwood did not discipline Wiken. And,
most significantly, Sherwood discharged Gage, not for
what she had done to Wiken, but rather for her failure to
follow his direction that she, as a returning striker, main-
tain a low profile vis-a-vis the other employees. It is in-
herently discriminatory to require returning strikers to
maintain a standard of behavior different from non-
strikers, to require them to withstand the abuse of non-
strikers, and to discharge them for their failure to do so.
Accordingly, I find that by discharging Patricia Gage on
November 17, Respondent further violated Section
8(a)(3)
Notwithstanding the notation purporting to inform the
district court that no offer of reinstatement was made to
Gage because she had filed an unfair labor practice
charge, I find no violation of Section 8(a)(4). At the time
this notation was made, Gage had been reinstated and
then discharged. The notation appears to be more a ref-
erence to her status and the events which had just tran-
spired than a refusal to again offer her reinstatement. I
note, moreover, that Gage was not one of the employees
ordered reinstated by Judge Freedman.
(e) Constructive discharge of Robert Sabin-The recep-
tion which greeted Robert Sabin upon his reinstatement
was as cruel as any I could imagine. He was threatened,
abused, and physically assaulted. He was humiliated by
the imitation of a condition over which he had no con-
trol. Continued employment under such conditions (and
worse, as threatened by Brian) is not tolerable and a ter-
mination to avoid such conditions is not voluntary.
Daniel Construction Co., 244 NLRB 704, 721 (1979)
Sabin had been subjected to those conditions because of
his protected activity and his involuntary termination is
violative of Section 8(a)(3)
(f) Discharge of Rose Sayers-Rose Sayers was reinstat-
ed to piecework jobs while at least one strike replace-
ment continued to occupy the position which Sayers
held before the strike. She was discharged when she in-
sisted on proper reinstatement, i.e., reinstatement to her
former position. Her reinstatement was faulty and both
the failure to properly reinstate her and her discharge
violated Section 8(a)(3).
F. The Refusal to Bargain
1. The unit
Respondent admitted that the following unit of its em-
ployees is appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees includ-
ing cutters, stitchers, floorworkers, inspectors and
mechanics, employed by the Employer at its Pitts-
field, Massachusetts location, but excluding office
clerical employees, professional employees, and
contract administrators, managerial employees,
guards and supervisors as defined in the Act.
2. The Union's majority status
The parties stipulated that there were 76 employees in
the appropriate unit during the payroll period beginning
on March 28 Authorization cards, unequivocally desig-
nating the ILGWU to be their collective-bargaining rep-
resentative,35 were signed by 55 employees on or before
March 31, employees signed on April 1, and 1 more
signed on April 2. There was no evidence that any of the
card signers were misled about the purpose of the cards.
The authorization cards are, I find, valid designations
of the Union as the employees' bargaining representative.
Moreover, I find that substantially more than a majority
of the employees, 60 out of 76, so designated the Union.
as The card, a model of clarity, read
I hereby join with fellow workers in organizing to better our wages,
our working conditions and our lives I want the International
Ladies' Garment Workers' Union to be my representative in collec-
tive bargaining for wages, hours and working conditions
WORKROOM FOR DESIGNERS 863
3. Demand and refusal
Union representatives attempted to show Sidney Sis-
selman the authorization cards when they met on April
1. He refused to look at them When the parties met on
April 2, with Respondent's counsel present, a clear and
unequivocal claim of majority status and a demand for
recognition were stated. The demand was rejected.
4 The appropriateness of a bargaining order
remedy
The starting point for consideration of whether the un-
lawful conduct found herein warrants or requires a bar-
gaining order is NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). Therein, the Supreme Court held that such
an order would be an appropriate remedy for- (1) "`ex-
ceptional' cases marked by `outrageous' and `pervasive'
unfair labor practices . . of `such a nature that their co-
ercive effects cannot be eliminated by the application of
traditional remedies, with the result that a fair and reli-
able election cannot be had... and (2) "less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election process." The court
went on to point out that the Board, "[i]n fashioning a
remedy" could "properly take into consideration the ex-
tensiveness of an employer's unfair labor practices in
terms of their past effect on election conditions and the
likelihood of their recurrence in the future." Gissel, 395
U.S. at 614. Considering the instant case pursuant to
these standards, as the Board has applied them, I con-
clude that a bargaining order is required to protect the
free expression of employee sentiment, as demonstrated
by the signed authorization cards.
There can be no doubt that Respondent's conduct here
falls within the first category set forth by the Court in
Gissel. Respondent's extensive unfair labor practices
began as soon as there was a suspicion of union activity
and continued, unabated, at least through the close of
this hearing, more than a year later The unfair labor
practices, which occurred in a small plant where their
effect was heightened and more difficult to eradicate (El
Rancho Market, 238 NLRB 468 (1978)) and in a small
community where they were well publicized, affected or
were observed by virtually every unit employee.
Included among the unfair labor practices were repeat-
ed threats to close or move the plant. As stated in Milgo
Industrial, 203 NLRB 1196, 1200-1201 (1973).
[T]hreats of plant closure and job loss in the event
of the Union's advent are plainly actions which in
and of themselves are egregious enough under the
rule of Gissel to come within the first category
there specified, of "unfair labor practices of such a
nature that their coercive effects cannot be eliminat-
ed by the application of traditional remedies."
See also Automated Business Systems, 205 NLRB 532, 536
(1973).
The unfair labor practices also included, as a principal
theme, Respondent's willingness to physically harm, to
"get," "hit," "spit upon," "burn," and "kill," the striking
employees and their representatives. The threats to hit
and to spit upon them were repeatedly carried out Few
acts could have an effect less likely to be eliminated by
the application of traditional remedies than these acts of
violence. Scott's Wood Products, 242 NLRB 1193 (1979).
Similarly difficult to erase is the effect of Respondent's
discharge of all of the strikers and its continued discrimi-
nation against them This alone would justify a bargain-
ing order Glengarry Contracting Industries, 258 NLRB
1167 (1981).
Moreover, the extensiveness of the unfair labor prac-
tices, the fact that many assaults and threats occurred in
the presence of police officers and, in at least one case,
was directed at a police officer, and the further fact that
the unfair labor practices continued even after they were
enjoined by the United States district court, indicates
that Respondent was contemptuous of the Act and the
orderly processes of the law. I therefore find it unlikely,
if not impossible, that imposition of the Board's tradition-
al remedies short of a bargaining order would "dispel the
coercive atmosphere this Respondent has labored so as-
siduously to create " El Rancho Market, supra. This is
clearly one of those cases wherein "employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order." Gissel, supra at
615.
Accordingly, I find that Respondent has unlawfully re-
fused to bargain with the Union since April 2, 1982, the
date of the Union's unequivocal demand for bargaining.
THE REMEDY
It having been found that Respondent Workroom For
Designers, Inc. and Respondent Sidney H. Sisselman
have engaged in unfair labor practices in violation of
Section 8(a)(1), (3), and (5) of the Act, it will be recom-
mended that Respondent be required to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Anita Burnham, all of the striking employees,
and subsequently discriminatorily discharged Patricia
Gage, Robert Sabin Jr., and Rose Sayers, following their
reinstatement, Respondent shall offer them immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and shall make them
whole for any losses they may have suffered by reason
of the discrimination against them. All references to their
discharges shall be expunged from Respondent's files and
Respondent shall notify each of them, in writing, that
this has been done and that evidence of the unlawful dis-
charges will not be used as a basis for further personnel
actions against them. As previously discussed, all of the
employees who were discharged on March 31 and April
I were unfair labor practice strikers. In Abilities & Good-
will, 241 NLRB 27, 28 (1979) (Members Penello and
Murphy, dissenting), enf. denied 612 F 2d 6 (1st Cir.
1979), the Board stated that "rather than require the dis-
criminatees to engage in the vain procedure of requesting
reinstatement, it is clearly less burdensome to require the
wrongdoing employer to advise his victimized employees
that, although he discharged them, he is now rescinding
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that action and offering them reinstatement." In this case,
although Respondent purported to ask the discharged
striking employees to return to work, his requests as I
found, were not bona fide good-faith offers of reinstate-
ment . Accordingly, I find that the discharged unfair
labor practices strikers are entitled to backpay from the
date of their discharges.36 Any backpay found to be due
shall be computed in accordance with the formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977).37
As previously indicated, I have concluded that Re-
spondent's unfair labor practices have made a free and
fair election unlikely, if not impossible, even with the ap-
plication of such traditional Board remedies as reinstate-
ment and backpay for the discriminatees , the posting of a
notice, and a cease-and-desist order. I shall therefore rec-
ommend that a bargaining order issue.
The unfair labor practices committed by Respondent
Workroom For Designers, Inc. and Respondent Sidney
H. Sisselman were widespread and egregious, and
spanned the entire period of the organizational campaign.
They demonstrate a general disregard for the employees'
fundamental statutory rights and a proclivity to violate
the Act. Accordingly, a broad order, directing Respond-
ent to cease and desist from "in any other manner inter-
fering with, restraining, or coercing employees" is war-
ranted. Hickmott Foods, 242 NLRB 1357 (1979).
CONCLUSIONS OF LAW
1. Respondent has interfered with, restrained, and co-
erced its employees in the exercise of their Section 7
rights and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act by the following conduct:
(a) Threatening its employees with discharge, plant
closure, and plant removal.
(b) Threatening to "get," "hit," "spit upon," "kill,"
"burn," or otherwise assault employees.
(c) Physically assaulting and spitting upon employees
and union representatives.
(d) Soliciting employees and others to assault striking
employees.
36 In the event that the Board or a reviewing court were to find valid
one or more of Respondent's offers to reinstate the discharged unfair
labor practice strikers, thus tolling Respondent 's backpay obligation, then
that backpay obligation resumes as of September 2, 1982, the date on
which the unfair labor practices strikers made an unconditional offer to
return to work Respondent's delay and/or rejection of the requested re-
instatement precludes application of the 5-day period which is otherwise
permitted as a reasonable accommodation between the unconditional re-
quest for reinstatement and the commencement of backpay Harris-Teeter
Super Markets, 242 NLRB 132 (1979) In light of Respondent 's continued
retention of the strike replacements and its continued subcontracting of
work performed by unit employees prior to the strike , while the unfair
labor practice strikers remained unreinstated or were on layoff following
their reinstatement, it is appropriate that the exact determination of the
extent of this discriminatory conduct be left to the compliance stage of
this proceeding
11 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
(e) Interrogating employees concerning their union ac-
tivities and the union activities of other employees
(f) Creating the impression of surveillance of the em-
ployees' union activities.
(g) Promising benefits to employees if they would
abandon the strike.
(h) Telling employees that they were being discharged
because of their union activity and telling striking em-
ployees that they would never be reinstated.
(i) Threatening striking employees that they would be
treated as having quit or would otherwise lose their jobs
unless they abandoned the strike.
(j) Harassing reinstated unfair labor practice strikers
and others who were seeking reinstatement and attempt-
ing to force them to quit or to discourage them from re-
turning to work.
(k) By threatening to impose more onerous working
conditions upon reinstated unfair labor practice strikers.
2. The strike which began on March 31, 1982, was
caused, prolonged, and aggravated by Respondent's
unfair labor practices and was an unfair labor practice
strike.
3. Respondent has discriminated against its employees
in order to discourage their involvement in union activi-
ties, in violation of Section 8(a)(3) and (1) of the Act by
discharging employees engaged in union activities and by
failing and refusing to properly and timely reinstate
unfair labor practice strikers upon their unconditional ap-
plication for reinstatement.
4. All production and maintenance employees includ-
ing cutters, stitchers, floorworkers, inspectors and me-
chanics, employed by the Employer at its Pittsfield, Mas-
sachusetts location, but excluding office clerical employ-
ees, professional employees, contract administrators,
managerial employees, guards, and supervisors as defined
in the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
5. Since about April 2, 1982, and at material times
thereafter, the Union has represented a majority of the
employees in the above-described unit and has been the
exclusive representative of all said employees for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act. Respondent was on the date, and
has been since, legally obligated to bargain with the
Union.
6. By refusing to recognize and bargain collectively
with the Union with regard to its employees in the ap-
propriate unit since about April 2, 1982, Respondent has
violated Section 8(a)(5) and (1) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
8. Respondent did not engage in any unfair labor prac-
tices other than those found herein.
[Recommended Order omitted from publication.]