Marie Antoinette Manufacturers

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