G. A. Dress Co., Inc.

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. A. Dress Co., Inc. and Local 107, International La- gent work rules because of protected concerted activ- dies' Garment Workers' Union, AFL-CIO. Case ity." 29-CA--4490 2. Substitute the attached notice for that of the Administrative Law Judge. June 24, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On February 17, 1976, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order, except as modified below. i Members Fanning and Penello find that Supervisor Tomaselli's castigat- ing and insulting employee DiFiore for passing out union authorization cards at lunchtime while Tomaselli was not present violated Sec 8(a)(1) of the Act In front of other employees, Tomaselli called DiFiore a "sneaky thing" and asked, "Why don't you distribute them while I'm in the room Why not while I'm in the room)" In the view of Members Fanning and Penello, Tomaselli's remarks could only serve to restrain employees in the exercise of lawful union activity Member Walther would not find that Respondent violated Sec 8(a)(I) either by Floorlady Tomaselli's questioning of DiFiore on or about May 7 about whether she had signed a union card, or by President Drogo's telling employees that if the Union came in he would probably have to go out of business because he didn't know of any union jobbers from whom he could expect to get business As to the first incident, this occurred while DiFiore was wearing a large button containing the inscription "The Union for Me, ILGWU," and was openly distributing union literature to employees ap- proaching the staircase to the factory Member Walther finds it difficult to conceive how the question put to DiFiore who was openly advertising her allegiance to the Union can be said to have been coercive As to President Drogo's statement, Member Walther would find that it represented Respondent's belief "regarding the demonstrable economic consequences beyond its control which could flow from unionization " As such it was protected by Sec 8(c) of the Act Birdsall Construction Company, 198 NLRB 163 (1972), enfd 487 F 2d 288 (C A 5, 1973) Finally, Member Walther agrees with the Administrative Law Judge that Floorlady Tomaselli's calling DiFiore a "sneaky thing" for distributing union authorization cards, behind the back of the floorlady did not rise to the level of an 8(a)(1) violation Tennessee Shell Company, Inc, 212 NLRB 193 (1974) (Members Fanning and Jenkins dissenting), Montgomery Ward and Co, Incorporated, 187 NLRB 956, 964 (1970) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge , as modified below, and hereby orders that the Respondent, G. A. Dress Co., Inc., Port Jefferson, New York, its officers, agents , successors , and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(a) of the Administrative Law Judge's recommended Or- der: "(a) Threatening to close its plant if Local 107, International Ladies Garment Workers' Union, AFL-CIO, herein called the Union , or any other la- bor organization , becomes the bargaining representa- tive of its employees ; interrogating its employees concerning their interest in or sympathy for the Union , or in any other protected concerted activity; urging any employee to quit because of engaging in any protected concerted activity ; encouraging its em- ployees to urge any of its employees to quit because of said employees engaging in protected concerted activity; castigating and insulting any of its employ- ees because they have engaged in protected concert- ed activity ; and threatening to discontinue its policy of permitting part-time work or imposing more strin- APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity, ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT threaten to close down the facto- ry or threaten to discontinue the policy of per- mitting part-time work or impose more stringent work rules because you join Local 107, Interna- tional Ladies' Garment Workers' Union, AFL- CIO, or any other labor organization. 225 NLRB No. 8 G. A. DRESS CO., INC WE WILL NOT urge any employee to quit or encourage our employees to urge any of our em- ployees to quit because of their membership in or sympathy for Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT question our employees concern- ing their union membership or activity. WE WILL NOT castigate or insult our employees because they pass out union authorization cards or engage in any other protected concerted ac- tivity. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of any of your rights set forth above which are guaranteed by the National Labor Relations Act. G. A. DRESS CO., INC. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: This case was heard before me in Brooklyn, New York, on and be- tween December 8 and 11, 1975. The complaint, issued on October 24, 1975, pursuant to a charge filed on July 31, 1975, alleges that the above-named G. A. Dress Co., Inc., herein called Respondent, engaged in unfair labor practic- es within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer denying the commis- sion of the alleged unfair labor practices.' All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to argue at length on the record. Neither General Counsel nor Re- spondent filed a brief in this matter. Upon the entire rec- ord in the case, including the argument of counsel on the record, and from my observation of the demeanor 2 of the witnesses, I make the following: 1 In substance , the complaint, as amended at the hearing, alleges unlawful interrogation , threats to discontinue a practice of permitting part-time work and to close the plant and lay off employees , an unlawful refusal to consider applicants for employment because of their membership in and activity on behalf of the above-named labor organization, harassment of an employee, Rose DiFiore, isolating her from other employees and, finally, the construc- tive discharge of employee Rose DiFiore and a failure to reinstate or offer to reinstate her At the hearing , Respondent admitted the "commerce alle- gations" in the complaint, and admitted the jurisdiction of the Board It was stipulated by the parties that Mae Tomaselli, Respondent's floor lady, had authority to hire, recall, promote, and discipline (other than dis- charge) Respondent's employees, all in the interest of Respondent (G C Exh 2) 2 The facts found herein are based on the record as a whole upon my observation of the witnesses . The credibility resolutions have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses and the teaching of N L R B v Walton Manufacturing Company & Loganville Pants Co, 369 U S 404, 408 (1962) As to those witnesses testifying in contradiction of the FINDINGS OF FACT I. JURISDICTION 61 The complaint alleges, Respondent G. A. Dress Co., Inc., admits, and I find, that Respondent is, and has been at all times material herein, a corporation duly organized under and existing pursuant to the laws of the State of New York; that Respondent maintains its principal office and place of business at 21 Perry Street, in the village of Port Jefferson, County of Suffolk, State of New York, where it is, and has been at all times material herein, engaged as a contractor in the assembly and finishing of women's dress- es and related products in the ladies garment industry. During the 12-month period ending October 1975, a repre- sentative period, Respondent in the course and conduct of business operations performed contract services at its plant valued at $200,000 of which services valued in excess of $50,000 were furnished to, among others, an employer which annually produces products valued in excess of $50,000 shipped directly out of the State of New York wherein said employer is located. The complaint alleges, Respondent admits, and I find that Respondent has been at all times material herein an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Local 107, International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union , is a labor orga- nization within the meaning of Section 2(5) of the Act. III. ISSUES (1) Whether on or about May 7 and other dates in May and June 1975, Respondent, by Nazareno Drogo, its presi- dent and agent and by its floorlady, Mae Tomaselli,3 en- gaged in unlawful interrogation, made unlawful threats of discontinuing part-time work and closing of its plant, of laying off of its employees, and unlawfully refusing to con- sider named applicants for employment because of their membership in and activity on behalf of the Union. (2) Whether commencing on or about May 7, 1975, Re- spondent, by Nazareno Drogo and Mae Tomaselli, har- assed Rose DiFiore, an employee, by isolating her from other employees; by calling the attention of its employees in a critical and abusive manner to Rose DiFiore's activi- ties on behalf of the Union; by denying her access to the Employer's premises during worktime because of her activ- ities on behalf of the Union; and finally, by urging her to findings herein , their testimony has been discredited , either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record 3 Upon the stipulation (see In 1) regarding Tomaselli's authority, she is clearly a statutory supervisor of Respondent within the meaning of Sec 2(11) of the Act and I so find 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit her employment and by refusing to prevent other em- ployees from harassing DiFiore and urging her to quit. Whether on or about June 2, 1975, Respondent con- structively discharged Rose DiFiore. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent established manufacturing operations at the above-noted Perry Street address in Port Jefferson, Long Island, in May 1968. The evidence shows that the factory occupies the second floor of a two-story building with an outside staircase leading to the second floor premises. An outside sign on the second floor, in existence up through June 1975, states: Operators Wanted-G. A. Dress Co. (G.C. Exh. 6). Respondent's president, Nazareno Drogo, testified that in June 1975 he painted out the portion of the sign which states "Operators Wanted." As a ladies' dress contractor, Respondent employs about 30 sewing machine operators who assemble various por- tions of the contracted dresses from bundles of cut materi- als which are placed on tables in front of their sewing ma- chines. Respondent's factory on the second floor also has a separate, enclosed "finishing room," separated from the sewing machine room in which the sewing machine opera- tors sew the garments. In the finishing room, the garments are processed after assembly and after stray threads are removed. Mae Tomaselli, the floorlady, hired in 1968, was in fact the chief supervisor in the factory until her resignation in August 1975. President Nazareno Drogo visits the factory from time to time, particularly when problems of pricing of garments arise between management and the employees. The evidence also shows that Rose DiFiore, employed by Respondent as a part-time sewing machine operator for a period of about 7 years until June 2, 1975, regularly worked by arrangement with the Respondent for 10 months during each year. The two summer months were devoted to the care of her minor child. Similarly Rose Di- Fiore ordinarily started work some 10 or 15 minutes after the other operators commenced work at 8 a.m. each day and also left by 2 p.m. prior to the other employees. She was never reprimanded or cautioned by any supervisor for these working hours or for her summer separation from the Company. These hours and that separation were a practice which the Employer accepted. Mrs DiFiore testified that she is a piece worker, earning about $40 or $50 per week, and that other sewing machine operators worked a similar pattern regarding not being employed during the summer months. She and the other 30 operators punch a timeclock. It is uncontested that there are no smoking signs through- out the shop and that at least in the year commencing 1975 Respondent attempted with indifferent success to enforce the rule against employees smoking at their sewing ma- chines. Smoking is permitted either in the ladies' room or on a small porch which forms the topmost area of the out- side steps leading to the second floor factory premises. DiFiore testified that she was a member of Local 107 ILGWU in the period 1967-1968, and it appears that none of the Respondent's employees are represented by a labor organization. DiFiore testified that she met Barbara Lauf- man, a union organizer for Local 107, in late April 1975, and at Mrs. Laufman's request signed a membership card in Local 107. A few days after meeting Mrs. Laufman, DiFiore met Mary Ruggiero, a business agent for Local 107. When Mrs DiFiore signed a membership card for Mrs. Laufman, she told Mrs. Laufman of other of Respondent's operators who might be sympathetic to the objects and aims of Local 107. Thereafter, Mrs. Laufman went to those other employees of Respondent and, accord- ing to her testimony, solicited and received signed cards from them. Their names were not revealed to DiFiore. Mrs. Laufman and Mrs. Ruggiero requested Rose DiFiore to help organize the Respondent's shop and she agreed. On May 6, 1975, Ruggiero and Laufman asked Rose DiFiore to join them in distributing union leaflets in front of Respondent's factory on the next day, May 7, 1975. She agreed to do so. B. The Events of May 7 and 8, 1975 By 7 a.m., May 7, 1975, Business Agent Ruggiero, Union Organizer Laufman, and employee Rose DiFiore drove to the factory premises, all three of them wearing large green and white union buttons bearing the inscription "The Union for Me, ILGWU." They distributed union literature to employees approaching the staircase to the factory. Floorlady Tomaselli arrived. Rose DiFiore testified that Mae Tomaselli approached them and said "What's going on?" Then, looking at the union agents, asked "She signed? She signed?" Mrs. DiFiore said that either Mary Ruggiero or Barbara Laufman answered: "Well, she's here, isn't she?" Mrs. Laufman testified that as she attempted to give Mae Tomaselli a union leaflet, Mae Tomaselli said to Rose DiFiore directly "did you sign?" Mrs. Laufman said that she believed that Mary Ruggiero then said "Well, she's here, isn't she)" Mary Ruggiero testified that, after Mae Tomaselli was handed a leaflet, Mae Tomaselli looked at Mary Ruggiero and asked Mary Ruggiero if Rose DiFiore had signed with the Union. Mary Ruggiero stated that she made the above response. In any case, after this exchange, Mae Tomaselli mounted the steps and thereafter entered the shop. However, before she walked away, Laufman re- members Mae Tomaselli saying "I'll take care of you. Wait until Reno gets here " Neither Rose DiFiore nor Mary Ruggeeio, both of whom were in the immediate presence of Mrs. Laufman, corroborated this final parting remark. I do not credit Mrs. Laufman in this last remark, in view of the lack of corroboration and Tomaselli's denial of the remark. Insofar as Mae Tomaselli denied the other parts of the conversation, I do not credit her denial. Rose DiFiore, Mary Ruggiero, and Barbara Laufman continued to dis- tribute leaflets. About 8 a.m. Rose DiFiore left the two union agents and proceeded up the stairs to work. Mrs. Laufman gave Rose DiFiore 25 or 30 union authorization cards and asked her to distribute them during the lunch hour among the employees. DiFiore went up to work. Shortly after 8 a.m., after Rose DiFiore had entered the factory, President Nazareno Drogo drove up in a station wagon and parked the car across the street from the facto- ry. He approached Laufman and Ruggiero and said to them, according to the credited testimony of Laufman and Ruggeiro: "Get off my property, you creeps." Laufman G. A. DRESS CO, INC. 63 answered that they weren't on his property and they weren't "creeps." To this, Drogo answered' "Get lost you creeps." Nazareno Drogo then mounted the steps and en- tered the shop. Meanwhile, Rose DiFiore had punched the timeclock and approached her machine. At this point, Mae Tomaselli yelled "here she is." DiFiore stated that, with the sewing machine operators at their machines, Tomaselli and Naza- reno Drogo commenced screaming at her. According to credited testimony of Rose DiFiore, Mae Tomaselli said- "After I gave you a chance to work part-time, you do this to us." Respondent's president, Nazareno Drogo, stated to DiFiore and the other operators' "who wants the Union, they do nothing for you." DiFiore described Drogo as pac- ing up and down the aisles between the machines. Some of the girls shouted "We don't want the Union." Others shouted that Rose DiFiore's sister worked in a union shop and that- "You want the Union? Why don't you work in your sister's shop." Reno Drogo also said to DiFiore: "From now on, you can't work part time anymore." Rose DiFiore asked Reno whether she should go to work, whether she should take her bundle of work from the work table and take it to her sewing machine. Drogo answered "take your bundle and I'll call my lawyers." DiFiore testi- fied that she was wearing her union button and wore her union button in the shop every day. At lunchtime Rose DiFiore distributed union authoriza- tion cards by placing them on the machines while the girls were at lunch At this time neither Reno nor Mae Tomasel- lf was present. Mae Tomaselli was in the finishing room. Thereafter, according to Rose DiFiore, Mae Tomaselli came rushing up to her and said: "You sneaky thing, you handed out cards while I wasn't in the room. Why don't you distribute them while I'm in the room. Why not while I'm in the room?" This was in the presence of the other sewing machine operators. During the distribution of union membership cards, employee Mildred Morgret, a witness called by Respondent, testified that DiFiore never gave her a card. She said that DiFfore, for reasons un- known to the witness, said "You don't want one." Another operator called by Respondent, Jeanine Evangelista, testi- fied that when Rose DiFiore gave out the cards, she stopped when Mae Tomaselli approached. Witness Evan- gelista testified she heard Mae Tomaselli say: "Give me some of the cards, I'll give them out." Mae Tomaselli testi- fied that one of the operators told her that DiFiore was giving out union cards. Tomaselli walked from the finish- ing room into the operators' room and said' "Why don't you give the cards out in front of me? Don't wait until I leave the room. There are other girls in there. Give it to the girls in there. Why do you wait for me to leave the room. Give them out in front of me." Tomaselli testified that at this point, Di Fiore went to her machine and commenced working. Except for the use of the words "sneak" and the difference in tone, the two versions are not exclusive of one another. Under the circumstances of the case and my ob- servation of the witnesses,4 and particularly the animus and anger which I noted in much of the testimony of em- ployees called as Respondent's witnesses (other than To- maselli) I credit the version of Rose DiFiore insofar as she said that Mae Tomaselli accused her of being a "sneak" in distributing the cards behind the back of the floorlady. While such a conversation demonstrates Tomaselli's hostil- ity and animus, I do not find it an act of unlawful interfer- ence, coercion, or restraint since there was no prohibition against distribution. Rose DiFiore went to work the next day, May 8, 1975. She testified that upon approaching her sewing machine about 8:10 a.m , Drogo, standing by the timeclock, said to her: "For now on you're to be at your machine at 8 a.m." In substance Rose DiFiore answered that she could not do so because of the problem of caring for her minor child. DiFiore says that Drogo did not respond at this point and walked away 5 Drogo denies the event. Rose DiFiore also testified that either on May 8 or 9 she was told not to smoke at her machine. She admitted that it was forbidden and that she did so outside the presence of Tomaselli. Nazareno Drogo testified that there has always been a no-smoking rule on the premises and that there are no- smoking signs liberally posted on the premises. He testified that, as far as he knew, there had been outstanding instruc- tions issued by Mae Tomaselli that there was to be no smoking at the machines. Drogo himself credibly testified that he never saw an employee smoke at the machines be- fore May 1975. Commencing in May 1975, he saw several employees, including Rose DiFiore, smoking at the ma- chines and told them not to smoke. He testified that he told Mae Tomaselli to enforce the rule. I do not find a violation in the enforcement of the no-smoking rule and none is alleged in the amended complaint. Mr. Drogo testified that he received an excited telephone call at 7.15 a.m from Mae Tomaselli on May 7, 1975, wherein she told him of the distribution of literature out- side the plant. He arrived shortly thereafter by car and saw Rose DiFiore and two other persons distributing the litera- ture. Mr. Drogo denies that he had a conversation with Rose DiFiore at any time that he saw her distributing liter- ature. He says that, after he went upstairs, he had a conver- sation with DiFiore when she came up. He says that Di- Fiore asked him if she was fired and he said no and that DiFiore appeared to be surprised. He testified that later in the morning, after he spoke to Rose DiFiore, four or five of the machine operators came to him and told him that they didn't want a union. He testified that the conversation with these employees who did not want a union did not last more than 15 minutes because that was the length of time he remained on the Respondent's premises after first arriv- ing He not only denies that he had any further conversa- tion with DiFiore that day, but he denies inquiring of any of the operators whether they wanted a union; denies ask- ing anybody if they had sympathies for the Union; denies inquiring whether anyone had helped the Union or wanted 4I have also taken into account, in evaluating DiFlore's credibility, a corroborating effect derived from the testimony of employees Sepe and Prawki, infra 5 1 conclude that, by this statement, Respondent threatened to impose a more stringent work rule because of DiFiore's union activity, in violation of Sec 8(a)(I) Though the matter was not specifically alleged in the com- plaint, there was no objection to the testimony 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union. He also denies DiFiore's testimony that he ran up and down the aisle screaming the question whether any- body wanted the Union. Lastly, Drogo stated that he did not think that he went to G. A. Dress shop on May 8, 1975. I credit the version of Rose DiFiore and I reject the denials of Tomaselli and Drogo. Thus I find that when Mae Tomaselli, on the morning of May 7, 1975, inquired of either of the agents, or of Rose DiFiore directly, whether Rose DiFiore had signed a card for the Union, this was unlawful interrogation. The fact that DiFiore was already wearing a union button is not inconsistent with this further inquiry. There was no showing of any lawful purpose in posing the question or that there would be a lack of retri- bution in the answer. This hostile interrogation violates Section 8(a)(1) of the Act. I reject Mary Ruggiero's testimony that, in addition, Mae Tomaselli warned Rose DiFiore that she would "take care of her" when Drogo came. Neither Rose DiFiore nor Barbara Laufman, as above noted, testified as to any such exclamation on the part of Tomaselli. I also find, crediting DiFiore's testimony and rejecting Drogo's denial, that on May 7, 1975, he went up the aisle of the sewing machine operators demanding, in angry tones, to know who wanted the Union and permitted and encouraged, by his example, employees to yell at Rose Di- Fiore to work in her sister's union shop rather than to re- main employed at G. A. Dress Company. I find that he was thereby unlawfully interrogating employees and at the same time, through the employees, unlawfully urging Di- Fiore to quit, all because she was engaged in union activi- ties. I find these also to be violations of Section 8(a)(1). When Drogo told DiFiore that she could not work part time any longer, I find that even though this was never implemented, this was an unlawful threat within Section 8(a)(1) because it was based on Rose DiFiore's member- ship in, and proselytizing for, the Union. On May 7, 1975, and about the time that President Dro- go warned and threatened DiFiore that, "from now on you can't work part-time anymore," Mae Tomaselli told her, according to the version I credit "After I gave you a chance to work part-time, you do this to us." I need not determine whether this statement of Tomaselli constituted an addi- tional threat or warning based on DiFiore's union activity in light of Drogo's similar threats. Testimony of Charlotte Prawki and Marie Sepe I regard the testimony of employees Charlotte Prawki and Marie Sepe, employed by Respondent in May-June 1975, and at the time of the hearing, to be persuasive in making the credibility resolutions in this case. The credibil- ity issues are sharply divided and there is little middle ground between the testimony of the witnesses for General Counsel, principally DiFiore, who testified with regard to alleged threats, interrogation, warnings, and harassment on the one hand, and the testimonial denials and explanations of Respondent's witnesses, both supervisors and unit em- ployees. Thus as noted above, I regard the testimony of Prawki and Sepe as shedding some light on the credibility General Counsel issues presented. The testimony of these employees em- ployed by the Respondent at the time of the hearing, nei- ther of them sympathetic to DiFiore or Local 107, is ordi- narily given particular weight in evaluating credibility. In relying on this rule, I agree with counsel for Respondent who urged me to bear in mind the fact that both DiFiore and Drogo were interested parties in the proceeding and their testimony must be viewed in that light. Furthermore, I agree with counsel for Respondent that insofar as em- ployee Prawki's testimony goes, it appeared to be highly credible 1. The testimony of Charlotte Prawki Paragraph 8 of the complaint herein alleges, in pertinent part, and Respondent denies, that on or about specific dates in May, and on various other dates "presently un- known" during the months of May and June 1975, Re- spondent threatened that it would close its plant and lay off its employess and threatened other reprisals if the em- ployees became or remained members of the Union or as- sisted or supported it. Charlotte Prawki testified that she was employed by and had worked for Respondent for 5 years as a sewing ma- chine operator; that she is not a member of the Union and had not been approached to sign a card for the Union; that at a time when Rose DiFiore was still employed by the Company, in the spring 6 of 1975, she recalled a conversa- tion in which Reno Drogo spoke to all the employees in the shop. Prawki said that Drogo told the operators: ". . . that if the Union come (sic) in . . . I probably would have to go out of business because I don't know of any union jobbers that I would be able to get work from. ..." Although Prawki did not remember the month in which this conver- sation occurred, she particularly remembered that no em- ployee asked Mr. Drogo a question before he made this remark. She testified that she paid no further attention to what he was saying. She testified that Drogo was standing about 12 feet away from her and, although this conversa- tion occurred during working hours, the machines were not operating. Mr. Drogo specifically denied making a statement sub- stantially in the words that Prawki testified to. Drogo also specifically denied saying, in words or effect, that if the Union came in he would have to close the shop . His testi- mony was only that sewing machine operators in the shop asked him whether, if the Union came in, he would have to close the shop He testified that he replied that the Union's coming in had "nothing to do with the shop." I was much impressed with the honesty and apparent straightforwardness of Charlotte Prawki's testimony. Al- though she could not recall the exact date, it was apparent that it occurred after the appearance of the Union and while Rose DiFiore was still employed; i.e., before June 2, 1975. Therefore the statement which Drogo addressed to the operators occurred some time after May 7, 1975, and prior to June 2, 1975. This time period is within the allega- tions of the complaint with regard to the threat. 6 Prawki was unsure of the date The season was suggested to her by G. A. DRESS CO., INC. 65 The resolution of credibility in favor of Prawki and against Drogo, in my estimation, is significant in this case in that it not only establishes an unlawful threat by Re- spondent to close down, but also tends to undermine reli- ance on Drogo's continuous denials of other testimony which was established through Rose DiFiore. While it is true, as counsel for Respondent argues, that the resolution of credibility between DiFiore and Drogo is the resolution of credibility between interested parties, Charlotte Prawki's testimony, the testimony of an employee still employed by the employer and facing the president thereof while testify- ing, comes in for special consideration. I conclude, on my observation of Prawki and Drogo on the witness stand, that Prawki's version should be credited, Drogo's discredit- ed, and the threat to close down a violation of Section 8(a)(1).' Of course, this does not mean that I accept , in toto, the testimony of all witnesses who testified contrary to the testimony of Drogo. Nevertheless, I view the discrediting of Drogo's denial as a serious reflection on his testimony and the question of union animus. 2. The testimony of Marie Sepe Marie Sepe, a sewing machine operator employed by Respondent at the time of the hearing, and also employed in May or June 1975, testified, in pertinent part when called as a witness by General Counsel, that on the morn- ing in which Rose DiFiore and the two union organizers distributed union literature, Marie Sepe entered the shop about 8 a.m., and that about 15 or 20 minutes later, Rose DiFiore entered the shop. In her direct examination she testified, corroborating DiFiore, that when Rose DiFiore entered the factory there was great deal of yelling whereby employees were telling DiFiore of the trouble she was caus- ing for bringing in the Union and Rose DiFiore was yelling back. The testimony is unclear, from Mrs. Sepe, whether Reno Drogo participated in or was even present during these early exchanges. When General Counsel, in direct examination, asked Mrs. Sepe whether on that morning (May 7, 1975) she could recall if Mr. Drogo said anything to her or to a group of sewing machine opeators, she testi- fied that she didn't remember too well; that without her glasses she was unable to read her statement given to a Board agent, that she swore what she told the Board agent was true; that she signed her name so swearing on Septem- ber 11, 1975; that she is not very good at reading English although she can read a newspaper fairly well, that she has trouble with the writing in the document; that she read the document many times and had no trouble reading it or understanding it; and, finally, that her husband had read it to her and that they had read it and gone over it together "inside out." With the witness demonstrating an evident uneasiness and an apparent desire not to testify at all, much less in 7 The explanation , that he could not find a union jobber to get work from, does not save the otherwise unlawful and coercive statement Where there is not a palpable economic connection suggested between the advent of the union and the closing of the factory, the statement is coercive , Greenfield Manufacturing Company, a Division of Kellwood Company, 199 NLRB 756 (1972) There was no explanation of or experience covering an inability to get a union jobber accordance with her prior statement, and an alleged loss of memory, I nevertheless ruled against General Counsel in- troducing the statement into evidence. Rather, I permitted General Counsel to examine the witness by leading ques- tions. In response to this procedure, Sepe testified that on the morning of May 7, while she was working at her ma- chine, she heard Reno Drogo speak when DiFiore entered the factory. There was a great deal of commotion at the time with many employees yelling. In answer to General Counsel's question: "Did you hear Reno say anything to Rose?" Sepe answered that she did not recall the event as of the time of her testimony. In answer to General Counsel's further question: "Did you hear him say if the girls don't want her, they should speak up?" The witness answered "he might have said that." Sepe was testifying with Mr. Drogo facing her in the room. This prompted General Counsel to inquire: "Do you feel funny about talking in front of Mr. Drogo?" The wit- ness' answer was, "not funny. I feel a little ashamed, my boss, is you know-why should-but I don't feel funny." She also testified that she did not mind him hearing what she was testifying to. On cross-examination by Respondent, Respondent testi- fied fully and even willingly. Mrs. Sepe testified that she could not recall hearing Mr. Drogo say that if the girls didn't want Rose DiFiore, they should speak up. She also could not recall that Mr. Drogo ever told Rose DiFiore that if she wanted a union shop that she should go to a union shop. On the basis of the above testimony, I reject Marie Sepe's recantation on cross-examination and I credit her direct testimony. I do so on the basis of my observation of her, her demonstrated fear of testifying against Respon- dent, my disbelief that she could not remember what was in her statement, and her affirmative testimony that Mr. Drogo "might have said" that if the operators did not want her (Rose DiFiore) they should speak up. In short, I credit Rose DiFiore's testimony, as corroborated in substantial part by Marie Sepe, that on May 7, 1975, Reno Drogo, president of the Employer, told the sewing machine opera- tors that if they didn't want Rose DiFiore they should speak up. I conclude and infer that this was Mr. Drogo's attempt to harass Rose DiFiore because of her activities in support of Local 107, ILGWU, and that this harassment was in furtherance of my earlier finding of his violations of Section 8(a)(1) of interrogating employees and harassing Rose DiFiore. Here, by urging her coemployees to act against DiFiore, he was urging employees to get DiFiore to quit, I conclude that Respondent, as alleged in section 10(a) and (e) of the amended complaint, was unlawfully isolating and harassing DiFiore, interfering with her pro- tected rights, and coercing both DiFiore and the operators he was addressing, all in violation of Section 8(a)(1). In addition, my finding that Drogo, in spite of his deni- als, made the statement attributed to him by Marie Sepe, as with the credited testimony of Charlotte Prawki, tends to undermine not only Drogo's testimony, but also the tes- timony of his subordinate supervisor, Mae Tomaselli, who supported Drogo's testimony. To recapitulate, I find, as alleged in the complaint, that in violation of Section 8(a)(1) of the Act Respondent, by 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nazareno Drogo and Mae Tomaselli, on May 7, 1975, un- lawfully interrogated its employees concerning their mem- bership and activities on behalf of Local 107; that on May 7, 1975, Respondent by its president, Drogo, threatened Rose DiFiore that she would not be thereafter permitted to work part time; and that, as testified to by Charlotte Prawki, the Respondent by Reno Drogo violated Section 8(a)(1) of the Act between May 7 and June 2, 1975, by threatening 8 to go out of business if the Union came in. Lastly, I find, in conformity with the testimony of Marie Sepe and Rose DiFiore, that Drogo unlawfully urged and encouraged the sewing machine operators to get DiFiore to quit and to speak up against Rose DiFiore if they didn't want her, thus, necessarily directing the employees to os- tracize her as alleged in paragraph 10(a) and urging her to quit as alleged in paragraph 10(e) of the complaint. I find these to be violations of Section 8(a)(1) of the Act. The acquiescence of Drogo and Tomaselli in the unlawful con- duct of Respondent's employees is sufficient to create a violation. Cf. Sargent Electric Co, 209 NLRB 630, 637 (1974) An employer has an affirmative duty to safeguard his employees from antiunion employees, D W. Newton, an individual, d/b/a Newton Brothers Lumber Company, 103 NLRB 564 (1953). C. The Events of May 9, 1975• Anna Arena and Antoinette Jackson Seek Employment Anna Arena, never an employee of Respondent, testified that she was employed as a sewing machine operator for an employer in Copiague, Long Island New York, for a period of 6 years, the same length of time that her friend, Antoin- ette Jackson, was employed by the same employer. She testified that they were neighbors of each other and that Antoinette Jackson always drove Anna Arena to work be- cause Anna Arena was unable to drive and there was no direct bus transportation. They both had been members of Local 107 for a number of years. Sometime prior to May 9, Union Agent Mary Ruggiero contacted them and asked whether they would go to the Respondent's premises to "apply for a job," and see if Respondent was discriminat- ing in hiring union members Neither had prior contact with Respondent. About 10 a.m., Antoinette Jackson picked up Anna Are- na in her car and drove to Local 107's office in Bay Shore, Long Island. There, they were met by Barbara Laufman. Shortly before noon the three of them drove to Respondent's premises in Port Jefferson and arrived there immediately before noon. Outside, they saw the large sign noting that Respondent "wanted" operators. They both wore the large union buttons which said "Union For Me, ILGWU." They went up the stairs into the factory and saw that the sewing machine operators had stopped for lunch. They asked for Mae Tomaselli. Anna Arena stated that Antoin- ette Jackson did most of the talking. She said that Mae Tomaselli saw the union buttons and asked. "What are you girls doing here? This is a nonunion shop and you 8I have found, above, an unlawful threat to impose on DiFiore more stringent work conditions don't belong here." Ann Jackson replied: "We are ap- plying for a job." Mae Tomaselli said: "I have no machines available." Anna Arena testified that, at that point, one of the sewing machine operators told Mae Tomaselli to call the boss and Tomaselli proceeded to do that. Arena and Jackson waited. About a half hour later, Reno Drogo ar- rived on the premises. Anna Arena testified that he asked what they wanted and they told him that they were looking for Jobs. He told them that there were no Jobs available but they inquired about the sign on the outside wall. Anna Arena testified that Drogo answered that the sign had been up a long time. He then allegedly turned to them, called them "bums" and "union stoolies" and told them to leave or they would be arrested. Anna Arena testified that they then left and never returned. She denied that the Union paid them to go there that day or that she had ever been paid by the Union to organize a shop. Mrs. Arena also testified that she and Antoinette Jack- son were in layoff status from their regular jobs. On cross-examination, Mrs. Arena testified that she was a member of Local 107 for about 8 years and had been laid off only a few days, perhaps 3 or 4 when she got a tele- phone call from Union Agent Marie Ruggiero. She testi- fied that she had never contacted Mary Ruggiero advising her that she or Antoinette Jackson had been laid off. Mrs. Arena testified that, aside from asking her to accompany Jackson to "apply for a job," Mary Ruggiero said nothing else. She also testified that the Union had directed her and Antoinette to wear the large union buttons and she also admitted that she does not normally wear such a union button in applying for a job. She also admitted that she would have been unable to take the job at Respondent's premises unless Ann Jackson, who drove her to work, was also given a job. Public transportation was unsatisfactory. Arena admitted that the Union did not ask her or sug- gest that she seek other Jobs after she was turned down by Respondent. Antoinette Jackson Antoinette Jackson testified that in May 1975 she was not working for her employer in Copiague but did not specify that she was in layoff status. She testified that when she got to Respondent's premises she asked for Mae Toma- selli, having previously been told that she was the floorla- dy She corroborated Anna Arena that they were both wearing the large union buttons. She testified that she asked for a job as an operator and Mae Tomaselli told her that "we had no business being there, being we were union members." Antoinette Jackson replied that there was a sign outside advertising for operators. Mae Tomaselli then an- swered that there were no empty machines for her. And Antoinette Jackson stated: "I see some empty machines " Mae Tomaselli responded: "The women are out sick." An- toinette Jackson said. "I would be willing to work until the women came back." Mae Tomaselli responded: "No," she did not "give away other people's machines." Mrs. Jackson testified that, thereafter, when Reno Drogo arrived at the factory, he asked whether you "ladies are looking for job." Mrs. Jackson said that when she said that she was looking for a job, he said: "I have no jobs for you; G. A. DRESS CO., INC. you're nothing but union stoolies." 9 Mrs. Jackson said that she answered ; "Well, you have a sign outside advertising for operators." Drogo allegedly replied : "The sign has been up there for a long time and you are nothing but bums." Mrs. Jackson says that at that point Drogo told Tomaselli to dial "911," to call the police and to have them arrested. Mrs. Jackson states at that point she stated : "Well, I guess you don't want to hire us" and they then left. Mrs. Jackson testified that she saw that the sewing ma- chines at that time did not have cotton in them which meant that they were not being used. When she called this to Mae Tomaselli's attention , Tomaselli told her that the women were out sick . When Mae Tomaselli made this re- ply, Mrs. Jackson testified that she did not demand that the machines be given to her but merely said that she would be willing to work there until the women came back. It was Jackson's recollection that she first received a tele- phone call from Mary Ruggiero to apply for the job at the Respondent's factory on May 8, 1975. She testified that she had previously worked for the Union by helping them or- ganize shop in the 2-year period prior to visiting Respondent's premises; that she had not been told by her employer when she would be going back to work and that, in fact, she might have been out of work for about a week before being recalled . She testified that both she and Mrs. Arena returned to work at the employer in Copiague at the same time. On cross-examination Mrs. Jackson testified that Mary Ruggiero instructed her to apply for a job at Respondent's place of business in order to see if Respondent was dis- criminating by not hiring union members. She testified that the Union paid her when she was organizing shops for them but did not pay her for attempting to organize Respondent's shop. Rose DiFiore remembers the incident. She testified that during the lunch hour the two applicants spoke with Mae Tomaselli near her machine and she overheard the conver- sation She testified that the two of them asked for Jobs and Mae Tomaselli said that she had no machines and in- quired : "You are union girls, what are you doing here?" She also testified that she heard reference from the appli- cants to the "empty machines " and Mae Tomaselli saying that the "girls are out sick ." She also recalls the applicants, Arena and Jackson , stating that they were "willing to work there until they come back ." She also recalls Mae Tomasel- li turning to her and saying- "Why don't you tell your friends there are no empty machines ?" Mrs. DiFiore an- swered : "How do you know that they are my friends." At this point Respondent's sewing machine operators shouted to the applicants that the empty machines were "taken." Uana (Joanna) Gaglias, a sewing machine operator who worked for Reno Drogo on and off for about 15 years, but, since June 1975, no longer employed by Respondent, testi- fied that the two applicants came into the shop about noon but that her back was to the door when they entered. Her machine was opposite that of Mae Tomaselli's and there was a pile of garments between them When Gaglias turned around she saw the two applicants and heard them say, 9 Such a statement, if made, does not interfere with Sec 7 rights Herbert E Orr Co , Inc, 185 NLRB 1002, 1008 (1970) 67 "We are looking for a job." She saw them wearing the union buttons and heard the announcement that they were looking for a job which was made to the entire assembled group of sewing machine operators . She saw them walk over to Mae Tomaselli. Tomaselli said that there was "no opening here." One of the women said , according to Gagli- as. "Well, we know we were told that there are machines available." One of them stated that the machine next to DiFiore was open . Tomaselli responded that the employee was out sick but would be back but the applicants said that they knew that there were "openings" and they wanted to work. At this point, according to the witness, the applicants were yelling very loudly that they wanted to work, stating that they knew that there was a job opening. She stated that she heard them say: "You don't want to give us work because there is a union." They said they wanted to see the boss. Gaglias told Mae Tomaselli that, if the applicants were going to wait for the boss, they should wait in a differ- ent section of the factory. The applicants said that that was all right and then began talking with Rose DiFiore . Gaglias recalled that one of the applicants asked Rose DiFiore if they were treating her "O.K." About 15 or 20 minutes later , she said Reno Drogo ar- rived and told the applicants that there wasn't any work available. When they referred to the sign in the window, which sign spoke of operators being "wanted," they contin- ued to insist that the only reason Drogo wouldn't give them a job was because of the Union. Drogo asked them to leave. When they refused to leave, Drogo asked the witness to call the police and the applicants left. Mildred Morgret, an employee of Respondent for about 7 years, a witness whom I regarded as more stra ightfor- ward, credible, less antagonistic to DiFiore than the others, and certainly less emotional, testified that the first thing she heard was a loud voice just before noon. She testified that she heard someone say that the two women were look- ing for a job. She testified that she saw them talking to Rose DiFiore, while they were standing by her machine. They were talking about getting a job and Morgret told Rose DiFiore that there were no machines and that there was no work for them . Rose DiFiore told her that it was none of her business and that she should shut up. The witness testified that she continued to work. Jeanine Evangelista, an employee of Respondent for about 7 years, a machine operator, testified that about 10 minutes before noon , two ladies wearing buttons told To- maselli • "Since you have empty machines, we want work." Tomaselli answered : "I have no empty machines." One of the ladies said . "What you mean? There are empty ma- chines there." Mae Tomaselli said that the women who sat at the empty machines were out sick but the two applicants turned around and said "No, you are not giving us the job because we are union members." Mae Tomaselli denied this. When Evangelista corroborated Tomaselli's state- ment, that the sick employees were coming back and To- maselli was holding the machines for them , Evangelista tes- tified that the two applicants turned to her and said: "Who asked you talk? Who told you to say anything?" The wit- ness answered : "I am expressing my opinion and that is all." Evangelista testified that an argument followed be- tween Mae Tomaselli and the applicants where the appli- 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cants stated that they were not given jobs because they were union members and Mae Tomaselli was denying this by insisting that the empty machines had employees allot- ted to them but the employees were out sick. Mae Tomaselli remembers the incident in a slightly dif- ferent way. She recalls that the two "union ladies" came into the sewing machine operators' room rather than going into a small office which is adjacent to the storeway en- trance. Mae Tomaselli asked them what they wanted and told them that they were not supposed to be there. She told them that anyone that comes to see her is supposed to stay in the other room or the office; but they were not supposed to come into the shop. Tomaselli places this immediately before lunchtime while the girls were still working. Mrs. Tomaselli recalls that the applicants said that a friend of theirs had told them that there was an opening. Mrs. To- maselli denied the existence of an opening. She testified that the two applicants pointed to two empty machines and that Mrs. Tomaselli said that the machines were "taken" and that the girls were out sick. She testified that the appli- cants insisted that they wanted the two machines When the applicants insisted on the fact that there was work there and Mrs. Tomaselli denied the existence of a vacancy, Mrs. Tomaselli said that they were causing a disturbance and that she was going to call the boss and let him handle it. She said that while waiting for Reno Drogo, there was an argument between the Company's sewing machine opera- tors and the two women who had come there looking for work. Mrs. Tomaselli testified that she had heard some of the sewing machine operators tell the two ladies that they (the sewing machine operators) didn't want any part of the Union because the Respondent's operators were elderly people and the Union wouldn't do them any good. In par- ticular, Mrs. Tomaselli denies that she ever told the two applicants that she wouldn't employ them because they were in the Union. Mrs. Tomaselli also did not recall whether the applicants wearing the union buttons ever told her that she was not employing them because they were union members. Nazareno Drogo testified that the sign affixed to the out- side premises of the Respondent's factory ("Operators Wanted, G. A. Dress Co.") had been there since 1968. In June 1975, subsequent to the above occurrences, he paint- ed out the words "Operators Wanted." Drogo testified that in the period May 1 through June 2, G. A. Dress had not employed any new sewing machine operators; that the last new operator hired was Joanna Gaglias in April 1975; and that after DiFiore left on June 2, 1975, she was not replaced. Drogo recalls a telephone call from Mae Tomaselli about 11:45 a.m. relating to two girls applying for a job who had refused to leave. Drogo went to the shop about 12:15 and saw two women wearing buttons. Drogo asked them what they wanted and they told him they were looking for jobs When he told them that there were no openings they pointed to two empty machines and Drogo told them that the operators were sick. Drogo asked them to leave and when they refused he asked Mae Tomaselli to call the police whereupon the ap- plicants left. It may well be that if Anna Arena and Antoinette Jack- son are applicants for employment, they are accorded the protection of the Act (Goodwater Nursing Home, Inc., 222 NLRB 148 (1976) ), and may not be discriminated against because they engaged in protected concerted activity. The question of whether a job opening exists does not affect their protection and is essentially a matter for compliance proceedings. Goodwater Nursing Home, Inc, supra, fn. 12 of Administrative Law Judge Stone's Decision adopted by the Board. I conclude that, as firm union adherents, the Union re- cruited them to "test" Respondent. DiFiore did not testify that she told them of any "openings" and the record is barren of proof on this point. Arena and Jackson believed they would shortly return to their employment and I reject their testimony that they would take work until the sick employees returned. While I do not doubt that they told this to Tomaselli, I do not credit their testimony. Rather, I conclude that Arena and Jackson said that they were look- ing for work and, following the exchange with Tomaselli regarding the empty machines, stated that they were being refused work because they were members of the Union. Their union buttons announced their allegiance. I do not believe that 2 days after the union organizing campaign started, and in spite of Drogo's and Tomaselli's antago- nism to and animus regarding the Union-and DiFiore- they would loudly announce that they refused to hire the applicants because of their union membership or sympa- thies. The matter is one of credibility. I conclude that the testimony of Respondent's witnesses and General Counsel's witnesses on this point was filled with passion and rancor. I thus have attempted to weigh the probabili- ties of the testimony and the reasonable sequence. In addition, I have some doubt that Arena and Jackson are "applicants" who are protected as "employees" under the Act. See also N.L.R B. v. Elias Brothers Restaurants, Inc, 496 F.2d 1165 (C.A. 6, 1974), enfg. 204 NLRB 686; Phelps Dodge Corp. v. N L.R B, 313 U.S. 177 (1941). A status of "applicant" presupposes a reasonable bona fides in seeking work. Here, Arena and Jackson were mere agents provocateurs This status of provocateur, it seems to me, ought to be distinguished from an employee who may be both a provocateur and is actually performing unit work. But cf. Holbrook Knitwear, Inc., 169 NLRB 768, In. 1 (1968), where the Board's dictum indicates otherwise. At any rate I do not rely on this position in crediting Respondent's version and rejecting the testimony of Di- Fiore, Arena, and Jackson.10 The Events of May 13, 1975 Union Organizer Barbara Laufman testified that about 7 a.m., May 13, 1975, 30 to 40 union pickets picketed Respondent's premises. The only employee of Respondent who picketed was Rose DiFiore. Two types of union signs were carried, both of them 3- by 2-foot white cardboard 10 Since, as noted , infra, DiFiore was reporting on a daily basis to Union Organizer Laufman concerning events in the factory, and since Respondent's union animus was manifest, Union Agent Ruggiero's direc- tion to Arena and Jackson (to see if Respondent was "discriminating against hiring Union members") reinforces the conclusion that it was the applicants , rather than Tomaselli, who advanced an unlawful motive for the unwillingness to hire them G. A. DRESS CO., INC. signs. The testimony of Union Organizer Laufman was that during the picketing Reno Drogo arrived in his car, got out on the opposite side of the street, and observed the picketing from the other side of the street for about 10 or 15 minutes. Reno Drogo then entered the shop. The picket- ing lasted from about 7 to 8.30 a.m. and Rose DiFiore went up into the shop to work about 5 minutes before 8. Mrs. Laufman testified that she saw Rose DiFiore go up the stairs, get to the top step and find that three people were standing in the doorway and blocking her entrance into the factory. She testified that she heard Rose DiFiore say: "Well, you going to let me in or not?" Mrs. Laufman recognized two of the three persons blocking DiFiore's in- gress: one was Mae Tomaselli and the other was employee Rose Lopez. After about 10 or 15 seconds, Rose DiFiore again repeated "Well, are you going to let me in?" At this point, Mrs. Laufman testified that Rose DiFiore physically pushed forward and entered the shop. Rose DiFiore remembers the incident at the door slight- ly differently She said that Mae Tomaselli, Rose Lopez, and Jeanine Evangelista (Rose Lopez' sister) were standing in the doorway and she said: "Excuse me, I want to get in, you know, please I have to go to work let me go to work." Rose DiFiore, on direct examination, said she pushed her way in. On cross-examination, however, Rose DiFiore ad- mitted that there was no touching involved as she went through the doorway. She testified that she spent 4 or 5 seconds standing there outside. Rose Lopez testified that after she got past the pickets and upstairs, she put her pocketbook down and went to the door to look down because she had never seen a picket line 11 and was merely curious. She testified that three of them were standing in the door as Rose DiFiore came up, dust looking and ". . may be answering back to their (the pickets') remarks." DiFiore mounted the steps and said to Rose Lopez, "What are you looking at? You are looking at me like I am animal." Rose Lopez said: "If that is what you are saying, then what can I say?" At this point, accord- ing to Rose Lopez, she stepped aside and let Rose DiFiore in. Rose Lopez denied that either she or anyone else at- tempted to prevent DiFiore's entrance. She also denied that DiFiore was delayed in entering while they were pre- sent in the doorway. Mae Tomaselli denied being in the doorway. She denies at anytime that morning preventing Mrs. DiFiore from coming into the shop or blocking her way. She does not recall exactly where she was in the doorway and denies that she had a conversation with Rose DiFiore Jeanine Evangelista, Rose Lopez' sister, testified that the three ladies were standing in the door watching the picket- ing. She testified that DiFiore simply walked in and had a brief exchange of conversation with Rose Lopez, in which DiFiore said: "What are you locking at? You are looking at me like I am animal." The witness heard her sister say: "You said it, not I." She denied anybody tried to stop Mrs. DiFiore from coming into the plant and she denied that she tried to stop DiFiore. She testified that they all were standing in the front leading into the doorway; that she 11 At this late date, I cannot credit that she had never seen a picket line 69 and her sister were about 1 foot inside the doorway; and that she and her sister stepped aside. She testified that she did not recall whether Rose DiFiore said: "Get out of my way, you are blocking my way" or anything similar to that. Mrs. Evangelista also stated that Mae Tomaselli was not there and was going back and forth preparing work for the girls. I conclude on the basis of all the testimony relating to this incident that, assuming, arguendo, Tomaselli, Lopez, and Evangelista did stand in the doorway, and did stand in the doorway for several seconds facing Rose DiFiore, the evidence fails to show that they stood there for the purpose of blocking her ingress into the plant. Rather, I credit them that they were watching the pickets and that they stood in front of Rose DiFiore but permitted her to enter upon her request. DiFiore's testimony indicates only that the door was crowded, not that there was intentional blocking. In this regard, DiFiore's direct testimony, implying that she pushed her way through, was altered on cross-examination to show no physical touching. I do not credit DiFiore or Laufman insofar as they testified that DiFiore pushed her way in. In short, I do not find that they intentionally blocked her ingress. I therefore conclude that, contrary to paragraph 10(d) of the complaint, as amended, there was no harassment in that Mae Tomaselli attempted to deny Rose DiFiore access into the employer's premises during worktime because of DiFiore's activities on behalf of the Union. I shall therefore recommend that paragraph 10(d) of the complaint be dismissed because of insufficient proof therefor. Rather, I conclude that what actually happened in the confrontation was that the employees indeed were watching the pickets from the doorway and that Rose Di- Fiore, somewhat self-consciously, believed that the em- ployees were staring at her and singling her out. When they stood in the doorway momentarily, she told them that she wanted to go to work and they should get out of the way. When they did not immediately give way, this brought forth Rose DiFiore's question of Rose Lopez regarding whether Rose Lopez was looking at her like "an animal." The incident, above, is based on a resolution of conflict- ing hostile testimony. I do not accept the testimony of Respondent's employees who testified on Respondent's be- half against the interest of the Charging Party and Rose DiFtore at face value. With the possible exception of Mil- dred Morgret, I found the testimony of Rose Lopez, Uana Gaglias,'2 and Jeanine Evangelista to be openly biased and their attitude vindictive both against the Charging Party and Rose DiFiore. Similarly I do not credit Mae Tomaselli in her statement that she was not even in the doorway. I was impressed with the ill-concealed belligerence of the employee-witnesses on behalf of the Respondent, including Rose Lopez' testimony that, when Rose DiFiore handed her the union card, she ripped it up. On the other hand, I am unable to credit the testimony of Union Organizer Barbara Laufman who testified that, while standing below the staircase leading up the entrance to the factory, she overheard the complete conversation between Rose Di- Fiore and the employees, including Mae Tomaselli, who 12 DiFiore and Gaghas came close to a physical confrontation over an incident involving Gaglias breaking DiFlore's "thread" on her sewing ma- chine during this period 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were allegedly blocking the way of Rose DiFiore into the factory. I also conclude that DiFiore exaggerated the time and effort necessary to gain entrance D. The Constructive Discharge of DiFiore on June 2, 1975 Rose DiFiore testified that, subsequent to the picketing on May 13, she noticed that the employees were shying away from her and would minimize conversations with her on the coffeebreaks , smoking breaks , and at other times. She testified that fellow employees would answer her short- ly if she addressed them but would not continue the con- versation with her. DtFiore testified that on a daily basis, commencing May 7, 1975, she reported the happenings in the factory to Union Agent Barbara Laufman. Commencing on and after May 13, 1975, she told Laufman that the working condi- tions in the shop were bad, that the employees were not talking to her and she couldn't take it much longer. Prior to June 1, 1975, Laufman told her to quit if things got too bad. On or about June 1, 1975, Laufman told her to quit, go on unemployment, and the Union would take the posi- tion that she had been constructively discharged. On June 2, 1975, at 10.30 a.m., Rose DiFiore testified that she took her workbook over to Mae Tomaselli and said: "I'm fed up, I'm fed up-these girls were told not to talk to me " Tomaselli denied this. She then submitted her production book 13 to Tomaselli who asked her what she wanted her to do with the book. At that point Mae Toma- selli entered the production figures of DiFiore's production and returned the book. Rose DiFiore left and never re- turned to work. The instant charges were thereafter filed and resulted in this proceeding. Paragraph I 1 of the complaint, as amended, alleges that on or about June 2, 1975, Respondent discharged its em- ployee Rose DiFiore. Paragraph 10(a) alleges that Respon- dent caused employees to not speak to DiFiore and to iso- late her The General Counsel alleges, and the case over Respondent's objection, was tried on the theory that the word "discharge" in the complaint carried within it the concept of a "constructive discharge." It is uncontested and Respondent admits that since June 2, 1975, Respon- dent has never offered to reinstate Rose DiFiore to any position. The record shows that Rose DiFiore has never asked for reinstatement and has never returned to the shop. The Charging Party and General Counsel take the position that in view of all of the violations of Section 8(a)(1) by Respondent, including urging her to quit and causing the employees to harass and ostracize her, this amounts to a constructive discharge. However, I find that Respondent's treatment of DiFiore, insofar as it included conduct viola- tive of Section 8(a)(1) of the Act by threats, interrogation, and even urging her to quit and the employees to speak up against DiFiore and in spite of occasional employer-con- doned yelling by employees-all directed at DiFiore-is comparable to the situation only of that in which the employer's unfair labor practices are designed to thwart the employee's union activities while retaining her as an employee. In such circumstances, an employee is not enti- tled to abandon employment promptly upon the commis- sion of such unfair labor practices and claim the benefits of a constructive discharge. J. W Mays, Inc., 147 NLRB 942- 943, 944 (1964), enfd. as modified 356 F.2d 693 (C.A. 2, 1966). Open solicitation of resignation for discriminatory reasons is not dispositive, Caddell-Burns Mfg. Co., Inc., 222 NLRB 488 (1976). Quite apart from the question of any repeated violations of Section 8(a)(1) directed toward DiFiore , there stands the question of Respondent being ostracized by coemployees. I will assume , arguendo, that any such ostracism , unlawfully initiated or condoned by the employer, would be such a change in a condition of employment that it would consti- tute a "constructive discharge" if the employee "quit" as a result thereof. In fact, however, there is no evidence that the Respon- dent, or any of its agents, ever directed or suggested to any of the employees herein to ostracize or give the "silent treatment" to Rose DiFiore Moreover, the evidence shows that even if, contrary to my finding, the Respondent and its agents urged DiFiore's coemployees to shun and ostracize DiFiore, the direction of Respondent was not carried out. According to Rose DiFiore's testimony on cross-examina- tion, there were employees in the plant who indeed would speak to her, contrary to any such instruction or direction. DiFiore, testified, in addition, that she did not bother to pursue those employees who admittedly did speak to her because she was either busy with work or else decided to go out alone on smoking breaks. Thus, on the facts, any such directions to ostracize Rose DiFiore were unsuccessful and I so find. Lastly, and dispositively, there is the fact that the cessa- tion of employment by DiFiore was precipitated not by any action, on this record, initiated, condoned, or imple- mented by the Respondent but rather, according to Rose DiFiore's own testimony, was caused by Barbara Lauf- man, perhaps unwittingly. For it was Barbara Laufinan who, upon learning of DiFiore's dissatisfaction with her employment conditions at the factory, including the hostil- ity of coemployees, on more than one occasion suggested to her a way out, to quit, walk off the job, register for unemployment, and have the Union argue that there was a constructive discharge. It was this suggestion by Laufman, made on or about June 1, the day before Rose DiFiore walked off thejob, that offered to DiFiore a route carrying the Union's imprimatur, a way of escaping her difficulties in the factory. While the conditions of DiFiore's employment may not have been ideal, with some hostile coemployees reflecting, in part, Respondent's animus, up to the suggestion made by Union Organizer Barbara Laufman to quit, I find that the working conditions were at least bearable, and it was the suggestion of Barbara Laufman that caused Rose Di- Fiore to leave her employment rather than any preexisting conditions of which Respondent was the source 14 Thus, under all the circumstances, I do not find that 13 The sewing machine operators enter their production in their work- books and periodically report these figures to Floorlady Tomaselli who re- 14 Were other factors present, Laufman's suggestion might have been le- cords the production which is the basis for piece-work payment gally supportable G. A. DRESS CO., INC 71 there was a "constructive discharge" of Rose DiFiore either because of the violations of Section 8(a)(1) by the Respondent or because Respondent changed DiFiore's conditions of employment through instigating her ostra- cism . Rather, I find that Rose DiFiore quit. Whether the employees were ostracizing her or whether Rose DiFiore failed to pursue those avenues of social interchange which existed is unimportant to this determination . Thus I find a failure of proof to show such an employer-sponsored change in the terms and conditions of Rose DiFiore's em- ployment as to prove a "constructive discharge " within the meaning of Section 8(a)(3) and ( 1) of the National Labor Relations Act, as amended . I therefore recommend that insofar as the complaint alleges such a constructive dis- charge, it be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth above , occur- ring in conjunction with the operations of Respondent, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record of this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening that Respondent would close its facto- ry, by threatening that it would discontinue its policy of permitting its employees to work part time and would cause them to work hours identical to other employees; by interrogating its employees ; by urging its employees to quit ; and by encouraging its employees to urge certain of its employees to quit, all because certain of its employees joined or assisted Local 107, ILGWU, AFL-CIO, a labor organization, Respondent interfered with, restrained, and coerced its employees and violated Section 8 (a)(1) of the Act. 4. General Counsel failed to prove, by a preponderance of the credible evidence, that Respondent refused to con- sider Anna Arena and Antoinette Jackson for employment because of unlawful considerations or because of their sup- port for the Union. 5. General Counsel failed to prove, by a preponderance of the credible evidence , that Respondent caused the con- structive discharge of Rose DiFiore. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. Upon the above findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended- ORDER 15 Respondent, G. A. Dress Co., Inc., Port Jefferson, Long Island, New York, its officers, agents, successors, and as- signs, shall- 1. Cease and desist from: (a) Threatening to close its plant if Local 107, ILGWU, AFL-CIO, herein called the Union, or any other labor or- ganization becomes the bargaining representative of its em- ployees; interrogating its employees concerning their inter- est in or sympathy for the Union or in any other protected concerted activity ; urging any employee to quit because of engaging in any protected concerted activity; encouraging its employees to urge any of its employees to quit because of said employees engaging in protected concerted activity, and threatening to discontinue its policy of permitting part-time work, or imposing more stringent work rules be- cause of said activity. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act- (a) Post at its factory in Port Jefferson , Long Island, New York, copies of the attached notice marked "Appen- dix." 16 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that notices are not altered, defaced , or covered by any other material. (b) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 15 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 16 In the event that the Board 's Order is enforced by a Judgment of a United States court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read " Posted Pursuant to a Judgment of a United States Court of Appeals Enforcing an Order of the National Labor Relations Board "