Oak Apparel, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 701 (N.L.R.B. 1975)

OAK APPAREL, INC.
Oak Apparel, Inc. and Local 107, International
Ladies' Garment Workers' Union, AFL-CIO.
Case 29-CA-3787
June 19, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENQNEDY, AND
PENELLO
On September 24, 1974, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, the General Counsel, the
Respondent, and the Charging Party filed exceptions
and supporting briefs.' The General Counsel and the
Charging Party also filed answering briefs to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order, except as
modified below.
Contrary to our dissenting colleague, the issue of
whether Mary Calligaris and Antoinette Jackson are
entitled to the protection of the Act is not whether
they sought, with respect to Respondent, "an
employment relationship of a permanent nature." In
recognition of the broad definition of "employee" in
Section 2(3) of the Act the Board consistently has
held at least since 1947 that unlawful discrimination
includes discrimination against members of the
working class generally.2 Members of the
"employee" class have been held entitled to the Act's
protection whether the interference with their rights
has come from employers or from unions.3
Our colleague's unique, restrictive reading of
Section 2(3) would withhold from the discriminatees
here, who had worked for Respondent for about 2
months when they were discharged, the status and
protection to which job applicants, even prospective
applicants, are entitled.4
The Board's discussion , in Dee Knitting Mills, Inc.,
supra, regarding the employee status of a union
organizer who seeks employment solely to organize
r The Respondent's request to file a supplemental brief in view Of the
recent issuance of Dee Knitting Mills, Inc., Dtppy Knits, Inc and Three D
Knitting Mills, Inc., 214 NLRB No. 138 (1974), is denied. The Board takes
official notice of its own decisions.
2 Briggs Manufacturing Company, 75 NLRB 569 (1947). In Briggs, the
discrimination was held unlawful under the predecessor to Sec. 8(a)(4), then
as now prohibiting discrimination "against an employee because he has
filed charges or given testimony under the Act." Sec. 8(a)(3), which we find
Respondent to have violated in the instant case, is not by its terms limited to
218 NLRB No. 120
701
the employer's other employees, is not in point. At
issue there was whether the organizer should have
been excluded from the bargaining unit because she
was a temporary employee. The distinction between
an employee's status with respect to the appropriate
bargaining unit and his or her status as an
"employee" within the meaning of Section 2(3) has
been recognized since the infancy of the administra-
tion of the Act .5 Were this distinction forgotten, one
result would be that employers could discriminate
with impunity against temporary or casual employ-
ees who are not includable in any bargaining unit of
the employers' other employees. Such a result would
indeed be a sharp departure from our decided cases.6
We will not start down that path. We affirm the
Administrative Law Judge's fording that "Calligaris
and Jackson are employees."'
The Administrative Law Judge found that no
violation of Section 8(a)(1) resulted from the Respon-
dent's action in prohibiting employees Calligaris and
Jackson from distributing union literature to fellow
employees during their nonworking time. The distri-
bution in question was made on March 19; 1974, by
placing the leaflets on machines in the plant's
production area during the employees' regular 45-
minute lunch period. No designated area was
provided where Respondent's employees were re-
quired to eat lunch. As a result some employees ate
outside the plant, some ate at their machines, and
some employees (paid on a piece rate basis) contin-
ued to work at their machines during the lunch
period. Respondent had no announced rule pertain-
ing to the distribution of union literature in its plant,
but did permit charitable sales and collections.
Two of Respondent's supervisors, Giordano and
Ferranti, prohibited the distribution of the leaflets
and the latter actually collected them from Respon-
dent's machines and returned them to Calligaris,
while informing both her and Jackson that while they
could not distribute literature in the plant they could
give the leaflets to employees "on the outside."
In our view the conduct of Respondent's supervi-
sors in prohibiting the distribution of union literature
to any of Respondent's employees during their lunch
period violated Section 8(axl) of the Act. It is
sufficiently clear from the present record that the
work area was being used principally as a lunchroom
discrimination against employees . It is limited in its application, of course,
to discrimination affecting employees having rights guaranteed by Sec. 7.
Accurate Threaded Products Company, 90 NLRB 1364 ( 1950).
3 Briggs Manufacturing Company, supra, Woos( Wire and Metal Lathers'
International Union, Local No. 238, 156 NLRB 997 (1966).
4 See Sam Tanksley Trucking Inc., 198 NLRB 312 (1972).
5 Phelps Dodge Corporation v. N.LRB., 313 U.S.177,177,192 (1941).
6 Eg., Nelson Mamfacturing Company, 138 NLRB 883, 884 (1962);
Universal Insulation Corporation, 149 NLRB 1397 (1964).
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time that the distribution of union literature
was attempted.? It is equally clear that,the prohib-
ition announced and enforced by Respondent's
supervisors was unlawfully broad in that it restricted
employees' organizational rights during their non-
work time in a nonwork area of the plant.8 Such a
prohibition against the distribution of union litera-
ture unreasonably interfered with the employees'
right to self-organization. Respondent has made no
showing of special circumstances which justified the
prohibition of distribution at a time when work was
not in progress during the lunch period. On the
contrary it appears to have been discriminatory in
light of Respondent's permissiveness with regard to
charitable sales . Accordingly, we shall include in the
Order issued herein a requirement that Respondent
cease and desist from thus interfering with the
Section 7 rights of its employees.
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 Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Oak Apparel, Inc., Copiague, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified.
1. Add the following as paragraph l (c) of the
recommended Order:
"(c) Promulgating, maintaining, enforcing, or
applying any rule or regulation prohibiting employ-
ees during their nonworking times from distributing
union literature in nonworking areas of its property."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER KENNEDY, dissenting:
In my view, Mary Calligaris and Antoinette
Jackson were paid professional organizers employed
by the Union and were not employees of the
Respondent entitled to the protection of the Act.
Calligaris was employed as an organizer by the
International Ladies' Garment Workers' Union.
That labor organization paid her a salary plus
expenses . ILGWU regularly designated her to
engage in organizational activities for its various
local unions which, in turn, assigned her to organize
selected plants. Calligaris turned over the wages she
was paid on these jobs to the Union as well as all
7 Calligaris testified first that union leaflets were distributed to all
employees, but at a later point that leaflets were not given to any employees
who were working . In any event there is no evidence that leaflets were
distributed to -any employees who were working , and Respondent's
prohibition was not limited to such distribution.
backpay she received from any unfair labor practice
proceedings before this Board.
Jackson ordinarily worked at union plants, but
when told to do so by the Union, she obtained
positions at unorganized plants, such as the Respon-
dent's plant. Her wages in the unorganized plants
were supplemented by ILGWU to raise her earnings
up to her average wage rate in unionized plants. She
was also reimbursed by the Union for her organizing
expenses. Like Calligaris, she turned over any
backpay from Board proceedings involving her to the
Union.
Jackson frankly admitted at the hearing that she
had lied in an affidavit given in a prior proceeding
before this Board, Dee Knitting Mills, 214 NLRB No.
138 (1974), wherein she stated, "When I started
working at Dee, I did not know if there was a union,"
when in reality the Charging Party had assigned her
to that plant to determine employee interest in
unionization.
Clearly, Jackson and Calligaris obtained employ-
ment with Respondent solely in order to organize
Respondent's employees. These two employees of the
Union never intended to remain employees of
Respondent for any length of time beyond that
required to complete their organizational activities.
They were not seeking an employment relationship
of a permanent nature.9
In my view, the Union controlled their employ-
ment through the device of compensation and
expense reimbursement arrangements , as well as a
plan for obtaining backpay awards from the employ-
ees after the completion of unfair labor practice
proceedings conducted by the Board. Additionally,
the Union directed the organizational efforts of both
employees at selected plants at times thought likely
to be most fruitful to the Union for such activity. I
find no basis for determining that an employment
relationship with Respondent was formed under such
circumstances , for the tenure of the employment of
both Calligaris and Jackson depended on employee
sentiment toward union representation and the
practicability of an organizational effort -tenuous
factors disclosing no intention of securing permanent
employment as such. In my opinion, the Union's
direction of the employees' "employment" efforts
with regard- to such important elements as time,
place, and duration gives clear evidence of the fact
that Calligaris and Jackson were in reality employed
by the Union and not by Respondent.10
8 Rockingham Sleepwear , Inc., 188 NLRB 698, 701 (1971).
9 Dee Knitting Mills, Inc., supra. Sears, Roebuck and Co., 170 NLRB 533,
535, fn . 3 (1968).
10 Further, I cannot accept the conclusions of the Administrative Law
Judge on the merits to the extent that they rest on the testimony of Jackson
OAK APPAREL, INC. 703
Accordingly, I would dismiss the complaint in its
entirety.
who has under oath in this proceeding explicitly admitted that she gave false
testimony in prior Board proceedings . I would also find, if I were to reach
the question, that the evidence is insufficient to show that Calligaris and
Jackson were discharged for their union activities rather than for causing
the disruption of work.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
about union membership or activities, or in any
other manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed
in Section 7 of the National Labor Relations Act.
WE WILL NOT promulgate, maintain, enforce, or
apply any rule or regulation prohibiting our
employees during their nonworking time from
distributing union literature in nonworking areas
of our plant.
WE WILL NOT discharge or otherwise discrimi-
nate against Mary Calligaris, Antoinette Jackson,
or any other employees in regard to their hire or
tenure of employment in order to discourage
membership in or activities on behalf of Local
107, International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organiza-
tion.
WE wiu. offer Mary Calligaris and Antoinette
Jackson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges.
WE WILL make Mary Calligaris and Antoinette
Jackson whole for any loss of pay each of them
may have suffered as a result of the discrimina-
tion against her.
OAK APPAREL, INC.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER , Administrative Law Judge:
Upon a charge and an amended charge filed respectively
on March 29 and April 10, 1974, by Local 107 , Internation-
al Ladies' Garment Workers' Union, AFL-CIO, referred
to herein as the Charging Party or the Union, the General
1 All dates hereinafter refer to 1974 unless otherwise indicated.
2 The name of the Respondent appears as amended at the hearing.
3 A prehearing conference was held at Brooklyn, New York, on May 20,
1974, before Administrative Law Judge Charles W. Schneider. The
Counsel, by the Regional Director for Region 29
(Brooklyn, New York), issued a complaint, notice of
prehearing conference, and notice of hearing dated May 3,
1974.1 The complaint alleges in substance that Oak
Apparel, Inc.,2 herein called the Respondent, interrogated
employees concerning union activities, prohibited employ-
ees from distributing union literature on their nonworking
time, and discharged two employees because they joined
and assisted the Union, and thereby `engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
National Labor Relations Act. The Respondent, in its
answer duly filed, admits some of the factual allegations of
the complaint, but denies the commission of the alleged
unfair labor practices.
Pursuant to notice, a hearing was held before me at
Brooklyn, New York, on June 25, 26, and 27, and July 23 3
All parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. During the
second day of the hearing, the Respondent was permitted,
over the Charging Party's objection, to amend its answer to
assert, as an affirmative defense, that the Charging Party
and the two dischargees should be denied any relief from
the Board because they were in violation of Federal law. At
the close of the hearing, the General Counsel and the
Respondent presented closing argument. Subsequent to the
hearing, on or about September 6, the General Counsel
and the Charging Party filed briefs, and the Respondent
filed proposed findings of fact and conclusions of law.4
Upon the entire record in this proceeding and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has
been, a corporation duly organized under, and existing by
virtue of, the laws of the State of New York. The
Respondent maintains its principal office and place of
business in the town of Copiague, county of Suffolk and
State of New York, where it is engaged in the business of
apparel manufacture. Since the commencement of its
business operations on or about November 1, 1973, until
the prehearing conference on May 20, 1974, the Respon-
dent, in the course and conduct of its business, manufac-
tured and sold apparel valued at over $50,000, of which
apparel valued at over $50,000 was shipped to points
outside the State of New York. The complaint alleges, the
Respondent in its answer admits, and I find that the
Respondent is, and at all times material herein has been,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find that Local 107, International Ladies'
transcript thereof was placed in evidence at the instant hearing as an exhibit
of the General Counsel.
A The document filed by the Respondent, while pertaining to the issues
herein, is incorrectly captioned with reference to "Case No. 29--C-S-1860."
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garment Workers' Union, AFL-CIO, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The Principal Issues
It is alleged in the complaint that Anthony Vitrano,
Gene Vitrano, Vito Vitrano, and Susan Giordano are, and
at all times material herein have been, agents of the
Respondent and supervisors within the meaning of Section
2(11) of the Act. At the prehearing conference, the General
Counsel amended this allegation to add the name of Nancy
Ferranti, and the Respondent admitted this allegation as to
Anthony and Gene Vitrano, but denied it as to Vito
Vitrano, Giordano, and Ferranti. During the second day of
the hearing, however, the parties stipulated to the supervi-
sory status of Giordano and Ferranti. The two dischargees,
Mary Calligaris and Antoinette Jackson, testified as
witnesses for the General Counsel: The General Counsel
contends that the Respondent, by named agents and
supervisors, interrogated Jackson about union activities,
prohibited Calligaris and Jackson from distributing union
literature on their nonworking time, and discriminatorily
terminated Calligaris and Jackson because of their organiz-
ing activities.
The Respondent maintains that the complaint should be
dismissed on the grounds that: (1) Calligaris and Jackson
were professional organizers sent by the Union to work at
the Respondent's plant, and at plants of other employers,
in order to determine employee interest in organization,
remained at these jobs for brief periods until directed by
the Union to go elsewhere, and in these circumstances were
not employees within the meaning of Section 2(3) of the
Act; (2) their organizing activities caused a commotion in
the Respondent's plant during working hours because of
the antiunion employees' opposition to their activities, and
they were the only ones discharged because they were the
cause of the commotion and because, in order to avoid
further disruption of production, it was necessary to
discharge these two or the approximately 50 antiunion
employees; (3) Calligaris and Jackson instigated their
discharge by the Respondent, as they had done at other
plants, and have been awarded reinstatement and backpay
in a series of Board proceedings, conduct which constitutes
a subversion of Board processes; (4) Calligaris and Jackson
as well as the Union have violated various Federal laws,
and should on this ground be denied the right to any
remedy under the Act; (5) the interrogation of Jackson was
not violative of the Act as she was not an employee of the
Respondent ; (6) the rule against solicitation was valid as it
applied to working areas only; and (7) the testimony of
Calligaris and Jackson should be discredited in its entirety
on the basis that the Respondent's cross-examination
showed them to be unworthy of belief. The Respondent
called, as its only witness, Catherine Pastore an employee
of the,Respondent.
The principal issues are whether Calligaris and Jackson
were employees of the Respondent while working for the
Respondent ; if they were, whether the evidence shows that
the Respondent interrogated them, prohibited their distri-
bution of union literature, and/or -terminated them, in
violation of Section 8(a)(1) and (3) of the Act; and, if so,
whether a remedial order should be issued in the
circumstances of this case.
B. The Employment of Calligaris and Jackson
Calligaris was employed as an organizer by the Charging
Party's parent organization, herein referred to as the
International, which paid her a salary plus certain
expenses, and assigned her from time to time to engage in
organizing activities for a particular local. At the time of
the events here in issue, she was assigned to the Charging
Party, which sent her to unorganized plants to get a job
and to determine, while working there, whether the
employees were interested in unionization. She turned over
to the local to which she was assigned the wages she was
paid on these jobs, as well as backpay she received as a
result of Board proceedings. Jackson was - employed
generally at union plants but, when directed by the
Charging Party, sought jobs at unorganized plants to
determine employee interest there in unionization. The
Charging Party supplemented her wage rate on these jobs
to bring her earnings up to her average rate when
employed in a union plant, and also reimbursed her for
certain organizing expenses. Like Calligaris, she has turned
over to the Charging Party backpay payments she received
as a result of Board proceedings. Calligaris and Jackson
stayed for varying periods on these jobs, sometimes only a
few days, before they left or were terminated.
Calligaris applied for a job with the Respondent, at the
direction of the Charging Party, on January 21, 1974, was
hired by Nancy Ferranti, an admitted supervisor, and
began work the next day. Jackson, as directed by the
Charging Party, applied for a job with the Respondent on
about January 31, and was interviewed by Ferranti.
Jackson testified, without contradiction, that Ferranti
asked during the interview if she was a union member, that
she said she was not, and that she was hired to begin work
on February 4. Both Calligaris and Jackson were hired as
machine operators. Calligaris has had about 35 years of
experience in this work, Jackson about 25 years.
About 2 weeks after Jackson was hired, on or about
February 18, she was told by Ferranti, as she was leaving
work, that Anthony Vitrano wanted to see her. When she
went to the office, Anthony Vitrano was there as well as his
son Gene and his nephew Vito Vitrano. Jackson testified,
without contradiction, that ". . . Gene did all the talking.
He says to me - he said, `I understand you have a union
card?' And I said, `Yes, I do.' He says, `Well, - ' he says,
`You know this is not a union shop?' I said, `I know.' He
said, `And we don't have any union benefits here.' I says, `I
know.' And he says, `What do you intend to do about your
union card?' And I says, `Well, I intend to put it up for a
while,' meaning I would turn it into the union office while I
was working in a non-union shop. And that was more or
less the conversation , except he kept asking me, oh, two or
three times when did I intend to leave. And I says, `I really
don't know. Right now I happen to like it here.' And he
kept saying, `Well, when are you leaving?' And that was
about the conversation. And I left."
OAK APPAREL, INC.
C. Organizing Activity by Calligaris and Jackson
There was a 45-minute lunch period for the Respon-
dent's employees, but no special area for this purpose, so
some ate at their machines , and some who were paid on a
piece rate basis continued to work during this period.
Calligaris and Jackson testified, and the Respondent's
witness confirmed , that they engaged in no union activity
until March 19 . On that date, after the lunch bell rang,
Calligaris and Jackson put on union buttons and distribut-
ed leaflets to the employees , placing the leaflets on the
machines . Calligaris testified first that leaflets were
distributed to all the employees , but, at a later point, that
they did not give leaflets to any employees who were
working. Giordano, an admitted supervisor, walked in
while this distribution was taking place . Calligaris testified
that "Sue [Giordano ] comes over to tie and says, `You
can't give out any literature.' I says, `We're on our lunch
hour.' I says, We can do it on our lunch hour.' She says,
'No, you can't.' So she went to the office and comes back
with Nancy [Ferranti]. As Nancy comes toward me - I
mean she has some papers in her hands and then she comes
to me and she says, `You can't give out literature .' I says,
`We're on our time , not the boss ' time.' She says, `You
can't. If you want to, give it on the outside. You can't give
it out here .' She collected all the literature around the shop.
She come and put it in my bin." There was no further
attempt to distribute literature in the shop. There was no
comment by either Giordano or Ferranti about the union
buttons, which were admittedly large and conspicuous, and
which Calligaris and Jackson continued to wear until their
termination.
On the following day, March 20, Ferranti told Calligaris
and Jackson during the -morning coffeebreak that Tony
Vitrano, an admitted agent and supervisor of the Respon-
dent, wanted to see them in the office.'When they went to
the office, both Vitrano and his nephew, Vito Vitrano; were
there . Jackson's description of what occurred was as
follows:
A. ... Tony wanted to know just what we intend
in getting out of all this. And I says to him, well, why
don't you call up Ed Banyai and ask him about it.
Q. Who is Mr. Banyai?
A. He is manager of our Local, 107.
Q. Okay. Go on.
A. He says that he had had him in Court on a
number of cases, and that he keeps losing all the cases,
and he's only making a fool of himself. He said, let's see
- I got to remember - he said that he would like to
join the union because he had been - belonged to the
union years ago, but that he wouldn't have any work if
he belonged to the union . But if Ed Banyai would
guarantee him at least 45 weeks a year, that he would
join . And he said that his employees work all year
round where union shops don't.... Tony says that he
knows all about labor laws , and that we can go right
ahead wearing our union buttons , and he had no
intention of firing us.
Calligaris testified that Tony Vitrano in this conversa-
tion-
705
A. - said, "What's the meaning of these buttons?"
So he says, "Is Mr . Banyai trying to cause trouble? And
what are you getting out of it?" So he said, "I know all
about the union. I used to belong to the union." He
says, "Nobody could tell me anything about the
union." He says, "If the union can guarantee me 52
weeks a year of work, I will join the union right away."
So he says , "Why don't you take the buttons off," He
says, "And work here steady?" He says, "I need
operators . You can keep them on," he said, "I won't
stop you from that ." He said, "I'll never fire you." He
went on saying, you know, about the union, you know,
what they do and all that, that he praised it. The only
thing then that - there was Vitrano in the office, too.
And the only thing that he said was that we have plenty
of work.
Q. Did you respond to any of the conversations
emanating from Mr. Vitrano or Mr. Tony Vitrano?
A. No, I didn't.
Q. Do you recall Mrs. Jackson saying anything?
A. I think she had said that when he called Mr.
Banyai - why don't he call Mr. Banyai up and find
out, when he says is he trying to cause trouble , what are
you getting out of it? She said to call Mr. Banyai up
and find out from him.
On March 21 , a number of employees made signs on
pieces of cardboard, expressing satisfaction with their
employment conditions and resentment of the activities of
Calligaris and Jackson, and they displayed these signs
attached to their hair or clothing.
D. The Discharge of Calligaris and Jackson
On the following day, March 22, Jackson, followed by
Calligaris, joined Giordano , as they frequently did, during
a coffeebreak . Jackson asked Giordano about the absence
of an employee referred to as Lucy, who apparently was
receiving, while working at the Respondent's plant, a union
pension based on prior employment at a plant represented
by the Union. Jackson testified that "Sue [Giordano] said
she [Lucy] was home sick. And I says, oh, she's sick all
right because she's going to lose her union benefits for
working in a non-union shop . And Sue said, 'I don't know
anything about that.' And walked away." Jackson testified
further that , Giordano came over to her later that morning
and "said to me, `I don't want you to talk to me about
anything about the union or anything except the work.-'
And I said, `Why not?' I says, `You've been talking about
me to all the employees trying to turn them against me.' I
said, `So, why can't I talk to you about what I want to? But
she didn't answer me. She just walked away."
Later that day, Jackson testified, she heard an operator,
referred to in the record as Fay or Faye, who worked at a
machine in back of Jackson, "yelling out, `Say ladies, did
you hear about the old ladies losing their union benefits?
That sneak and that spy over there is the cause of it all.'
And I turned around and I said it was none of her business
what the Union did since she was not a Union member.
And I guess we - shouting back and forth - and the next
thing I know Tony comes around and he says lie will not
put up with all this commotion in his shop and for me to
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave, leave right there. And I said to him twice that I did
not start it, that she started it, but he ignored me, or what
- I don't know - and turned to Mary [Calligaris] and he
says `And you get out with her.' And that's all we did."
Calligaris testified about this incident that: "Faye .. .
shouted from the machine, `Isn't it a shame,' she says,
`Mary Lee,' she hollered across to one of the girls, `Is it true
that the old ladies are going to lose their pension?' And
Mary Lee said, `I don't know.' . . . she said `It's a shame.'
She started calling, you know, Anne Jackson names. And
Anne says that, I mean, she shouldn't be working in a non-
union shop, that she's a retiree. So then I hollered across,
`The girls like their union benefits, they're good, but
otherwise if they don't get anything, the union is no good.'
I mean, after awhile then Mr. Vitrano came and he went
and stand in back of Anne Jackson. And he says, `Stop
raising a commotion.' He said he doesn't want to have this
in his shop . And Anne says, `I didn't start any trouble,
Faye started the commotion.' He told her to get out of the
shop. Then he looked across the row of machines. And he
said, `And you, you get out, too.' ... So I was waiting for
Anne. And then he calls me to go wait outside. I says, `I'm
waiting for Anne.' And he says, `Well, you have a clock to
punch, your card to punch.' `Oh,' I says, `I'm sorry, you
might be losing a minute.' I went and punched my card.
Then I waited for Anne, and then we left." She testified
further that, when Vitrano told her and Jackson to leave,
the other employees "were working. They were upset, but
they were working."
Pastore, the Respondent's only witness, testified that,
while she and a few other employees suspected Calligaris
and Jackson of being members of the Union, but not of
being organizers, she did not know of their union
affiliation until the leaflet distribution on March 19. She
admitted that she never had any conversation with either
of them, that her suspicion was not based on anything they
said or did but on what she heard from other employees,
and that "We felt more than told. . . . It's very-hard to
explain. If you work in a factory, you get to know certain
things and. the way certain people do certain things and
you automatically get suspicious of something. It's hard to
explain...., We knew that they had something to do with
the union. But what it was, we didn't know. We didn't
bother them, either." Pastore was at work on the day the
signs were made and worn by the employees opposed to
union organization, and testified that she wore the biggest
one. She was out sick, however, on the day Calligaris and
Jackson, were discharged. When she returned to work the
following day, she testified, she asked where they were, and
Faye told her about the argument and the commotion.
Concluding Findings
1. Credibility
The Respondent urges that the testimony of Calligaris
and Jackson should be generally discredited on the
grounds that they deceived employers and employees in
plants where they got jobs as to their purpose in working
there, deceived the Board in other proceedings, and were
shown on cross-examination not to be testifying truthfully.
Counsel for the Respondent subjected both Calligaris and
Jackson to prolonged and rigorous cross-examination;
referred to them in derisive terms, and made derogatory
comments to and about other counsel; criticized the
witnesses for looking at counsel for the Charging Party
while testifying although they were not in fact doing so on
some of these occasions, and although he admitted there
was no basis for any implication that counsel for the
Charging Party was signaling the witness; and, while he
apologized for his conduct in a few instances, continued to
use such tactics which appeared designed to, and to some
extent did, fluster and intimidate the witnesses. At the
request of counsel for the Respondent, counsel for the
General Counsel voluntarily furnished affidavits that had
been given in other Board proceedings involving either or
both of the dischargees. Jackson admitted, under cross-
examination with respect to one such affidavit, that she
lied as to a particular matter. And Calligaris, on cross-
examination, had a suspicious lapse of memory as to some
matters, including a telephone conversation she admitted
making to the Union office shortly before the discharges,
but claimed she could not recall to whom she talked nor
what was said. Counsel for the Respondent asserted that
Calligaris was claiming falsely that she was unable to recall
as to this and other matters, and stated that he would
subpoena everyone at the Union office who might have
talked to her on this occasion, but he did not do so.
Both Calligaris and Jackson appeared to be testifying in
a candid and convincing manner throughout most of their
lengthy testimony. I have carefully considered all the
factors bearing on their credibility, including, on the one
hand, the admission by Jackson that she lied in an affidavit
in a prior proceeding, the lapses of memory by Calligaris as
to certain matters, admissions they made on cross-exami-
nation,, and the surreptitious nature of their operations,
and, on the other hand, the manner of the Respondent's
cross-examination, the corroboration of some of their
testimony by the Respondent's only witness, and the
Respondent's failure to present evidence to refute their
testimony. On the basis of their demeanor and the evidence
as a whole, I credit virtually all of the uncontradicted
testimony of Calligaris and Jackson.5
2. Status of Calligaris and Jackson
As noted above, Calligaris and Jackson, at the direction
of the Charging Party, applied for jobs in order to
determine, while working in a plant, whether the employ-
ees there were interested in organization . They engaged in
organizing activity at some of these plants and, after
periods ranging from a few days to a couple of months, left
the job voluntarily or were terminated. Each of them has
been involved in other Board proceedings in which, on the
basis of a decision or settlement agreement, they were
awarded reinstatement and in some cases backpay.
Calligaris testified that she has left such jobs a day after her
reinstatement because of harassment on the job. The
Respondent contends that they left directly after being
S See Riverside Industries, Inc., 208 NLRB 311 (1974); Communication
Systems Construction, Inc., 209 NLRB 652 (1974); FMC Corporation, 211
NLRB 770 (1974).
OAK APPAREL, INC. 707
reinstated because their. organizational function had been
concluded, and that they returned only to collect the
backpay, which was turned over to the Charging Party.
The Respondent contends also that they did not acquire
employee status on jobs where, as professional organizers,
their only interest was in determining, employee receptive-
ness to union organization, and then to leave, voluntarily
or involuntarily, when they had accomplished this purpose.
Both Calligaris and Jackson were experienced sewing
machine operators. It is undisputed that they performed
their duties ably and diligently while employed by the
Respondent. Furthermore, Tony Vitrano assured both
women they could continue to work there after he learned
of their organizing activity and relationship to the
Charging Party.6
The definition in the Act provides that "The term
`employee' shall include any employee, and shall not be
limited to the employees of a particular employer , unless
the Act explicitly states otherwise...." While the
definition expressly excludes particular kinds of employees,
Calligaris and Jackson would not fall into any of these
excluded categories. In accord with the broad application
given to this definition, the Board and the courts find
generally that individuals who are hired by, work under the
control of, and receive compensation from, an employer,
are employees of that employer and entitled to the
protection of the Act, including cases where they were
employed on a part-time or temporary basis; were
attending school; were working on a second job; or in
other circumstances which indicated) they intended to
remain on a particular job for a limited time.? Moreover,
the General Counsel has issued complaints in a series of
cases involving Calligaris, Jackson, and others engaged in
similar organizing activity, premised on the employee
status of these individuals, and the Board has not ruled
that this activity deprives such individuals of employee
status.
In Elias Brothers Big Boy, Inc., 139 NLRB 1158 (1962),
where a waitress who was discharged had been the leading
union organizer, and was paid a fixed amount weekly by
the-union to cover her organizing expenses, the Board held,
on the basis of credibility resolutions, that she did not tell
the employer, as the employer claimed and she denied, that
she was a "plant" put there by the union to organize, and
found that she was an employee whose discharge was
violative of the Act .8 The Court of Appeals for the Sixth
Circuit,9 however, reversed the credibility findings made in
that case with regard to the discharge issue, found that the
waitress "was not a bona fide employee withim the intent of
§ 2(3) of the Act," and concluded that her discharge was
not a violation of, the Act. The Respondent relies on this
decision . I am bound, however, by determinations of the
Board, which in subsequent cases has found such individu-
als to be employees entitled to the protection of the Act.
e Counsel for the Respondent stated at the prehearing conference that
. we had reasons to believe these two, discnminatories were paid
professional organizers , at least a month prior to the time they were
discharged, it was not we found out they were and we discharged them. We
knew prior to that time and we did not discharge them the day we were
informed they were professional organizers."
7 See N.LRB. v. The Copps Corporation, 458 F.2d 1227 (C.A. 7, 1972);
LH.C., Inc.Fashion Furniture Company d/b/a Carafiols-Carafiols Furniture
The Holbrook Knitwear case,10 for example, on which the
General Counsel and the Charging Party rely, involved the
Charging Party; Banyai, one of the union officials who
directed the organizing activities of Calligaris and Jackson;
the discharge of one Sciacca, who initiated union organiza-
tion at the plant involved a day or two after he was
employed there; and antiunion employees who made and
posted signs and disrupted production in protests directed
at Sciacca. Further, Sciacca had been involved as a union
adherent in a Board proceeding on a prior job, as this
employer was aware, and had received payments from the
union over a period of time while employed in different
plants as well as while he was working for the employer.
Sciacca also gave the union the names of customers of the
employer, and the union threatened to and did take away
some of these customers. The employer argued in that case
that the evidence showed that "Sciacca participated in a
clandestine scheme to undermine" its business, and that
Sciacca "never intended to and never did become an
employee" of this employer within the meaning of the Act.
It also contended that his conduct in giving the union the
names of customers was "unprotected activity under any
circumstances." The Board in that case held that Sciacca
was an employee, that he was not discharged for revealing
customer names to the union but for causing, ever since he
was hired, what the employer referred to as "union
trouble," and that the employer by this discharge violated
Section 8(a)(3) of the Act. The Board also stated in that
case as follows:
At the hearing, Respondent requested all statements,
letters, or affidavits of Sciacca in possession of the
General Counsel under Sec. 102.118 of the Board's
Rules and Regulations in order that it might determine
whether there was relevant evidence in such docu-
ments. Respondent subsequently explained that it
wanted these documents, and particularly an affidavit
given by Sciacca 3 years previously in another case
involving another employer, in order to show a pattern
of conduct by Sciacca which would prove that he was
not a bona fide employee of Respondent inasmuch as
he obtains employment in order to organize a shop
and, when his effort proves unsuccessful, provokes a
discharge. Since the statements sought by Respondent
were furnished to the General Counsel in another
proceeding, related to matters not in issue here, and
were sought not for purposes of cross-examination, but
to show prior conduct by Sciacca, which, even if
established, we would not consider to be determinative
of the issue in this case, we adopt the Trial Examiner's
denial of Respondent's motion to strike Sciacca's
testimony because of the General Counsel's refusal to
furnish the requested documents.
Co. d/bla Carafiols, 195 NLRB 989, 992 (1972); International Chemical
Workers Union, AFL-CIO-CLC, 200 NLRB 341 (1972); QIC Corporation,
212 NLRB 63 (1974).
a The decision points out that, in similar circumstances ran earlier case
involving the same employer (137 NLRB 1057 (1962)), another individual
was found to have been discnmmatorily discharged.
9 N.LRB. v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (C.A. 6, 1964).
uo Holbrook Knitwear, Inc., 169 NLRB 768 (1967).
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, in all the relevant circumstances herem, that
Calligaris and Jackson, during the approximately 2 months
they were employed by the Respondent prior to their
discharge, were employees of the Respondent within the
meaning of the Act."
3. The discharge of Calligaris and Jackson
As counsel for the Respondent conceded at the hearing,
there is no dispute that Calligaris and Jackson performed
their work in an able and diligent manner. The Respondent
also admitted that it knew, prior to the events that
culminated in their discharge, that they were union
organizers. The testimony of Calligaris and Jackson,
corroborated by the Respondent's only witness, shows that
they engaged in, no union organizing activity until March
19, when they donned union buttons and distributed union
leaflets. Following this activity, they were told by repre-
sentatives of the Respondent that, while they could not
distribute leaflets in the plant, they could do so on the
outside, and that they could continue to wear the union
buttons, which they did until their termination.
Shortly after this, there was a conversation during a
coffeebreak in which Jackson told Giordano that a certain
employee was going to lose her union pension benefits
because of working in a nonunion shop. Word of this
spread among the employees. They demonstrated their
opposition to what was said about the loss of pensions and
to the organizing activities of Calligaris and Jackson
generally by making and wearing signs indicating they
liked their jobs and wanted the two organizers to stop their
activity or to leave. There is no evidence of any response
made by Calligaris and Jackson, or by the, Respondent, to
the making and wearing of these signs.
When Faye, however, while at her machine, shouted
derogatory remarks about the Union with reference to
Jackson's activities, Jackson, while at her machine, shouted
back at Faye. Calligaris added a remark, and the testimony
indicates that other employees might also have made
comments, but the principals in the shouting were Faye
and Jackson. While this was going on, Tony Vitrano came
out of the office and told Jackson that he would not put up
with this commotion in his shop and she should leave, and
then turned to Calligaris and told her to get out also. The
Respondent did not ask any questions about what
occurred, ignored Jackson's assertions that Faye started
the argument, and did not discharge Faye or any other
participant in this incident. It contends that it had to
discharge employees in order to maintain production, and
that it discharged the 2' who instigated the commotion
rather than the 50 antiunion employees.
The evidence does not establish, however, that this
incident was instigated by the two who were discharged.
Moreover, it apparent, from all the circumstances, that the
Respondent, without regard to who started the shouting or
11 See FMC Corporation, supra, re: discriminatory discharge of Bowman,
preferred to as a "spot," which, in that case , was defined as "an employee
planted in a company in order to; organize employees for a union."
12 N.L.R B. v. Star Publishing Co., 97 F 2d 465 (C.A. 9); Shelly &
Anderson Furniture Manufacturing Co., Inc v. N L.R.B., 497 F. 2d 1200 (C.A.
9, 1974); N.L R.B. V. Elias Brothers Restaurants, Inc., 496 F.2d 1165 (C.A. 6,
1974); Edinburg Citrus Association, 57 NLRB 1145 (1944); American
why, discharged only the two employees known to be
union protagonists. Further, employees continued to work
during this brief incident. The Respondent's contention
that the discharges were necessary in order to maintain
production, or that it was required by the situation to
discharge these 2 or the 50 other employees, is not
supported by the facts or the law.12 While the other
employees evidently considered these two as fellow
workers who were in favor of the Union, the Respondent
had admittedly learned, prior to the discharges, that
Calligaris and Jackson were union organizers. It did not
discharge them when it learned of this, but did so shortly
after 'they took steps openly, about 2 months after they
began to work for the Respondent, to initiate their
organizing activity at the plant. It is apparent from the
record as a whole, and I fmd, that the Respondent
discharged Calligaris and Jackson because of their at-
tempts to organize the, Respondent's employees, and
thereby violated Section 8(a)(3) and (1) of the Act 13
4. Interrogation
It is undisputed that Ferranti asked Jackson, when the
latter applied for a job on or about January 30, if she was a
union member, and hired her after she said she was not. It
is likewise undisputed that Jackson was directed by
Ferranti, on or about February 14, to go to Anthony
Vitrano's office; that, when she did, Gene Vitrano, an
admitted agent and supervisor of the Respondent, told her
he understood she had a union card, and she admitted this;
that he pointed out this was not a union shop and there
were no union benefits, and she said she knew that; that he
asked what she intended to do about her union card, and
she said she would put it up for a while; and that he asked
her several times when she intended to leave, and she told
him that she did not know, and that she liked it there.
I fmd that the Respondent, by this conduct of Ferranti
and Gene Vitrano, in the context of the discharges found
above to be violative of the Act, coercively interrogated
Jackson about her union membership and activities, and
thereby interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8(axl) of the Act.14
5. The distribution rule
The complaint alleges that, on or about March 19, the
Respondent prohibited its employees from distributing
union literature on their nonworking time, in violation of
the Act. The General Counsel points to the facts that, when
Ferranti and Giordano required' Calligaris and Jackson to
discontinue their distribution of union leaflets during the
lunch period on that date, there was no announced plant
rule about this, and charitable sales and collections were
permitted. The distribution was made, however, by placing
leaflets on the machines in the work area. Some employees
Telephone & Telegraph Co., 21 1 NLRB 782 (1974).
13 N.L.R.B. v Elias Brothers Restaurants, Inc, suprq • Holbrook Knitwear,
supra, Kuhlman Corporation, 210 NLRB 776 (1974); FMC Corporation,
-pro; QIC Coiporatior, supra
14 See N.LR.B. v. Triangle Publication.; Inc., 500 F.2d 597 (C.A. 3,
1974); Southern and Western Lumber Company d/b/a Gray Flooring, 212
NLRB 668 (1974).
OAK APPAREL, INC. 709
went out of the plant during-the lunch period, some ate
their lunches in the work area, and some who were paid on
a piece rate basis continued to work during this period.
Ferranti returned the leaflets and told Calligaris and
Jackson that, while they could not distribute literature in
the shop, they could "give it on the outside." No attempt
was made to distribute literature elsewhere in the plant. I
find, in all the relevant circumstances , that this conduct of
the Respondent did not constitute establishment of an
unlawful distribution rule . I shall, therefore, recommend
dismissal of this allegation of the complaint.15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, 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.
not establish violations by the Charging Party or the
dischargees of any other laws relevant to this proceeding;
the Respondent was admittedly aware prior to the
discharges that the dischargees were union organizers; and
the Respondent's assertions do not establish that the
circumstances herein warrant refusal to issue the usual
remedial order based upon the violations found.'?
Accordingly, I shall recommend that the Respondent be
ordered to offer Calligaris and Jackson reinstatement to
their former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and to make
them whole for any loss of pay each of them may have
suffered as a result of the discrimination against her,18 with
backpay computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).19
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
other manner infringing upon its employees' Section 7
rights,16 and that it take certain affirmative action designed
to effectuate the policies of the Act.
I have found that the Respondent discharged Calligaris
and Jackson on March 22, 1974, in violation of Section
8(a)(3) and (1) of the Act. The Respondent urges that the
Charging Party as well as Calligaris and Jackson should be
denied any remedial order, and asserts that their conduct
constitutes abuse of Board processes, violation of the Act,
and violation of other Federal laws. In closing argument,
counsel for the Respondent, referring to Calligaris and
Jackson as "paid professional mercenaries" and
"instigators," stated that these two were "alleged employ-
ees, who were planted by the union, who were planted for
the purpose of spying, surveilling the non-union activities
of employees at Oak, who were planted for the purpose of
instigating, who were planted for the purpose of surrepti-
tiously organizing, who were planted for the purpose of
handing out literature and talking about a union in the
guise of a rank and file employee."
There are no allegations in this proceeding, however, of
violations of those sections of the Act prohibiting certain
conduct by labor organizations; the evidence herein does
is Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962); cf. Pepsi-
Cola Bottling Co. of Los Angeles, 211 NLRB 870 (1974); Rockingham
Sleepwear, Inc., 188 NLRB 698, 701 (1971) (where production in the work
area ceased while the employees used it as a lunchroom).
16 NLRB. v. Express Publishing Company, 312 U.S. 426,437; NLRB.
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (CA . 4); Bob Henry Dodge, Inc.,
203 NLRB 78 (1973).
11 Phelps Dodge Corporation v. N.LR B., 313 U.S. 177, 187; Dobbs
Houses, 182 NLRB 675 , 682; Hawkins Construction Company, 210 NLRB
965, fn. 2 (1974); Apico Inns of California Inc., d/b /a Holiday Inn of Amenca
of San Bernardino, 212 NLRB 280, fn. 4 (1974).
CONCLUSIONS OF LAW
1. The Respondent, Oak Apparel, Inc., is an employer
engaged in commerce within the meaning of Section 2(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 coercively interrogating employees about mem-
bership in or activities on behalf of the above-named
Union, and by other conduct interfering with, restraining,
and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By discharging Calligaris and Jackson on March 22,
1974, in order to discourage membership in or activities on
behalf of the above-named Union, the Respondent has
discriminated against employees in regard to their hire or
tenure of employment, and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
18 The determination, upon compliance or in a backpay proceeding, of
the backpay that may be due Calllgans and Jackson, will, of course, take
into consideration payments made to them by the Charging Party and the
International, and backpay payments that may be made by other employers
for the period in question.
19 I find no merit in the Respondent's proposed order requiring the
General Counsel and the Charging Party, jointly and severally, to make the
Respondent whole for the costs it incurred in this proceeding.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER20
The Respondent, Oak Apparel, Inc., town of Copiague,
county of Suffolk, State of New York, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees about member-
ship in or activities on behalf of Local 107, International
Ladies' Garment Workers' Union, AFL-CIO, or in any
other manner interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
(b) Discharging or otherwise discriminating against any
employees in regard to their hire or tenure of employment
in order to discourage membership in or activities on
behalf of Local 107, International Ladies' Garment
Workers' Union, AFL-CIO, or any other labor organiza-
tion.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Mary Calligaris and Antoinette Jackson
immediate and full reinstatement to their former jobs, or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges.
20 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.
(b) Make Calligaris and Jackson whole for any loss of
pay each of them may have suffered as a result of the
discrimination against her, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under
the terms of this recommended Order.
(d) Post at its plant in the town of Copiague, county of
Suffolk, State of New York, copies of the attached notice
marked "Appendix." 21 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being duly signed by the Respondent's representative, shall
be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.
21 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 the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."