Petition — Retail Store Employees Union, Local 876 v. National Labor Relations Board

Supreme Court brief1978

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Text

Supreme Court of the United States

OCTOBER TERM, 1977

iy Wt ] 44 7

—_—-e ———__

— i ll -*. -. _

: RETAIL STORE EMPLOYEES UNION, LOCAL 876,

RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

—_—_——_-o-——_

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

———- oe ———

THEODORE SACHS

MARSTON, SACHS, NUNN, KATES

KADUSHIN & O’HARE, P.C.

Attorneys for Petitioner

1000 Farmer

Detroit, Michigan 48226

(313) 965-3464

interstate Brief & Record Co., Wurlitzer Bidg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-8746

~—— ~~~

TABLE OF CONTENTS

Page

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Statutory Provisions Involved .................... 3

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Reasons for Granting the Writ.................... 6

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Appendix

Opinion of the United States Court of Appeals

ET Che Ueackshsccceccscedoncese la

Decision and Order of the National Labor

Rabies davdcews dct deéscdecoeses 17a

Decision of the Administrative Law Judge ...... 22a

INDEX TO AUTHORITIES

Cases cited:

NLRB v Scrivener, 405 US 117 (1972).. 3,5,6,8,9,10,11

Pedersen v NLRB, 234 F2d 417 (CA 2 1956) ....... 11

Statutes:

Sec. 8(a) (4), NLRA, 29 USC §158(a) (4).... passim

Sec. 8(a) (1), NLRA, 29 USC §158(a) (1).......... 4

Age Discrimination in Employment Act, 29 USC

DN a4 4 oubbiee 6 64.684668 diccvcboseetescetcen 7

Fair Labor Standards Act, 29 USC §215(3) ....... 6

Federal Coal Mine Health and Safety Act of 1949,

Shoei ve debchus cukedebue s 7

Occupational Safety and Health Act of 1970, 29

I an re a 7

Title VII of the Civil Rights Act of 1964, 42 USC

EE ene Pee heer Ee ree 6

Water Pollution Prevention and Control Act, 33

INC Dus us e6be6ncbdddOnedticoctecas 7

—— ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

—_——e———

No.

———o —_—

RETAIL STORE EMPLOYEES UNION, LOCAL 876,

RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

——-o —_ -

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

——e ———

Petitioner, Retail Store Employees Union, Local 876,

Retail Clerks International Association, AFL-CIO,

respectfully prays that a writ of certiorari issue to

review the Judgment and Opinion of the United States

Court of Appeals for the Sixth Circuit, entered in this

proceeding on January 11, 1978.

OPINION BELOW

The Opinion of the Court of Appeals, not yet

reported, appears in the Appendix hereto. The Opinion

of the National Labor Relations Board and its

Administrative Law Judge also appear in the Appendix

hereto and are reported at 219 NLRB No. 187.

JURISDICTION

The Judgment of the Court of Appeals for the Sixth

Circuit was entered on January 11, 1978. This petition

for certiorari was filed within 90 days of that date. This

Court's jurisdiction is invoked under 28 USC §1254(1).

QUESTION PRESENTED

Section 8(a) (4) of the National Labor Relations Act

(like similar provisions of other Federal statutes) maxes

it unlawful for an employer ‘‘to discharge or otherwise

discriminate against an employee because he has filed

charges or given testimony under this Act.’ Does an

employer violate the section by allegedly discharging an

unsubpoenaed employee for refusing to give such

testimony?

The NLRB held, yes, and the Sixth Circuit affirmed.

Petitioner submits that the answer is, no.

ee eT

STATUTORY PROVISIONS INVOLVED

“(a) It shall be an unfair labor practice for an

employer —

(4) to discharge or otherwise discriminate

against an employee because he has filed charges

or given testimony under this subchapter* * *.”

29 USC §158(a) (4).

STATEMENT OF THE CASE

Petitioner, qua employer, was charged and found

guilty by the National Labor Relations Board of

violating Section 8(a) (4) of the National Labor Relations

Act, as amended, because it discharged an employee,

Anna Pennacchini, allegedly in retaliation for her

refusal to testify in a prior NLRB proceeding to which

she had not been subpoenaed. The Sixth Circuit

affirmed.

It was undisputed both by the Board and by the Sixth

Circuit, in affrmance, that »mployee Pennacchini had

neither previously filed unfair practice charges, nor

given testimony to the Board, nor (unlike NLRB v

Scrivener, 405 US 117 (1972)) given any pre-hearing

statement to any agent of the Board.

The Board’s Administrative Law Judge had found

respondent guilty of Section 8(a) (4) (and derivatively,

Section 8(a) (1))' violations of the Act on the exclusive

basis that “she refused to appear voluntarily as a

witness in the unfair labor practice proceeding

involving a former fellow employee, on the ground that

she had no direct knowledge of the matters about

which she was to be questioned; her presence at the

hearing, moreover, was not sought to be compelled by

subpoena. In these circumstances, I conclude that her

right not to appear was protected by the Act.” No

authorities were cited.

From these and other ‘indings and conclusions,

respondent timely excepted to the NLRB.

On April 18, 1975, the Board affirmed, 219 NLRB No.

187. It expressly agreed with the ALJ's central finding,

above quoted, although not citing the absence of a

subpoena as material. The Board continued that, “we

find no merit in the Respondent's contention that she

was not requested to testify, because such an assertion

is contrary to her credited testimony.” The Board

further found that the letter of termination cited

Pennacchini's “forget[fulness]” of her prior accounts of

the other employees’ activities and thus respondent

fired Pennacchini “for lack of cooperation.”” The Board

held that that violated Sections 8(a) (4) and (1) of the

Act. The Board cited no direct authorities, except to

conclude that the protection of the Act given to an

' “(a) It shall be an unfair labor practice for an employer —

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this

title;* * *” 29 USC §158(a) (1).

employee who in fact testifies in behalf of a fellow

employee in an NLRB proceeding “extends to an

employee who, without malice, refuses to give

testimony, voluntarily, against a fellow employee.”

The Board did not find that respondent sought to

foster untrue testimony, nor that Pennacchini’s

assessment of the competence of her testimony was

valid. As to the latter, the Board said:

“Pennacchini may have been wrong in her

assessment of the value of her testimony and her

competence as a witness. Although her

unsigned, unsworn statement, taken by the

Respondent in April, tends to support her

assertion in this regard, we need not decide that

issue. On the other hand, we cannot say she

acted with malice. In any event, as the

Administrative Law Judge noted, the

Respondent could have lawfully tested this

assessment and compelled the testimony of this

reluctant witness, but failed to do so. Instead, as

an act of reprisal the Respondent discharged her

for tack of cooperation.”

On such findings the Board affirmed its

Administrative Law Judge and ordered a reinstatement

and back pay remedy.

The Sixth Circuit affirmed — exclusively on the §8(a)

(4) ground; it declined to reach the §8(a) (1) ground on

which this Court had declined to intimate its views in

NLRB v Scrivener, 405 US 117, 125 (1972).

REASONS FOR GRANTING THE WRIT

THE CASE PRESENTS QUESTIONS OF MAJOR

STATUTORY SIGNIFICANCE; AND THE DECI-

SION BELOW IS PLAINLY CONTRARY TO THE

PROVISIONS OF THE ACT AND THIS COURT’S

DECISION IN NLRB v SCRIVENER, 405 US 117

(1972).

The statutory provision in question, §8(a) (4), 29 USC

§158(a) (4),? is a provision common to several statutes

dealing with regulatory agencies. See, inter alia, Title

VII of the Civil Rights Act of 1964, 42 USC §2000e-3°;

Fair Labor Standards Act, 29 USC §215(3)*;

2 “(a) It shall be an unfair labor practice for an employer —

** "(4) to discharge or otherwise discriminate against

an employee because he has filed charges or given

testimony under this act.”

> “(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or applicants

for employment, for an employment agency, or joint labor-

management committee controlling apprenticeship or other training

or retraining, including on-the-job training programs, to

discriminate against any member thereof or applicant for

membership, because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in amy manner in

an investigation, proceeding, or hearing under this subchapter.”’

* “(3) to discharge or in any other manner discriminate against

any employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or related

to this chapter, or has testified or is about to testify in any such

proceeding, or has served or is about to serve on an industry

committee;”

Occupational Safety and Health Act of 1970, 29 USC

§660(c) (1)5; Water Pollution Prevention and Control

Act, 33 USC §1367(a)*; Federal Coal Mine Health and

Safety Act of 1969, 30 USC §280(b) (1)’; and Age

Discrimination in Employment Act, 29 USC §623(d)®. In

$s “(c) (1) No person shall discharge or in any manner

discriminate against any employee because such employee has filed

any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter or has testified or is

about to testify in any such proceeding

or because of the exercise by such employee on behalf of himself or

others of any right afforded by this chapter.”

* “(a) No person shall fire, or in any other way discriminate

against, or cause to be fired or discriminated against, any employee

or any authorized representative of employees by reason of the fact

that such employee or representative has filed, instituted, or caused

to be filed or instituted any proceeding under this chapter, or has

testified or is about to testify in any proceeding resulting from the

administration or enforcement of the provisions of this chapter.”

7 “(b) (1) No person shall discharge or in any other way

discriminate against or cause to be discharged or discriminated

against any miner or any authorized representative of miners by

reason of the fact that such miner or representative (A) has notified

the Secretary or his authorized representative of any alleged

violation or danger, (B) has filed, instituted, or caused to be filed or

instituted any proceeding under this chapter, or (C) has testified or

is about to testify in any proceeding resulting from the

administration or enforcement of the provisions of this chapter.”

* “(d) It shall be unlawful for an employer to discriminate

against any of his employees or applicants for employment, for an

employment agency to discriminate against any individual, or for a

labor organization to discriminate against any member thereof or

applicant for membership, because such individual, member or

applicant for membership has opposed any practice made unlawful

by this section, or because such individual, member or applicant for

membership has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or litigation under

this chapter.”

granting review in NLRB v Scrivener, 405 US 117 (1972),

the Court stated that, ‘‘We granted certiorari in order to

review a decision that appeared to have an important

impact upon the administration of the Act.”’

The present case involves an unprecedented

construction and application of the Section, and is

moreover one which violates the letter and spirit of

Scrivener.

In the instant case, it was neither alleged nor found

that in connection with any former Board proceeding

the employee had filed charges, testified, given

statements to the Board, or even threatened to do any of

these things, or an account of any of the foregoing had

suffered any discriminatory treatment.

Ironically, the Section 8(a) (4) violation was found by

the Board and affirmed by the Sixth Circuit because of

the opposite — namely, that the employer assertedly

sought to have the employee participate in a former

Board proceeding and that she had assertedly refused to

do so. Moreover, despite its rationale below, the Board

neither decided that the Employer had proposed either

false or incompetent testimony nor that the employee

was correct in avowedly concluding that she could not

competently testify in the former case. Rather, the

Board’s decision, assuming the question, was that

Section 8(a) (4) protected an employee’s refusal to

participate in a Board proceeding because, right or

wrong, the employee was “without malice in supposing

her own testimony to be incompetent in the prior case

and that the Act, which protects employees who give

testimony in an unfair labor practice proceeding ‘also

extends to an employee who, without malice, refuses to

give testimony, voluntarily, against a fellow employee.”

The ineluctable effect of the Board's decision is that an

entployer cannot direct its own employee to come to an

NLRB trial on working time to give testimony merely

because the employee has a notion, however ill founded,

that his testimony, if requested, would not likely be

significant or competent .°

Such conclusion, that an alleged refusal to testify is a

violation of Section 8(a) (4), is unprecedented in the

Act’s history is not supported by the language of the

Section, and is contrary to the statutory purpose as

enunciated by this Court in Scrivener, supra.

In Scrivener, the Court found an 8(a) (4) violation

where employees were discharged because they had in

fact given statements to an NLRB field examiner during

the course of a prior pre-hearing administrative

investigation. The Court concluded that Section 8(a) (4)

reached not only literal violations of that section

respecting the actual filing of charges or “giving

testimony,”” but also covered the giving of pre-trial

statements to Board agents. The rationale asserted by

the Court was that such communications to the Board

are appropriately subsumed within the concept of

giving testimony, consistent with the legislative history

of the Section and its purpose; namely, to keep

“channels of information” open to the Board.

* There is nothing in Section 8(a) (4) which supports that

conclusion and, additionally, never has a determination of

discriminatory discharge under Section 8(a) (4) ever previously

turned on the state of mind of the alleged discriminatee. Surely an

employer should not be required to act at its peril depending upon

the state of mind of its employee. And if employee lack of “malice”

excuses a discharge for refusal to testify, the employer should be

equally privileged to act in the event of an unreasonable employee

“refusal” to testify — as where in the judgment of respondent's

counsel, as here, an employee's testimony would have been

material, relevant and competent in the former proceedings had she

been called.

But unless employers are to be denied equal access in

“channeling information’ to the Board, the Board’s

present theory — that an employer's alleged imposition

of discipline for an employee's refusal to testify is the

equivalent of such discipline for an employee actually

testifying — turns Section 8(a) (4) on its head and

undermines the rationale of Scrivener. For, instead of

effectuating the purpose of the subsection to encourage

or protect access to the Board and to keep open to it

“channels of information,” the present ruling of the

Board and of the Sixth Circuit is one calculated to

discourage such access to the Board — at least by

employers through their potential witnesses — and to

reward employee refusals to give information to the

Board.

The Board and the Sixth Circuit, however, reasoned

that a employer suffers no prejudice by the Board’s

holding because, if need be, the employer can

subpoena its reluctant [and insubordinate] employee to

testify. But, if an employee's testimony can, in fact, be

compelled by the employer, the degree of compulsion

used by the employer does not change the character of

what is involved and make it more acceptable to use the

greater compulsion of a subpoena.

In fact, Scrivener — at the Board’s urging — rejected

precisely the subpoena, no-subpoena distinction which

the Board and the Sixth Circuit have here adopted, 405:

US 117, 124. The Court in Scrivener expressly concluded

that Section 8(a) (4)’s protection could not be dependent

on the happenstance of whether a prospective witness

had been subpoenaed and that an unsubpoenaed

“witness” enjoyed at least the same protection [and we

would submit the same obligations] as a subpoenaed

one.!° On the other hand, nothing in Scrivener, nor the

prior decisions of the Board, accords an unsubpoenaed

“witness’’ fewer employment obligations, unless

Section 8(a) (4) is to be read as denying employers the

10 “The Board's subpoena power also supports this

interpretation. Section 11 of the Act, 29 USC §161, gives the Board

this power for ‘the purpose of all hearings and investigations.’ Once

an employee has been subpoenaed he should be protected from

retaliatory action regardless of whether he has filed a charge or has

actually testified. Judge Lumbard pertinently described it: ‘It is, we

think, a permissible inference that Congress intended the protection

to be as broad as the [subpoena] power.’ Pedersen v NLRB, 234 F2d

417, 420 (CA 2 1956).

“Under this reasoning, if employees of Scrivener had been

subpoenaed, they would have been protected. There is no basis for

denying similar protection to the voluntary participant.” 405 US 117,

124.

right to instruct employees to appear at a Board hearing

during their working hours and, if present at that

hearing, to testify if called as a witness.**

In short, neither the language nor the history, nor the

purpose, nor the spirit of Section 8(a) (4) gives any

basis for this unprecedented and erroneous ruling.

Because of the important statutory issue involved

here, which affects numerous federal agencies, and the

employers and employees of the nation, the writ should

be granted, and the decision below should be reversed.

11 There are speculative intimations in the Sixth Circuit's

decision, as distinguished from the Board’s own decision, that the

testimony of a subpoenaed employee is likely to be more reliable

than of an employee who merely testifies at the request of her

employer.

The Sixth Circuit, hypothesizing facts not found by the Board

itself, said:

“Although Pennacchini was not prevented from reporting

information to the Board, the coercion applied against her

had a direct bearing on a pending Board proceeding. Had

she acquiesced in her employer's request that she testify

against Frazier, she could very well have perjured herself

before the Board. The result would have been more serious

than a closing of ‘channels of information’ to the Board. It

would have been the outright misleading of the Board.

Coercing employees to give untrue testimony just as surely

undermines the integrity of the Board proceedings as does

coercing employees to give no testimony at all.”

Apart from the irrelevance of that proposition to the statutory

section sued upon, and to the Board’s own findings below, there is

certainly no justification for that conclusion; the employee if called

as a witness is required in either event to take the same testimonial

oath of probity, and is subject to the same liability for perjury.

Furthermore, in either case, any improper testimony by the

employee would be subject to the same exclusionary rules of

evidence.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the Judgment and Opinion of the Sixth Circuit.

Respectfully submitted,

THEODORE SACHS

Attorney for Petitioner

1000 Farmer, Detroit, MI 48226

(313) 965-3464

DATED: April 3, 1978.

APPENDIX

DECISION

UNITED STATES COURT OF APPEALS — SIXTH CIRCUIT

(N.L.R.B. v Retail Store Employees Union

Local 876, et al. — No. 76-1004)

(Decided and Filed January 11, 1978)

Before: CELEBREZZE, ENGEL, Circuit Judges, and

WALINSKI,” District Judge.

CELEBREZZE, Circuit Judge. The National Labor

Relations Board seeks enforcement of its order that

Retail Store Employees Union Local 876 reinstate a

former employee, Anna Pennacchini, with back pay.

The Board found in an unfair labor practice proceeding

that the union qua employer had violated §8(a) (4) of the

National Labor Relations Act (“the Act’) by firing

Pennacchini in retaliation for her refusal to testify

voluntarily for the union in an earlier unfair labor

practice proceeding.’ 219 NLRB 1188 (1975). Section

8(a) (4) states that it shall be an unfair labor practice for

an employer “to discharge or otherwise discriminate

against an employee because he has filed charges or

given testimony” in an NLRB proceeding. The union

petitions for reversal of the Board order on the grounds,

* The Honorable Nicholas J. Walinski, Judge, United States

District Court for the Northen District of Ohio, sitting by

designation.

' The Board also found that Pennacchini’s discharge violated

§8(a) (1) of the Act, which makes it an unfair labor practice ‘‘to

interfere with, restrain, or coerce employees in the exercise of rights

guaranteed in Section 7 of this Act.’ Because of our disposition of

the §8(a) (4) charge, we need not review the Board's finding with

respect to §8(a) (1). See NLRB v. Scrivener, 405 U.S. 117, 125 (1972).

inter alia, that the Board's findings are not supported by

substantial evidence, that §8(a) (4) does not protect

employees who have refused to offer testimony, that

Pennacchini was a ‘‘managerial’’ employee not

protected by the Act, and that the reinstatement order

constituted an abuse of discretion.

The principal factual dispute before the Board was

whether Anna Pennacchini’s discharge had been

motivated, at least in part, by her refusal to testify for

her employer in an unfair labor practice proceeding

involving a former fellow employee, Barbara Frazier.

Frazier was discharged by the union in October 1972,

and immediately initiated proceedings against the

union, alleging that her discharge was violative of the

Act. According to Pennacchini,? union president Horace

Brown told her on several occasions in early 1973 that

she was expected to testify at Frazier’s hearing, and he

also directed Pennacchini to prepare a list of alleged

improprieties committed by Frazier, based on rumors

that he (Brown) had heard. Pennacchini further

maintains that on the day before the Frazier hearing,

she was asked by the union’s attorney if she was

prepared to testify at the hearing to substantiate the

allegations in the list she had prepared for Brown. Her

response was that she had “never personally observed

any” of the misconduct alleged in the list, and that she

knew that the attorney “wold not want [her] to testify

to something [she! did not personally observe.”’

Pennacchini was not called as a witness by either side

at the Frazier hearing, although the union could have

subpoenaed her testimony under §11(1) of the Act.

2 Pennacchini testified at her own unfair labor practice hearing,

conducted before an Administrative Law Judge. 219 NLRB at

1190-91.

Approximately one month later, Brown fired

Pennacchini in a termination letter that accused her of

“extraordinary disloyalty’’ and of ‘conveniently’

forgetting certain facts that tended to incriminate

Frazier.*

3 Dear Mrs. Pennacchini:

This is to notify you of your termination of employment with

Local 876, effective immediately.

I am terminating your department and position, effective

immediately, to complete the phase-out which began many months

Quite frankly, | would have taken this action sooner but | was

determined to avoid any incident which might be claimed to

prejudice the Union elections, just concluded, whose fairness 1] was

determined to assure.

You should know that even had | not terminated your

department and tion, as | am doing, | would have found your

discharge necessary because of your extraordinary disloyalty and

breaches of confidence as an employee.

These include, according to the testimony of Barbara Frazier in

her NLRB trial, your reporting to her the conversation between our

attorney and yourself, including part of the intended Union defense

against Mrs. Frazier’s unjustified claim. Not only did you

conveniently “forget’’ those facts which you had previously told me

about Mrs. Frazier, which had in part influenced my decision to

terminate her, but by communicating to a person suing the Union

the confidences of your employer and its attorney in connection

with the defense of that matter, you violated every obligation of

trust due to your employer.

Secondly, you were plainly responsible for the unauthorized and

surreptitious release of the Union's mailing list in connection with a

campaign mailing by Ray Soncrant. Quite apart from the malicious

content of that document, you violated your obligation to maintain

the confidence of that list, which was entrusted to you only for

authorized purposes.

(continued on next page)

Shortly after receiving the termination letter,

Pennacchini filed an unfair labor practice charge against

the union. The Administrative Law Judge concluded

that Pennacchini “was an essentially truthful witness,”

219 NLRB at 1194. He also concluded that the union had

terminated Pennacchini ‘because she refused to appear

voluntarily as a witness in the unfair labor practice

proceeding involving a former fellow employee, on the

ground that she had no direct knowledge of the matters

about which she was to be questioned.” Id. The Board

adopted the findings and conclusions of the

Administrative Law Judge, noting that it was

“abundantly clear that Pennacchini’s discharge was

motivated, at least in part, by her refusal to cooperate

with the Respondent, ... when, in the presence of

Brown and the Respondent's counsel, she disclaimed

firsthand knowledge of Frazier’s shortcomings.” 219

NLRB at 1188.

(continued from preceding page)

As the chief executive officer of this Union, | would find

intolerable disloyalty to the Union and breaches of its confidences

by any employee. But for such misconduct to occur by an employee

in your sensitive and confidential relationship is inexcusable. The

Union obviously cannot be in the position of having its policies and

confidences violated by someone whose very job responsibility it is

faithfully to execute and protect them.

Although, as chief executive officer, | am constitutionally

empowered to discharge you without cause, | point out all of these

matters so there will be no false accusations as to the reason for your

discharge.

Sincerely,

's)/ Horace Brown

Horace Brown

President

We have carefully reviewed the record, and conclude

that the Board’s findings of fact are supported by

substantial evidence on the record as a whole. Universal

Camera Corp. v. NLRB, 340 U.S. 474 (1951). According to

Pennacchini’s credited testimony, she was asked by the

union if she would testify in support of certain

allegations against Frazier and she refused. The

termination letter demonstrates that Pennachini’s

conduct with regard to the Frazier hearing was clearly

on Brown’s mind when he fired her. Based on this

evidence, the Board could reasonably conclude that the

firing was at least partially motivated by Pennacchini's

refusal to testify.

We recognize that Pennacchini’s discharge may have

been motivated by factors other than her refusal to

testify: indeed, the termination letter suggests several

possible explanations.‘ But it is not the job of this

Court to conduct a de novo consideration of the

evidence: we need only find that there was substantial

evidence to support the Board’s conclusion. Moreover,

the Board was not obligated to find that Pennacchini's

refusal to testify was the sole motivating factor in her

discharge. See NLRB v. West Side Carpet Cleaning Co.,

329 F.2d 758, 761 (6th Cir. 1964).

As we read the Board’s findings, Pennacchini was

fired because she would not testify in support of the

union’s position at the Frazier unfair labor practice

¢ The union maintains that Pennacchini was discharged because

her position had been eliminated. In view of the failure of the union

to fire Pennacchini until several months after her job had ostensibly

been eliminated, the Board could well have been skeptical of this

explanation.

proceeding. The principal legal issue in this case is

whether such a discharge constitutes a violation of §8(a)

(4) of the Act. We believe that it does.

Although the specific language of §8(a) (4) refers only

to an employee who “has filed charges or given

testimony,” the Supreme Court has read the statute to

protect other employees as well. In NLRB v. Scrivener,

405 U.S. 117 (1972), the Court held that §8(a) (4)

precludes the discharge of an employee for giving

written sworn statements to a Board field examiner. The

employee had not “filed charges or given testimony,”

but the Court felt that Congress had intended to protect

employee participation in the investigatory, as well as

the hearing stages of Board proceedings.

The Act’s reference in §8(a) (4) to an employee

who “has filed charges or given testimony,”

could be read strictly and confined in its reach to

formal charges and formal testimony. It can also

be read more broadly. On textual analysis alone,

the presence of the preceding words ‘‘to

discharge or otherwise discriminate’ reveals, we

think, particularly by the word “otherwise,” an

intent on the part of Congress to afford broad

rather than narrow protection to the employee.

id. at 122 (emphasis supplied).

This interpretation was consistent with the purpose of

the section, which was to ensure that all persons with

information about unfair labor practices “’ ‘be

completely free from coercion against reporting them to

the Board.’” Id. at 121, quoting Nash v. Florida

Industrial Comm'n, 389 U.S. 235, 238 (1967). Such

“complete freedom” is necessary, said the Court, “ ‘to

prevent the Board’s channels of information from being

dried up by employer intimidation of prospective

complainants and witnesses.’ ” 405 U.S. at 122, quoting

John Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d 483,

485 (D.C. Cir. 1951).

Similar considerations militate in favor of extending

statutory protection to the activity involved in this case.

Although Pennacchini was not prevented from

reporting information to the Board, the coercion applied

against her had a direct bearing on a pending Board

proceeding. Had she acquiesced in her employer's

request that she testify against Frazier, she could very

well have perjured herself before the Board. The result

would have been more serious than a closing of

“channels of information” to the Board. It would have

been the outright misleading of the Board. Coercing

employees to give untrue testimony just as surely

undermines the integrity of Board proceedings as does

coercing employees to give no testimony at all.

The fact that Pennacchini never actually gave

testimony or spoke with a Board agent is irrelevant. As

the Court pointed out in Scrivener, the practicalities of

administrative action require that §8(a) (4) protection

not be limited to particular, discrete stages of Board

proceedings.

An employee who participates in a Board

investigation may not be called formally to

testify or may be discharged before any hearing

at which he could testify. His contribution might

be merely cumulative or the case may be settled

or dismissed before hearing. Which employees

receive statutory protection should not turn on the

vagaries of the selection process or on other

events that have no relation to the need for

protection. It would make less than complete

sense to protect the employee because he

participates in the formal inception of the

process (by filing a charge) or in the final, formal

presentation, but not to protect his participation

in the important developmental stages that fall

between these two points in time. This would be

unequal and inconsistent protection and is not

the protection needed to preserve the integrity of the

Board process in its entirety.

405 U.S. at 123-24 (emphasis supplied).

We think that the “integrity of the Board process in

its entirety’’ would be seriously undercut if employers

were allowed to freely discharge employees who

because of lack of knowledge refuse to testify in support

of the employer position at an unfair labor practice

hearing.’ Employees might well feel compelled to offer

misleading statements to the Board if they knew they

could be fired for showing reticence in coming forward

with testimony favorable to the management side. Fair

adjudication of disputes requires that witnesses be free

from excessive external pressures to manufacture or

withhold particular evidence.

S In Hoover Design Corp. v. NLRB, 402 F.2d 987 (6th Cir. 1968),

this Court ruled that the discharge of an employee for threatening to

go to the Board or threatening to file charges with the Board did not

constitute a violation of §8(a) (4). Although we are not presented

with a case involving “threats” to file charges, we note that Hoover

Design was decided prior to the Supreme Court's decision in

Scrivener. To the extent that Hoover Design is inconsistent with

Scrivener, it is obviously no longer binding authority.

The legislative history of §8(a) (4) supports

application of the statute in this case. In the Senate

debates on the Wagner Act, of which §8(a) (4) was a

part, Senator Wagner gave the following example of the

kind of coercion that §8(a) (4) was designed to alleviate:

In certain plants which now have company-

dominated unions, the employees were asked to

sign petitions, to be sent to their representatives,

opposing this bill. I received personal letters

from workers in which they said they had

signed these petitions because they knew if they

did not do so their jobs would be lost, and that

they needed their jobs in order that their

families might eat. It is that sort of discrimination

which we wish to prevent.

79 Cong. Rec. 7676 (1935) (emphasis supplied).

Coercing employees to sign petitions with which they

do not agree is closely analogous to coercing employees

to give testimony they believe to be false. The intent of

the Act’s authors was that workers should not feel

compelled by the threat of employer retaliation to

misrepresent their own knowledge or beliefs on matters

relevant to the Act.

Respondent argues that protecting a refusal to testify

will actually dry up channels of information to the

Board by encouraging the withholding of evidence.

What we are protecting here, however, is not simply a

refusal to testify: if that were the only issue, then the

union would have subpoenaed Pennacchini, as the Act

clearly permits it to do. See 29 U.S.C. § 161(1). Rather,

we are protecting employees from pressure to deliver

false or misleading information to the Board. Section

10a

8(a) (4) by itself neither encourages nor discourages

testimony: it simply leaves employees free to choose

their actions before the Board without fear of employer

reprials.°

Respondent has maintained throughout the

proceedings that Pennacchini was a ‘“‘managerial”’

employee, not subject to the protections of the Act.

NLRB v. Bell Aerospace Co., 416 U.S. 267, 289 (1974).

Pennacchini’s job involved preparation of the union

newspaper. The union contends that, in that capacity,

she exercised such independence of judgment as to

identify her with management. The Board expressly

adopted the finding of the Administrative Law Judge

that Pennacchini was not a managerial employee. 219

NLRB at 1188 n.3.

Our standard of review on this issue is whether the

Board’s decision has “warrant in the record’ and a

“reasonable basis in law.” NLRB v. Hearst Publications,

322 U.S. 111, 131 (1944). See also K. C. Davis,

Administrative Law of the Seventies § 30.00 at 691

(1976). We find that standard to be fully met in this

case. ‘‘Managerial’’ employees are those ‘who

formulate, determine, and effectuate an employer's

policies.” Eastern Camera & Photo Corp., 140 NLRB 569,

571 (1963), cited with approval in NLRB v. Bell Aerospace

Co., 416 U.S. 267, 290 n.19 (1974). The determination of

an employee’s managerial status “depends upon the

extent of his discretion, although even the authority to

¢ This is not to suggest that §8(a) (4) protects improper employee

conduct, such as perjury, before the Board. Since there are no

allegations of misconduct by Pennacchini in Board proceedings, we

are not presented with that question in this case.

lla

exercise considerable discretion does not render an

employee managerial where his decision must conform

to the employer's established policy.” 140 NLRB at 571.

According to Pennacchini’s credited testimony, she had

nothing to do with the policies concerning what should

be printed in the union newspaper and never decided

what should be included in an article. She would

always submit items suggested for publication to the

union’s chief executive officer for approval, and rarely

(if ever) expressed an opinion to him on the substance

of the articles she was directed to publish. Her other

duties were to proofread collective bargaining

agreements, prepare flyers and handbills, construct

photographic layouts, and occasionally run the

duplicating machine. She did not attend any strategy

meetings of union officials.

This evidence provided a sufficient basis upon which

the Board could reasonably conclude that Pennacchini

did not “formulate, determine, and effectuate’ her

employer's policies. There is “warrant in the record” to

support the premise that her job-related decisions had

to “conform to the employer's established policy,”’ and

were not the result of her independent judgment. In

this regard, this case is distinguishable from Wichita

Eagle & Publishing Co., Inc. v. NLRB, 480 F.2d 52 (10th

Cir. 1973), cert. den., 416 U.S. 982 (1974) where the

Court found an editorial writer of a daily newspaper to

be a “managerial” employee. The writer in Wichita

Eagle “could, and did, propose topics for editorials,

[and] propound her own viewpoint in an effort to

influence editorial policy on various subjects.” Id. at 55.

12a

Here, there was ample testimony — which the Board

found credible? — that Pennacchini neither contributed

her own views or proposed editorial topics. Rather, she

simply did what she was told.®

Respondent also argues that reinstatement is an

inappropriate remedy because ‘‘there is no position to

which Pennacchini can be reinstated.” This claim is

’ The Board adopted the following conclusion of the

Administrative Law Judge:

Although [Pennacchini] performed duties that placed her

somewhat above the level of other clerical and office

employees, the evidence, on balance, convinces me that she

was not in the managerial category. As we have seen, she

frequently consulted with the executive head of the Union

and, while she exercised considerable independence of

judgment respecting the specific content of the editorials

she wrote on behalf of the head of the Union, they were

subject to discussion with her superiors before being

composed and published. 219 NLRB at 1193-94.

Respondent suggests that a finding that Pennacchini exercised

“considerable independence of judgment respecting the specific

content of the editorials she wrote” compels a finding that she was

managerial employee. As we interpret the Administrative Law

Judge’s decision, and the testimony he credited, Pennacchini’s

independence of judgment went only to the form, and not the

substance of the editorials.

® In endorsing the findings of the Administrative Law Judge

with regard to Pennacchini’s non-managerial status, see note 7,

supra, the Board also noted that “Pennacchini’s alleged ‘managerial’

status had drastically changed in the months preceding her

discharge.” 219 NLRB at 1188 n.3. This “further weaken([ed] the

argument that she enjoyed such special status.” Id.

* The actual order was that Pennacchini be offered “immediate

reinstatement to her former job, or if that job no longer exists, to a

substantially equivalent position, without prejudice to her seniority

and other rights and privileges.’ 219 NLRB at 119. Determination

of whether “a substantially equivalent’ position is available is

ordinarily left to the compliance stage of Board proceedings. See

North Valley Lumber Sales, Inc., and Ralph Allen, 229 NLRB No. 178

(1977).

13a

without merit. Neither the Board nor the

Administrative Law Judge made a specific finding that

Pennacchini’s position had been eliminated. Even if

there were such a finding, this Court cannot disturb the

reinstatement order “unless it can be shown that the

order is a patent attempt to achieve ends other than

those which can fairly be said to effectuate the policies

of the Act.” Virginia Electric and Power Co. v. NLRB, 318

U.S. 533, 540 (1943). We see no attempt to evade the

purposes of the Act here. Indeed, reinstatement of

Pennacchini will effectuate the Act's goal of protecting

employees from unfair labor practices by making them

whole after wrongful discharge, and by deterring future

violations of the Act. See Golden State Bottling Co. v.

NLRB, 414 U.S. 168, 181-82 (1973). To allow an employer

to evade a reinstatement order by styling the wrongful

discharge of an employee as an “elimination” of her

position would deny that employee a meaningful

remedy and actually thwart the goals of national labor

policy.

The situation here is distinguishable from that in

NLRB v. Schnell Tool & Die Corp., 359 F.2d 39 (6th Cir.

1966), where this Court refused to enforce a Board

reinstatement order against employers who had sold

their businesses subsequent to violating the Act.

Issuance of an enforcement decree there would have

been a “vain act” because any reinstatement order

would have been ineffective against the successor

employers, whose liability under the Act had not yet

been determined by the Board. Here, the employer

against whom enforcement is sought is the same

employer found in violation of the Act.

14a

Likewise distinguishable is Trico Products Corp. v.

NLRB, 489 F.2d 347 (2d Cir. 1974), where the Second

Circuit refused to order reinstatement of employees

who would have been laid off in any event for

economic reasons. Respondent here admits that the

Union still publishes a newspaper, albeit through an

independent contractor. The fact that an employer may

have hired an independent contractor to do the work of

a wrongfully discharged employee does not preclude

the reinstatement remedy. Fibreboard Corp. v. NLRB, 379

U.S. 203 (1964). See also NLRB v. Jackson Farmers, Inc.,

457 F.2d 516, 518 (10th Cir. 1972).

Respondent further urges that reinstatement would be

improper because of a “basic antagonism’ between

Pennacchini and the union president (Brown).'® In an

election shortly before Pennacchini’s discharge, she

openly and vigorously supported Brown’s opponent for

the union presidency. The union seems to feel that this

conduct precludes the possibility of future harmonious

relations between Pennacchini and Brown, and that

requiring them to work together on production of the

union newspaper would create an intolerable situation.

Circuit Courts have on occasion refused to enforce

reinstatement orders where the employee involved had

shown extreme disloyalty or antagonism toward the

employer. In NLRB v. Bin-Dicator Co., 356 F.2d 210 (6th

Judge that Pennacchini was guilty of misconduct that might

prediude a reinstatement order. The judge considered the chief claim

of misconduct and found the evidence to be “inconclusive.” 210

NLRB at 1193 n 8.

15a

Cir. 1966), this Court denied reinstatement where the

employee had threatened to cause the plant manager to

“spend some time in a wheel chair,” made threatening

gestures at supervisors, and threatened to strike a

foreman with a heavy metal casing.'’ Likewise, in

NLRB v. National Furniture Mfg. Co., 315 F.2d 280,

286-87 n.7 (8th Cir. 1963), the Court refused to order

reinstatement where the employee had shown a

“disrespectful attitude’ toward the employer's general

manager, had made damaging statements to at least one

customer, and had made derogatory remarks about the

personnel manager. And in NLRB v. Valley Die Cast

Corp., 303 F.2d 64, 66 (6th Cir. 1962), we denied

reinstatement to an employee who with threats

prevented maintenance men from entering a company

building. '?

These cases involved acts of employee antagonism far

more flagrant than that alleged here. Pennacchini did

not threaten union officials and in no way disrupted

11 In Bin-Dicator, the Court gave “special examination” to the

reinstatement order because the Board order conflicted with that of

its trial examiner. 356 F.2d at 215. Here, the Board and its

Administrative Law Judge are in complete agreement.

12 See also NLRB v. Apico Inns of Calif., Inc., 512 F.2d 1171,

1175-76 (9th Cir. 1975), and Oi, Chemical & Atomic Workers Union v.

NLRB, 547 F.2d 575, 592-93 n. 19 (D.C. Cir. 1976), cert. den., 45

U.S.L.W. 3806 (1977) (both denying reinstatement).

16a

her employer's work. Of course, Pennacchini’s prior

opposition to Brown’s re-election is likely to cause some

friction if she resumes her former position. We are,

however, bound to give ‘special respect’ to the Board’s

choice of remedy, based on its judgment as to how

effectively to promote the goals of the Act. NLRB v.

Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969). As

noted by the First Circuit in a similar case, the Board

‘‘may have believed that a less complete remedy would

leave doubt as to whether the Act fully protected the

rights of employees.”’ Trustees of Boston Univ. v. NLRB,

548 F.2d 391, 393-94 (1st Cir. 1977). Under these facts,

we cannot say that the reinstatement order constituted

an abuse of discretion. *?

We have considered all of Respondent's other

arguments and find them to be without merit.

We find that there is substantial evidence to support

the Board’s findings, accordingly enforcement is

GRANTED.

13 See NLRB v. Miller Redwood Co., 407 F.2d 1366, 1370 n.2 (9th

Cir. 1969), and NLRB v. Yazoo Elec. Power Assoc., 405 F.2d 479, 480

(5th Cir. 1968) (both enforcing reinstatement orders).

17a

DECISION AND ORDER

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

(Retail Store Employees Union, Local 876, et al.

and Anna M. Pennacchini — Case 7-CA-10748)

On February 20, 1975, Administrative Law Judge Ivar

H. Peterson issued the attached Decision in this

proceeding finding that the Respondent violated Section

8(a) (1) and (4) of the Act. Thereafter, the Respondent

filed exceptions and a supporting brief.’ The General

Counsel filed a reply brief to the Respondent's

exceptions and brief, and appended thereto his brief to

the Administrative Law Judge. Whereupon, the

Respondent filed a motion to strike the General

Counsel's reply brief, and a supporting brief. In the

latter, the Respondent asserts, inter alia, that the

General Counsel's reply brief raises new issues on

which no cross-exceptions were filed. However, a fair

reading of the Respondent's own exceptions shows that

the issue was raised at least as a defense, and we

perceive no material departure from our own rules and

regulations, as alleged. Therefore, we find no merit in

the Respondent's motion to strike.

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 pai ©

! The Respondent also filed a motion requesting oral argument,

which we deny because the record and briefs adequately set forth

the parties’ positions.

219 NLRB No. 187

18a

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 his recommended Order.

The Administrative Law Judge found, and we agree,

that the Respondent violated Section 8(a) (1) and (4)

2 The Respondent has excepted to certain credibility findings

made by the Administrative Law Judge. It is the Board’s established

policy not to overrule an Administrative Law Judge’s resolutions

with respect to credibility unless the clear preponderance of all of

the relevant evidence convinces us that the resolutions are incorrect.

Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d

362 (C.A. 3, 1951). We have carefully examined the record and find

no basis for reversing his findings.

We also find no merit in the Respondent's exception to the

Administrative Law Judge's ruling that Pennacchini’s statement,

given to a Board agent shortly after she filed charges, be rejected but

made a part of the record as a rejected exhibit. The Respondent

the statement for purposes of impeaching Pennacchini's

testimony, and also as an admission against interest. Finding no

discrepancies in the witness’ testimony and her affidavit, the

Administrative Law Judge rejected the proffer, but preserved the

record by receiving the document as a rejected exhibit. While so

tentatively ruling on the matter, the Administrative Law Judge gave

the Respondent the opportunity to “offer proof testimonially or

narratively as he chooses” to dissuade him.

We find it unnecessary either to affirm or reverse the

Administrative Law Judge's ruling, since in our view of the case

Pennacchini’s testimony, where disputed, is not dispositive of our

conclusion that Respondent violated Sec. 8(a) (1) of the Act. We find

Brown’s termination letter to Pennacchini dated November 14, 1973,

to reflect clearly that at least a substantial part of Respondent's

motivation to discharge Pennacchini was because = ie

“conveniently ‘forget’ those facts which you had iously me

about ray ny _. . Accordingly, = find ‘hat, regardless of

whether the Administrative Law Judge erred in his ruling,

Respondent was not prejudiced thereby in the presentation of its

defense.

19a

of the Act by discharging Anna Pennacchini’ “because

she refused to appear voluntarily as a witness in the

unfair labor practice proceeding involving a former

fellow employee (Barbara Frazier), on the ground that

she had no direct knowledge of the matters about

which she was to be questioned.” This conclusion is

supported by the record, including Pennacchini’s

credited testimony. Therefore, we find no merit in the

Respondent's contention that she was not requested to

testify, because such an assertion is contrary to her

credited testimony.

In addition, the Respondent asserts that its attorney

acted in furtherance of sound professional discretion in

not compelling Pennacchini’s testimony, and that the

instant allegations of 8(a) (1) and (4) misconduct cannot

be based upon such a decision. But we do not question

counsel’s professional judgment any more than we have

any reason to believe that counsel played a part in the

discharge. Rather, at issue here are the reasons for the

discharge given by the Respondent, through its chief

executive officer, Horace Brown. Thus, on November

14, 1973, Pennacchini was handed a letter, signed by

Brown, stating in part that she was being terminated

for her “extraordinary disloyalty” because “you [did]

conveniently ‘forget’ those facts which you had

previously told me about Mrs. Frazier, which had in

3 The Administrative Law Judge found that Pennacchini was an

employee within the meaning of the Act. We agree for the reasons

he stated. Moreover, we note that Pennacchini’s alleged

“managerial” status had drastically changed in the months

preceding her discharge which further weakens the argument that

she enjoyed such special status.

20a

part influenced my decision to terminate her.” It is

abundantly clear that Pennacchini’s discharge was

motivated, at least in part, by her refusal to cooperate

with the Respondent at the October 16 meeting when,

in the presence of Brown and the Respondent's counsel,

she disclaimed firsthand knowledge of Frazier’s alleged

shortcomings and indicated further that “I know you

would not want me to testify to something | did not

personally observe.”

Pennacchini may have been wrong in her assessment

of the value of her testimony and her competence as a

witness. Although her unsigned, unsworn statement,

taken by the Respondent in April, tends to support her

assertion in this regard, we need not decide that issue.

On the other hand, we cannot say she acted with

malice. In any event, as the Administrative Law Judge

noted, the Respondent could have lawfully tested this

assessment and compelled the testimony of this

reluctant witness, but it failed to do so. Instead, as an

act of reprisal the Respondent discharged her for lack of

cooperation. Indeed, as we read the discharge letter and

the record in this case, only if Pennacchini were

unscrupulous could she have avoided the opprobrium

of “extraordinary disloyalty,’ and the penalty it carried.

In these circumstances, we find that the Respondent

violated Section 8(a) (1) and (4) of the Act. The Act

protects employees from discrimination because they

choose to aid a fellow employee by giving testimony in

an unfair labor practice proceeding. See Local 933,

United Automobile, Aerospace and Agricultural Implement

Workers of America (UAW), 193 NLRB 223, 234 (1971).

Here we find that this protection also extends to an

employee who, without malice, refuses to give

testimony, voluntarily, against a fellow employee.

21a

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor

Relations Board adopts as its Order the recommended

Order of the Administrative Law Judge and hereby

orders that the Respondent, Retail Store Employees

Union, Local 876, Retail Clerks International

Association, AFL-CIO, Detroit, Michigar., its officers,

agents, successors, and assigns, shall take the action set

forth in the said recommended Order.

Dated, Washington, D.C., Aug. 18, 1975

Betty Southard Murphy, Chairman

John H. Fanning, Member

Howard Jenkins, Jr., Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

22a

DECISION OF ADMINISTRATIVE LAW JUDGE

United States of America

Before the National Labor Relations Board

Division of Judges

Washington, D.C.

(Retail Store Employees Union Local 876, et al.,

Respondent — and Anna M. Pennacchini, An

Individual Charging Party.) Case No. 7-CA-10748

STATEMENT OF THE CASE

IVAR H. PETERSON, Administrative Law Judge: This

case was tried before me on 5 days commencing

October 3, 1974, and concluding on October 11, in

Detroit, Michigan, based upon charges filed by Anna

M. Pennacchini, an individual, against Retail Store

Employees Union, Local 876, Retail Clerks International

Association, AFL-CIO, herein called the Union or

sometimes the Respondent.

On August 5, the Acting Regional Director for Region

7 issued a complaint and notice of hearing. Briefly

stated, the complaint alleged that the Respondent,

through its agent Horace Brown, secretary-treasurer,

terminated the employment of Mrs. Pennacchini

because she assisted a former fellow employee, Barbara

Frazier, “to vindicate her statutory rights in an unfair

labor practice proceeding and by rendering

testimonial evidence to Frazier....” In its answer,

dated August 6, the Respondent admitted certain

allegations of the complaint but denied that it had

engaged in any unfair labor practices.

ee eee ema ———

23a

Upon the basis of the entire record in the case,’

including my observation of the witnesses as they

testified and a careful consideration of the briefs filed

by counsel for the Respondent and counsel for the

General Counsel on November 21 and December 2,

respectively,” I make the following:

FINDINGS OF FACT

I. The Business of the Respondent

The constitution of the International provides that

each month the Respondent, and other unions similarly

situated, pay to the International in Washington, D.C. a

per capita tax on each of the individual member's

monthly dues payments received by the Respondent.

During the year ending December 31, 1973, the

Respondent transmitted in excess of $100,000 in per

capita taxes directly from Detroit, Michigan, to the

International. These facts are admitted by the

Respondent. I find that the Respondent at all times

material has been an employer engaged in commerce

within the meaning of Sections 2(2), (6) and (7) of the

Act. The complaint further alleged that Brown,

secretary-treasurer, and Thomas Lodico, Sr., president,

were supervisors of the Respondent within the meaning

of Section 2(11) of the Act, and agents of the

! The unopposed motion of counsel for the Respondent that the

transcript of record be corrected in certain respects is hereby

granted.

2 By telegraphic order dated November 20, time for filing briefs

was extended to December 2.

24a

Respondent. In its answer, the Respondent denied that

Brown was secretary-treasurer and Lodico president,

but admitted that Brown was president and Lodico was

secretary-treasurer, as in fact was the case. The

Respondent also admitted that it terminated

Pennacchini on November 14, 1973, but denied that

such termination constituted an unfair labor practice.

Il. The Alleged Unfair Labor Practices

The Respondent contends that Pennacchini was not

an employee within the meaning of the Act and, in its

brief, stated that she was terminated because she

allegedly assisted a fellow employee, Barbara Frazier, in

the latter's efforts, as stated in the complaint, “‘to

vindicate her statutory rights in an unfair labor practice

proceeding ... by rendering testimonial evidence to

Frazier in that she told Frazier of the Union’s efforts in

establishing that Frazier had been discharged for

misconduct and she refused to testify at the request of

the Union in said unfair labor practice proceeding.” In

this regard, Respondent's counsel states that the case

was initiated by Pennacchini’s charge that she had been

terminated “in reprisal for her internal political

opposition as an employee-member to the Respondent's

President.’ Further, he points out that the case

‘languished in the Advice Section in Washington

pending the Board’s decision” in the Frazier case * He

3 Retail Store Employees Union, Local No. 876, RCIA, AFL-CIO, 212

NLRB No. 31 (1974), which, it is contended, “itself was held to be

governed by the Board’s intervening decision in’ Retail Clerks

Union, Local 770, RCIA, AFL-CIO, 208 NLRB No. 54 (1974). It is

asserted that in both of these cases, “the Board repudiated the

theory of Advice and of the General Counsel that a charge against a

union qua employer which alleged discriminatory reprisal by it on

account of internal union political activities by member-employees

stated a Section 7 right or a Section 8(a) violation.”

25a

also calls attention to the fact that, after the decision of

the Board in the Frazier case, the present proceeding

continued to pend in the Advice Section and that, in

the meantime, the charging Party amended her charge,

near the end of the 6-month limitation period, “not to

add what ultimately became the gravamen of this

complaint ... but that, ‘A further reason for the

discharge was Anna Pennacchini’s cooperation with the

National Labor Relations Board in the period of time

prior to her discharge.’ It is further asserted that,

when the complaint eventually issued, it contained

allegations of violations of Section 8(a) (1) and (4), ‘not

on any of the grounds asserted by the Charging party

either in her original or amended charge, but because

Pennacchini had allegedly assisted Barbara Frazier by

‘rendering testimonial evidence to Frazier in that she

told Frazier of the Union’s efforts in establishing that

Frazier had been discharged for misconduct’ and because

Pennacchini ‘refused to testify at the request of the

Union in said unfair labor practice proceeding.’ ”

Finally, counsel argues that “by the time of and during

the trial,” counsel for the General Counsel “‘had

abandoned all grounds except that Pennacchini had

allegedly been discharged for refusal to testify on behalf

of the Union in the Frazier case.’’ Counsel asserts that

the latter allegation “is patently untrue, incredible,

unsupported by the record and unsupportable by law”

and that “despite some cosmetics, the General Counsel

is apparently still trying this case in disregard of the

Board’s holdings” in prior cases,* and “that in an action

against a union qua employer, the rights of the charging

party and the responsibilities of the respondent are to

be measured as in conventional” proceedings under

+ Counsel refers to the two cases cited in footnote 3, supra.

26a

Section 8(a) against other employers. Thus, counsel for

the Respondent states that he will demonstrate that

counsel for the General Counsel has not sustained his

actual burden of proof, has failed to state or prove a

legal cause of action, and, finally, that a backpay and

reinstatement order ‘“‘would be contrary to law.”

Counsel for the General Counsel asserts that the

Respondent violated Sections 8(a) (1) and (4) by

terminating Pennacchini for refusing to testify

regarding certain matters on behalf of the Respondent

in an unfair labor practice hearing and that, moreover,

the Respondent violated the same sections by

discharging Pennacchini ‘for disclosing certain

information to the alleged discriminatee in that unfair

labor practice case, which information aided the alleged

discriminatee in’ her preparation for trial, and that

Pennacchini was merely a rank-and-file employee,

rather than a managerial employee as contended by the

Respondent.

Ill. Discussion

Pennacchini was originally hired by the Union in

1967. By her own choice, she left on two occasions and

began her last period of employment in August, 1969.

Her job then was to proofread collective-bargaining

agreements, prepare flyers and handbills as well as

articles for the Union’s newspaper, and, in addition,

make photographic leyouts for the use of union

organizers and representatives. In addition, she

occasionally ran the duplicating machine in the office.

When she went to work, her immediate supervisor was

Hershel Womack, the chief executive officer of the

Union, who later was succeeded by Brown. Pennacchini

Beirer

27a

testified that she had nothing to do with the policies

concerning what should go into the paper and that she

did not attend any strategy meetings of union officials. —

In the 1973 campaign for the election of officers of the

union, Pennacchini supported her ex-husband, Ray

Soncrant, and in that regard she prepared and ran off

campaign literature in his behalf. In connection with

mailing out the leaflets, Pennacchini utilized a

typewriter which she had at her home, that had been

purchased and paid for by Soncrant and delivered to

her home.

Following the mailing of certain handbills, Lodico

called her into his office. He showed her a handbill that

related to the question of members voting for dues

reduction, and compared it with a piece of copy that

she had prepared for another matter and, so she

testified, “mentioned that the type was identical and it

appeared that it was done on the same machine.” She

told him that that was not the case. A few days later,

toward the end of August, Brown called her into his

office; Lodico was present. Brown asked if she would

do some work on his campaign but stated that it would

be illegal for that to be done at the office and

mentioned that perhaps she had equipment at her

home. She stated she was not interested. Following that

meeting, so Pennacchini testified, matters “changed in

the office.” She related that she ‘‘no longer had any

duties to perform,” and that when she endeavored to

solicit work she was told that the matter would be

considered but she was not given any work other than

at the request of organizers. About the last week in

August when she came to the office her telephone had

been disconnected.

28a

Frazier’s husband, a former business representative of

the Union, was running for office during the 1973

election campaign. Frazier was terminated in about

October, 1972. When Frazier’s case was about to go to

trial, Mary Ellen Tereschco, Brown’s personal secretary,

told Pennacchini she should prepare for Frazier’s

hearing; however, Pennacchini stated that she would

not be there as she was going on vacation, which had

been scheduled on two occasions; however, she did not

go on vacation. Brown spoke to Pennacchini about the

Frazier case on more than two occasions. In January or

February, 1973, some three or four months after Frazier

had been terminated in October, 1972, he told her to

type up a list of alleged violations committed by

Frazier. Pennacchini testified that she had never

personally observed any of the alleged violations

committed by Frazier but that Brown mentioned that

Frazier had had her hair done and went shopping “on

company time.”

On October 15, Tereschco handed Pennacchini a

document informing her that she should appear at the

office of counsel for the Respondent at 2 p.m. the

following day. She did so and found that Brown and

Soncrant were also there. Counsel for the Union handed

her the list that she had prepared at Brown’s request

and asked her, as she testified, ‘if she was prepared to

testify at Barbara Frazier’s trial the following day, to

substantiate these alleged violations.” In response, she

said she had “never personally observed any of these.”

She was not called to testify in the Frazier hearing.

When Brown handed Pennacchini her termination

letter, dated November 14, Brown told her, after she

read the letter, that the Union, as she supposedly knew,

had been phasing out her work. She replied that she

was not aware of that matter.

29a

Pennacchini testified that she spoke to Frazier on

several occasions before October 17, and placed the

time as beginning in the latter part of August and until

the hearing. She related that Frazier called her at her

home and expressed surprise at finding out that

someone other than her husband intended to enter the

race for president of the Union. According to

Pennacchini, Frazier stated that the hearing in her case

had been scheduled and that she was sure that

Pennacchini would appear against her. To this,

Pennacchini replied that she would not appear. She did

not do so.

In his brief, counsel for the Respondent ably argues

that Pennacchini was a managerial employee and,

moreover, that her termination came about because her

position was eliminated. He further contends that

whether or not Pennacchini was a managerial

employee, it is not a violation of the Act to terminate an

employee because of his alleged refusal to testify and,

in addition, that Pennacchini’s unauthorized action in

divulging confidences of her employer and its attorney,

including the mailing list of the Union, was

unprotected under the Act. We will first consider the

contention regarding Pennacchini’s managerial status.

We have set forth above the essential facts relating to

the nature of the work performed by Pennacchini for

the Respondent, and it seems unnecessary to repeat

these findings. Webster's Third International Dictionary

(Unabridged) defines the term ‘manager’ as “one who

manages,” that is, ‘‘a person that conducts, directs, or

supervises something’ or ‘a person whose work or

profession is the management of a specified thing (as a

business, an institution, or a particular phase or activity

within a business or institution).’’ The term

30a

‘managerial’’ is defined as “of, relating to, or

characteristic of a manager.’’ Counsel for the

Respondent, in his brief (p. 52 et seq.) argues that

Pennacchini was the de facto editor of the Union's

newspaper, was in charge of its publications and public

relations generally, and acted as the special

representative of Brown. Counsel concedes that the

chief executive officer was the titular editor, pursuant to

a requirement of the constitution of the International

and, as such, was responsible for the formulation of the

policies of the Union and its newspaper; however, he

argues that “the fact is that the day-to-day operation of

the newspaper was by Pennacchini until two or three

months before her termination, when Harold DeLong,

as editorial consultant became the successor editor, as an

independent contractor.” Referring to the substantial

number of newspaper exhibits placed in the record,

counsel argues that the responsibility of the editor was

“to implement the Union's policies, to ‘mirror the

image’ of the Union and its officers . . . and to serve as

their ‘alter ego.’ It is urged that Pennacchini, on

rather frequent occasions, would consult with the

officers, either individually or together, and that with

regard to the content of the newspaper or leaflets, she

would be acquainted with confidential information.

Conceding that the officers were finally responsible for

the content of articles prepared by Pennacchini and

approved by them, he points out that she and the

officers quite obviously worked closely together in

order to assure that the policy of the Union was

implemented and that the translation of policy into

content was done by Pennacchini alone until the

retention of DeLong in 1973, when she shared such

responsibilities with him until her responsibilities were

eliminated.

3la

Counsel suggests that the contention by counsel for

the General Counsel “that Pennacchini was some kind

of a ‘clerical’ whose responsibilities merely involved the

taking of photographs is absurd.” In this regard, he

poirts out that at the time she was terminated

Pennacchini was making approximately $275 a week

and was also receiving a $50 per week expense

allowance, a rate of compensation comparable to that of

the remaining “staff’’ representatives of the newspaper,

namely, the business representatives of the Union who

also received a weekly expense allowance and who,

along with Pennacchini, were required to atrend the

membership meetings of the Union as a condition of

employment. He points out that Pennacchini’s pay scale

was approximately $100 above that of hourly-rated

employees in the office and clerical bargainining unit

represented by Local 10, who worked under a union

shop agreement, of which unit Pennacchini had been a

member several years earlier. She had withdrawn from

that unit when she ceased to be a clerical employee.

Counsel also calls attention to the fact that Pennacchini,

as a witness in an arbitration case, identified her

responsibility as “‘publications.’’Counsel contends that

it is ‘‘an insult to the intelligence of one evaluating this

record to suggest that Pennacchini was a menial

employee without significant responsibility or

authority” or “to suggest she could have fulfilled her

responsibility without consultation with the executive

officers or without serving the purpose of reflecting

their policy viewpoints.” (Br. p. 54).

Counsel for the Respondent emphasizes that he

makes no claim that Pennacchini was a supervisory

employee but that the contention upon which he relies

is that ‘she was an employee so closely identified with

management that she could not be regarded as a rank

and file employee subject to Section 7 protections.”’ He

32a

points out that all office and clerical employees were

required to be members of the bargaining unit

represented by the Office Employees Union and that, if

Pennacchini had been a clerical employee, she would

have been part of that unit. All other employees of the

Union were required, as a condition of employment, to

be members of the Union which, however, was not

their bargaining representative; this was true of

business agents and of Pennacchini, who was regarded

as a special representative, and of certain maintenance

employees. He maintains that prior decisions held that

“such required membership as a condition of

employment is irrelevant to a charge against a union

qua employer under the Act.’5 He also cites the

rationale employed by the General Counsel and the

5 In addition, he refers to the Board’s decision in Retail Store

Employees Union, Local 428, 163 NLRB 431 (1967), where the Board

stated (at pages 423-3):

A union-employer, just as any other employer, may

impose on its employees requirements reasonably related to

the proper performance of their jobs. Here, for example, a

field representative, in conducting the Respondent's

business, might be asked to explain how the Respondent

functions as a collective-bargaining representative, or why

it is desirable for workers to organize. It is clearly proper

for the Respondent to be concerned about not hiring

employees who do not adequately understand or agree with

the Respondent's general goals, as well as its specific

methods of operation and ways of achieving its goals to the

extent such understanding is necessary for the performance

of their duties. We deem it not unreasonable, therefore, for

a union-employer normally to require its employees to

attend its meetings and fulfill certain other obligations of

regular union membership. Indeed, in this sense and

because of the undesirability of a per se rule in this critical

area of labor relations, we believe that a union-employer's

requirement that its employee belong to it, pay dues, fees,

and assessments to it, and attend its meetings need not, in

and of itself, violate the Act.

33a

Advice Section in connection with the termination of

Curtis Frazier, a business agent of the Union, and the

husband of Barbara Frazier. In that case, the Agency

expressed the opinion that a business representative

was one “who implemented union policy” and that, in

consequence, the union as the employer was “viewed

as privileged to remove him from employment in such a

position involving, as it did, the carrying out of the

Employer's ‘management’ policy.” Subsequently, the

Advice Section, in connection with the Barbara Frazier

case, summarized the previous memorandum

concerning Curtis Frazier as holding that a complaint

was not there warranted “based on his refusal to

support the newly-elected official, because his position

in the Union hierarchy, that a business agent, was

considered to be one which effected Union

‘management policy,’ and from which the Union could

demand undivided loyalty.” Accordingly, Respondent's

counsel states that if, as counsel for the General Counsel

in that proceeding conceded with respect to a number

of business agents of the Union, namely, that they were

involved in the implementation of management policy

of the Union and therefore owed undivided loyalty to

the Union, it necessarily follows that “the Union can

insist upon the same and more from Pennacchini who

was involved in confidences which not even the

business agents shared, and who quite clearly was the

‘alter ego’ of the Union’s executive officers, expressing

herself in their names.”’

In the view of counsel for the Respondent, a decision

of the Court of Appeals for the Tenth Circuit, Star Eagle

Beacon Publishing Co., Inc. v. N.L.R.B., 480 F.2d 52

(1973), ‘‘emphasizes the validity of these views.” There,

the Court, in refusing to enforce an order of the Board,

held that an editorial writer, who was responsible to an

34a

editorial page editor, who in turn was responsible to

the editor and publisher of the newspaper, “‘was

nevertheless an active participant in ‘formulating,

determining and effectuating’ the newspaper's

journalistic policies, and therefore [was] a managerial

employee.” In sum, counsel suggests that without

regard to ‘the label attached to her, Pennacchini was so

closely identified with the executive officers and

policies of the Union that she owed a responsibility of

undivided loyalty, even beyond the loyalty which may

be exacted of any employee,’ and that, as a managerial

employee or “as one otherwise so closely identified

with management, she would not be entitled to Section

7 rights or the beneficiary of Section 8(a)

responsibilities.”

In a more recent decision involving the issue of

managerial employees (N.L.R.B. v. Bell Aerospace Co.

Div. of Textron, Inc., U.S. , 94 S Ct. 1767

(decided April 23, 1974)), the Court made the following

observations:

Following the passage of the Taft-Hartley Act,

the Board itself adhered to the view that

‘managerial employees” were outside the Act. In

Denver Dry Goods, 74 N.L.R.B 1167, 1175 (1947)

assistant buyers, who were required to set good

sales records as examples to sales employees, to

assist buyers in the selection of merchandise,

and to assume the buyer's duties when the latter

was not present, were excluded by the Board on

the ground that ‘‘the interests of these employees

are more closely identified with those of

management.” The Board reiterated this reading

of the Act in Palace Laundry Dry Cleaning

Corp., 75 N.L.R.B. 320, 323 n. 4 (1947):

2 <<

35a

“The determination of ‘managerial,’ like

the determination of ‘supervisory,’ is to

some extent necessarily a matter of the

degree of authority exercised. We have in

the past, and before the passage of the

recent amendments to the Act, recognized

and defined as managerial employees,

executives who formulate and effectuate

management policies by expressing and

making the operative decisions of their

employer, and have excluded such

managerial employees from bargaining

units. We believe this Act, as amended,

contemplates the continuance of this

practice.”’ (Citations omitted.)

The Board’s exclusion of ‘‘managerial

employees” defined as those who “formulate

and effectuate management policies by

expressing and making operative the decisions

of their employer,” has also been approved by

courts without exception ....

In sum, the Board’s early decisions, the

purpose and legislative history of the

Taft-Hartley Act of 1947, the Board’s subsequent

and consistent construction of the Act for more

than two decades, and the decisions of the

courts of appeals, all point unmistakably to the

conclusion that ‘““managerial employees” are not

covered by the Act. We agree with the Court of

Appeals below that the Board “is not now free”’

to read a new and more strictive meaning into

the act. 475 F.2d, at 494.

36a

We turn now to a consideration of the contention of

the Respondent that it is not a violation of the Act to

terminate an employee because of his alleged refusal to

testify. As stated above, on October 16 Pennacchini

appeared at the office of counsel for the Respondent as

requested. She was there shown a list, which she had

prepared in January or February at Brown’s request, of

alleged violations committed by Frazier. Pennacchini

testified that counsel for the Union asked her “‘if she

was prepared to testify at Barbara Frazier’s trial the

following day, to substantiate these alleged violations.’

She stated, in response that she had not “personally

observed any of these.” She was not called to testify

and, so far as appears, she was not subpoenaed to

appear at the Frazier hearing.® Counsel for the General

Counsel argues that Pennacchini’s refusal to testify was

privileged under the Act inasmuch as she “had the

right not to testify in 2 manner that she thought to

be false.’ He urges that since Section 8(a) (4) ‘seeks to

protect the integrity and efficacy of the Board's

processes, it appears to the General Counsel that an

¢ Pennacchini testified that when she was called into the office of

counsel for the Union, he asked her “if | was prepared to testify at

Barbara Frazier’s trial, the following day, to substantiate these

alleged violations. And | said I never personally observed any of

these.” Upon further inquiry by counsel, Pennacchini related that

she again said she had not observed the incidents contained on the

list and stated that “I know you would not want me to testify to

something | did not personally observe.”’

37a

employee's refusal to testify falsely must be as much

protected as the act of testifying.’”’

Attorney Sachs, counsel for the Respondent, testifiec

that he interviewed Pennacchini and other employees of

the Union on April 6, 1973, in regard to the Frazier case

which was then scheduled to be heard on or about

April 25. In addition, on that occasion, he had a private

interview with Pennacchini. He testified that

Pennacchini referred to the fact that her office was

situated at a point where she could observe pedestrian

traffic going by her office and that she observed that

various of the checkers, including Frazier, would come

to staff meetings in the afternoon in clothes different

from those they had worn in the morning, from which,

she concluded, that they had gone home on work time

in order to change clothes. In addition, he related that

Pennacchini told him that Frazier and other checkers

had kept hairdresser appointments on work time and

that she had informed Brown of reports made to her, of

which she did not have personal knowledge, prior to

the time Frazier was terminated. Sachs further related

7 In support thereof, he cites Commerce Concrete Company, Inc.,

197 NLRB 658 (1972), in which the Trial Examiner rejected a

contention that the alleged discriminatee was not protected by

Section 8(a) (4) because he ‘did not actually testify or otherwise

adversely affect Respondent.” In this regard, the Trial Examiner

concluded that Section 8(a) (4) protects employees “against

discrimination for giving information informally in connection with

a representation proceeding. While the record does not show what

Smith [the alleged discriminatee] actually did in connection with the

representation proceeding beyond appearing in response to a

subpoena and sitting with counsel,” he previously had found that

the Repondent “suspected that he gave the Union or the Board

information helpful to the Union’s position and adverse to

Respondent's, and that that was the reason Respondent

discriminated against” him.

38a

that he requested Pennacchini and each of the other

persons interviewed on April 6 to prepare a statement

concerning those matters of which they had knowledge.

He received such a statement from Pennacchini, which

substantially confirms his testimony given in the

present proceeding. The hearing in the Frazier case did

not, in fact, begin until mid-October. Shortly before the

hearing Sachs again interviewed Pennacchini in the

presence of Brown and Soncrant. He related that he

questioned her about the matters that they had gone

over in the April meeting, and stated that Pennacchini

told him “that she really hadn’t been referring to

Barbara Frazier, she was referring to various of the

other checkers’’ concerning hairdresser appointments

and the like. With regard to alleged conversations she

had had with Brown prior to Frazier’s termination, in

particular about the list she had made, she responded

“that she really was without personal knowledge, or

that I had misunderstood what she had previously told

me. Or that she had only heard hearsay, or that I was

confused and she was talking about other people, or

she made reference to other checkers and so on.”

Neither Pennacchini nor Soncrant was called to testify

in the Frazier case. Sachs testified that he dealt with

Pennacchini “from time to time ... as editor of their

newspaper in connection with the public relations work

for the union, including the preparation of organizing

leaflets, campaign material, communications to

members, those whom the union sought to be

organized; and generally these would relate to her

consulting with me for my legal judgment and counsel

with respect to proposed materials.”

As a witness for the Respondent, Brown testified that

until the present proceeding he had no information or

report of what Barbara Frazier said to Pennacchini or

39a

what Pennacchini said to Frazier concerning the Barbara

Frazier case. He further related that after Pennacchini

was terminated the physical space that she had used

previously was taken over by the legal secretary and the

department was completely eliminated. He also testified

that he had frequent occasion to talk to Pennacchini

about her preparation of the union newspaper and that

she ‘‘generally counseled with me on the preparation of

his [Womack’s] editorial.” He further testified that

Pennacchini prepared articles “entirely on her own,

without counseling with any of the executive officers”,

and that on many occasions Pennacchini would sit in

with himself and other executive officers when an

organizational campaign was in preparation in order to

aid her in composing handbills and other organizational

literature. He also testified that on a number of

occasions he discussed with Pennacchini the

confidentiality of the union’s mailing list. Brown

denied that he told Pennacchini to make up a list of

items that would reflect misconduct on the part of

Frazier although he understood that she had made up

such a list because she had shown it to him.

* There was considerable evidence produced regarding the

preparation, access to and alieged use of the mailing list for

unauthorized purposes. This matter is not dealt with to any

substantial extent in the briefs. 1 have considered it but am of the

view that it is somewhat inconclusive and in any case would not

alter the conclusions I reach.

40a

CONCLUSIONS

With regard to the contention that Pennacchini was a

managerial employee, I am persuaded and find that she

was not. Although she performed duties that placed her

somewhat above the level of other clerical and office

employees, the evidence, on balance, convinces me that

she was not in the managerial category. As we have

seen, she frequently consulted with the executive head

of the Union and, while she exercised considerable

independence of judgment respecting the specific

content of the editorials she wrote on behalf of the head

of the Union, they were subject to discussion with her

superiors before being composed and published.

Nor do I believe that Pennacchini gave false

testimony, as suggested in the brief of counsel for the

Respondent. I have attempted carefully to weigh the

testimony of all witnesses and, from my observation of

them as they testified and a study of the record, I come

to the conclusion that Pennacchini was an essentially

truthful witness. She appeared to pay close attention to

questions put to her and carefully but readily answered.

Accordingly, I conclude and find that the Respondent

terminated Pennacchini because she refused to appear

voluntarily as a witness in the unfair labor practice

proceeding involving a former fellow employee, on the

ground that she had no direct knowledge of the matters

about which she was to be questioned; her presence at

the hearing moreover, was not sought to be compelled

— ee

4la

by subpoena. In these circumstances, I conclude that

her right not to appear was protected by the Act.

Accordingly, I find that the Respondent violated Section

8(a) (4) and (1) by discharging her.

Upon the basis of the foregoing findings of fact and

upon the entire record in the case, I make the

following:

CONCLUSIONS OF LAW

1. The Respondent, Retail Store Employees Union,

Local 876, Retail Clerks International Association,

AFL-CIO, is an employer and a labor organization

within the meaning of Section 2(2), (5) and (6) of the

Act.

2. By discharging Anna M. Pennacchini on

November 14, 1973, the Respondent violated Section

8(a) (4) and (1) of the Act.

3. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning

of Section 2(6) and (7) of the Act.

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 operations

of the Respondent as described in Section I above, have

a close, intimate and substantial relation to trade, traffic

and commerce among the several states and tend to lead

to labor disputes burdening and obstructing commerce

and the free flow of commerce.

BO Sw re 46 Ow ee

mr pe arte

42a

V. The Remedy

It having been found that the Respondent engaged in

unfair labor practices in violation of Section 8(a) (1) and

(4) of the Act, it will be recommended that the

Respondent cease and desist therefrom and take certain

affirmative action designed to effectuate the policies of

the Act. It will be recommended that the Respondent

offer Anna M. Pennacchini immediate and full

reinstatement to her former position, and if not

available, to an equivalent position, without prejudice

to her seniority and other rights and privileges, and

make her whole for any loss of earnings she may have

suffered by reason of the discrimination against her, by

payment to her of a sum of money equal to that which

she would have earned from the date of her discharge

to the date of the offer of reinstatement, consistent with

Board policy set forth in F. W. Woolworth Company, 90

NLRB 289, with interest on backpay to be computed in

the manner set forth in Isis Plumbing & Heating Co., 138

NLRB 716.

Upon the basis of the foregoing findings of fact,

conclusions of law and the entire record in these

proceedings and pursuant to Section 10(c) of the Act, |!

hereby issue the following recommended:?

® In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Relations

Board, the findings, conclusions, recommendations and

recommended Order herein shall, as provided by Section 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.

43a

ORDER

Respondent, Retail Stcre Employees Union, Local 876,

Retail Clerks International Association, AFL-CIO, its

officers, agents, successors and assigns, shall:

1. Cease and desist from discharging or otherwise

discriminating against any employee for testifying or,

absent testimonial compulsion, refusing to testify in

any proceeding before the Board, or 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 which is

deemed necessary to effectuate the policies of the Act:

(a) Offer Anna M. Pennacchini immediate

reinstatement to her former job or, if that job no longer

exists, to a substantially equivalent position, without

prejudice to her seniority and other rights and

privileges.

(b) Make Anna M. Pennacchini whole for any loss

of earnings she may have suffered by reason of

Respondent's unlawful discrimination against her in the

manner set forth in the section of this decision entitled

“The Remedy.”

the Board or its agents, for examination and copying, all

payroll records, reports and all other records necessary

to analyze the amounts of backpay due under the terms

of this recommended Order.

44a

(d) Post at its offices and place of business in

Detroit, Michigan, copies of the attached notice marked

“ Appendix.’’° Copies of said notice, on forms provided

by the Regional Director for Region 7, after being duly

signed by Respondent's representative, shall be posted

by it immediately upon receipt thereof and be

maintained by it for 60 consecutive days thereafter, in

conspicuous places, including all places where notices

to employees and members are customarily posted.

Reasonable steps shall be taken by Respondent to

insure that said notices are not altered, defaced or

covered by any other material.

(e) Notify the Regional Director for Region 7, in

writing, within 20 days from the date of receipt of this

Decision, what steps the Respondent Union has taken

to comply herewith.

Dated at Washington, D. C.

ls! Ivar H. Peterson

Administrative Law Judge

10 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 be changed to read “POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD.”

ca + cat cn

en ee eS a ee

45a

APPENDIX

NOTICE TO

EMPLOYEES and MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

WE WILL NOT discharge or otherwise discriminate against Anna

M. Pennacchini, or any other member or employee, for refusing to

testify in a Labor Board proceeding, when not so required by legal

process.

WE WILL NOT in any other manner restrain or coerce employees

or members in the exercise of any right guaranteed under Section 7

of the Act, including the right to refrain from engaging in any or all

of the activities guaranteed thereunder, except to the extent that

such right may be affected by an agreement requiring membership

in a labor organization as a condition of employment, as authorized

in Section 8(a) (3) of the Act.

WE WILL offer immediate reinstatement to and make whole Anna

M. Pennacchini for any loss of earnings she may have suffered by

reason of our discrimination against her.

RETAIL STORE EMPLOYEES UNION,

LOCAL 876 , RETAIL CLERKS

INTERNATIONAL ASSOCIATION, AFL-CIO

(Labor Organization)

Dated By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days from the date of posting and

must not be altered, defaced, or covered by any other material. Any questions

og Ys notice or compliance with its provisions may be directed to the Board's

Office, Book i 1249 Washington Boulevard, Detroit, Michigan 48226,

Telephone (313) 226-3244.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.