Petition for Writ of Certiorari — United Food & Commercial Workers International Union Local 1357 v. National Labor Relations Board

3 4 a

‘. ’

«} l 9 Supreme Court, U.S,

OBezS FILED

FEB 4 1986

No JOSEPH F. SPANIOL, JR.

isis CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1986

NATIONAL LABOR RELATIONS BOARD.

Petitioner

vs

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION LOCAL 1357,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Bernard N. Katz

Basil L. Merenda

MERANZE AND KATZ

12th Floor Lewis Tower Building

Philadelphia, PA 19102

(215) 346-4183

Attorneys for Respondent

PACKARD PRESS LEGAL DIVISION. 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000 «#28 =

QUESTIONS PRESENTED

Where General Counsel of the National Labor Re-

lations Board fails to meet the threshold burden of a

prima facie showing of unlawful discrimination and

where Respondent affirmatively establishes that the

charging party would have been fired for permissible rea-

sons regardless of purported protected activity, can there

be a finding that Respondent’s conduct was violative of

the Act?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED « oi. cs, ee i

TABLE OF CITATOING. 22... 0k ee iv

OPINIONS BELOW...............e0se000:: a

JURISGDNC TION oo hts ee ee 2

STATUTES INVOLVED .........:. poe pheno 3

STATEMENT OF THE CARE. .sca6ee re 4

REASONS FOR GRANTING THE WRIT........ 7

I. The Decision by the Third Circuit is Contrary

to the Decision of this Court.............. Pen

A. Substantial Evidence on the Record as a

Whole Indicates That the General Counsel

of the National Labor Relations Board

Failed to Meet the Threshold Burden of

A Prima Facie Showing that Protected

Conduct was a Motivating Factor in

the Respondent's Decision to Fire the

Crievant.. 66 on cs Oe eee 4

B. Substantial Evidence on the Record Con-

sidered As a Whole Indicates that the Griev-

ant Would Have Been Fired tor Permissible

Reeeeewe .. i... kes St ce ee eee 12

CONCLUSION... ..co eee ee eee 16

APPENDIX “A’. Decision of Administrative Law

Judge Ladwig dated October 27. 1983 finding

that Respondent engaged in unfair labor prac-

ROR. co oe we i ee ia

APPENDIX “B”’. Decision and Order of the National

Labor Relations Board dated December 1-4.

1984. attirming Judge Ladwig’s ruling. ....... 28a

TABLE OF CONTENTS—( Continued }

Page

APPENDIX “C”, Order of the Third Circuit dated

November 6, 1985, enforcing the National La-

bor Relations Board’s Order ................. 33a

APPENDIX “D”, Order of the Third Circuit dated

December 4, 1985, denying Petition for rehear-

mn oy cre Cour in banc ........:.......... , 35a

APPENDIX “E”, Statutory Provisions Involved... .. 36a

APPENDIX “F”, Relevant Testimony

ill

TABLE OF CITATIONS

Page

EI. Dupont v. NLRB, 724 F.2d 1061 (3d Cir.

SEY ook ok Ghia aed ee Cee Re te hes

Graham Architectural Products Corp. v. NLRB, 697

P.O O04, SS7 CP Cie. PRE). occ sac knnsce 8

Mt. Healty City School District Board of Education

v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed. 2d

a

SEEN aa eee ee ee ee eS 7

NLRB v. American Art Industries, Inc., 415 F.Supp.

po Se ee ree rer rene wr re 8,9

NLRB v. Craw, 565 F.2d 1267 (3d Cir. 1977)... 8, 12

NLRB v. Electric City Dyeing, 178 F.2d 980 (3d Cir.

PN ea ok Rr ee TERR EN Sires 10

NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421

PS WEE vane Sareea en uema eae 9

NLRB v. Jacob E. Decker & Sons, 569 F.2d 357 (Sth

Ce ROME Cain c hk whan e ae aD Cee ee 12

NLRB v. Moore Business Forms, Inc., 574 F.2d 835

Pe ee PIDs Co ae Ci a eae en 8

NLRB v. National Fixture, Inc., 574 F.2d 1305 (Sth

Sa SER ea ay ac ee aa ee etacn eee ees 8,13

NLRB v. Randle-Eastern Ambulance Service, Inc.,

~ ee By iat Ee A, } rere 8, 12

NLRB v. Transportation Management Corp., 103

S.Ct. 2469, 77 L-Ea. 20 G67 CISSS) « . ..4 x... 7

United Dairy Farmer Co-Op Ass’n v. NLRB, 633

Foe Wee Ce CE, BRO ins Saks pak awaits 10

Universal Camera Corp. v. NLRB, 340 U.S. 474, 71

S.Ct. 456, 95 Lifd. 20 456 (9951)... «2.2... 8

Wright Line, Inc., 251 NLRB 1083, 105 LRRM

1169 (enforced) 662 F.2d 899 (1980) ........ 7.8

TABLE OF CITATIONS— Continued )

All Writs Act, as amended, 28 U.S.C. 1651(a)..... 3

National Labor Relations Act. as amended. 61 Stat.

136 et seq.. 29 U.S.C. §157, 158(a\1) and

PMR tay Satay we eRe 3

National Labor Relations Act.

Me Gs i UA sess 6 one ken deacancne 3

29 U.S.C. 151, et seqg., §8(ay(1) & (3)........ 2

29 U.S.C. §157, 158(a\(1) & 158(aV3)....... 3

ee Bsa. BD BOING) 5 6.556 bikes ce ee. 3

29 U.S.C. 6151, et seq., §10(e).............. 8

ee Wt SE Ek occ cada swe cn une 3

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Term. 1986

NATIONAL LABOR RELATIONS BOARD,

Petitioner

..

UNIPED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION LOCAL 1357.

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

United Food and Commercial Workers International

Union Local 1357, Respondent. respectfully pravs that

this court issue a writ of certiorari to review the decision

of the United States Court of Appeals tor the Third Cir-

cuit entered in the above case on December -}. 1985.

That court denied Respondent's request for rehearing in

banc of a decision by a three judge panel entering a judg-

ment granting the application for enforcement of an or-

der of the National Labor Relations Beard issued against

Respondent and denving Respondent. Local 1357's

cross application tor review of said order. The order in

question found that Respondent. Local 1357. violated

2

Sections 8(a)(1) and 8(a)(3) of the National Labor Re-

lations Act, 29 U.S.C. Section 151, et seq. by discharging

an employee, Elizabeth Murphy, for engaging in pro-

tected, concerted strike activity.

OPINIONS BELOW

This petition results from a decision by a three judge

panel of the United States Court of Appeals for the Third

Circuit which entered a judgment without opinion

granting the application for enforcement of an order of

the National Labor Relations Board issued against Re-

spondent. The decision also denied Respondent, Local

1357's cross application for review of said order which

found that Respondent, violated Sections 8(a)( 1) and (3)

of the National Labor Relations Act, 29 U.S.C. Section

151, et seq. by discharging an emplovee, Elizabeth

Murphy, for engaging in protected, concerted strike ac-

tivity.

The Respondent's cross application for review re-

quested the circuit court to deny enforcement and va-

cate, in whole, said order because the National Labor

Relations Board’s determination that the Respondent

committed an unfair labor practice by dismissing the

charging party was not supported by substantial evi-

dence on the record as a whole. In chronological order.

the relevant orders and decrees by the Third Circuit and

National Labor Relations Board are as follows:

i. An order issued on October 27, 1983 by Ad-

ministrative Law Judge Marion C. Ladwig, finding

that the United Food and Commercial Workers Lo-

cal 1357 engaged in an unfair labor practice in vio-

lation of Section 8(a)1) of the National Labor

Relations Act by discharging Elizabeth Murphy for

engaging in protected, concerted strike activity ( Ap-

pendix A, infra P.la)

2. A decision and order issued on December 14.

1984, by a three member panel of the National Labor

Relations Board, which affirmed the decision of the

Administrative Law Judge Marion C. Ladwig in this

case. (Appendix B, intra P.28a).

3. A judgment order. entered on November 6.

1985, by a three judge panel of the United States

Court of Appeals for the Third Circuit which granted

the National Labor Relations Board’s application for

enforcement of the order issued against Respondent.

United Food and Commercial Workers Local 1357

and denied Respondent, United Food and Commer-

cial Workers Local 1357's cross application for re-

view of that order. (Appendix C, infra P.33a).

4. An order entered on December 4. 1985 bv the

United States Court of Appeals tor the Third Circuit

which denied Respondent's request for a rehearing

in banc of the above captioned case. (Appendix D.

infra P.35a).

JURISDICTION

The jurisdiction of this court is invoked under 28

U.S.C. Section 1254¢ 1).

In the event this court determines that the issuance

of a writ other than certiorari might better aid the juris-

diction of this court and the administration of justice. the

Respondent also invokes the jurisdiction of this court un-

der the All Writs Act. as amended. 28 U.S.C. Section

165 1a).

STATUTES INVOLVED

This case involves the interpretation and application

of the following statutes: Sections 7. 81a 1) and (3) of

the National Labor Relations Act. as amended. 61 Stat.

136 et seq.. 29 U.S.C. Sections 157. 158(a1) and

158(a\3). (Appendix E. intra P.36a)

STATEMENT OF THE CASE

This petition seeks review of a decision by the Third

Circuit entering judgment which granted the applica:

tion for enforcement of the National Labor Relations

Board’s Order charging the Respondent with commit-

ting an unfair labor practice by discharging emplovee.

Elizabeth Murphy.

A complaint was issued on February 10, 1982 and a

hearing was held in this matter before an administrative

law judge on September 16 and 17. 1982. On October

27. 1983. Administrative Law Judge Marion C. Ladwig

issued a decision finding that Ms. Murphy was unlaw-

fully discharged by the Respondent. On December 14.

1984. the National Labor Relations Board decided to at-

firm the Judge's rulings. findings and conclusions and to

adopt the recommended and modified order holding,that

United Food and Commercial Workers Local 1357 had

committed the alleged untair labor practice in question.

Thereafter. the National Labor Relations Board

sought entorcement of said order in the Third Circuit

Court of Appeals and Respondent filed a cross applica-

tion for review of said order. On November 6, 1985, a

three judge panel of the Third Circuit entered a judg-

ment, without an opinion, granting the application for

entorcement of the National Labor Relations Board’s or-

der and denving Respondent's cross application for re-

view. On December 4. 1985. Respondent's subsequent

petition for rehearing in banc was denied.

The Respondent submits that in granting the

Board’s application for enforcement, the Third Circuit

failed to adhere to the firmly established standard of re-

view under Section 10(e) of the National Labor Relations

Act, 29 U.S.C. 160(e) and erroneously ruled that the Na-

tional Labor Relations Board’s findings and conclusions

in this matter have a reasonable basis in law and rest on

“substantial evidence on the record as a whole.”

@)

This contention is highlighted by the fact that the

record indicates that the General Counsel's attempt to

meet the threshold burden of making a prima facie

showing of unlawful discrimination rests on the

uncorroborated and unreliable testimony of an interested

witness, namely, the discriminatee herself. who claims

that a hearsay threat of reprisal by her employer was

passed on to her by a supervisor.

In fact, the credited testimony of the discriminatee

on crucial matters in the case is inherently unreasonable

and self-contradictory. Perhaps indicative of this entire

matter are the circumstances surrounding the false ac-

cusations made by the grievant on her worker's compen-

sation form, which the administrative law judge noted in

his opinion. On this point. the administrative law judge

observed that the grievant stated on her claim form that

“her arm was pulled out of the socket affecting her chest

cavity.” (Appendix A, infra P.10a) However. the record is

clear that Ms. Murphy's arm was never pulled out of its

socket at any time — and thus is reflective of the general

distortion and exaggeration characterizing her testi-

mony. Despite this contradiction, the administrative law

judge substantially credited the grievant’s testimony in

this respect. Thus, the false accusations the grievant

submitted on her worker's compensation form, along

with other examples, like Ms. Murphy’s incredible ver-

sion of the June 9th meeting between her and

Respondent's President and the conflicting reasons the

grievant gave for being out of work on sick leave for six

weeks. provide clear proof that the grievant basically

contributed testimony to the case which was unreliable

and uncorroborated. ( Appendix F. infra P.57-59, 65-78a)

The administrative law judge also concludes that the

timing and abruptness of United Food and Commercial

6

Workers Local 1357's action against Ms. Murphy sup-

ports a finding of unlawful motive. However, a more ac-

curate analvsis of this case shows that the timing of these

events are just a mere coincidence which has absolutely

no independent legal significance.

At the same time, the administrative law judge also

attempts to prop up an already non-existent prima facie

case on discriminatory motive by concluding that the

National Labor Relations Board’s finding of unlawful

motive is further supported by the existence of so called

shifting defenses on the part of the Respondent. How-

ever, this contention, too. is not supported by substantial

evidence.

In fact. it is clear that the administrative law judge

incorrectly confused an argument in the Union’s Brief

with respect to “major factors” which supported the

union's decision to take specific action to aid Ms.

Murphy with her apparent need of health care with the

issue of what reasons supported “the discharge of Ms.

Murphy.”

At the same time. Respondent asserts that substan-

tial evidence in the record considered as a whole indi-

cates that the grievant would have been fired for

permissible reasons. Clearly. Ms. Murphy was ultimately

discharged for reasons of insubordination which inter-

relates to her conduct of June 10. 1984 and other bizarre

events in which she was involved. demonstrating her

need for professional mental health care.

However. the administrative law judge ignored the

firmly established evidence on the events surrounding

Ms. Murphy's discharge and made credibility determi-

nations in this regard which were inherently unreason-

able or self-contradictory. The Third Circuit upheld

these unreasonable determinations despite firmly estab-

lished precedential authority instructing it to disregard

this tvpe of determination.

7

REASONS FOR GRANTING THE WRIT

I. The Decision by the Third Circuit is Contrary To the

Decision of this Court.

A. Substantial Evidence on the Record as a Whole In-

dicates That the General Counsel of the National La-

bor Relations Board Failed to Meet the Threshold

Burden of a Prima Facie Showing That Protected

Conduct Was a Motivating Factor in_ the

Respondent’s Decision to Fire the Grievant.

In this case, the Board determined that Elizabeth

Murphy was discharged from her employment with Lo-

cal 1357 in retaliation for engaging in protected con-

certed activity. In considering the evidence in a dual

motive discharge case like the one at bar, the Board is

required to follow the Wrightline test approved by the

Supreme Court in NLRB v. Transportation Manage-

ment Corp., 103 S.Ct. 2469, 77 L.Ed. 2d 667 (1983).

Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169

(enforced) 662 F.2d 899 (1980), articulated a substan-

tive standard and a burden of proof rule for deciding

mixed motive discharge cases. Borrowing from the Su-

preme Courts’ analysis in Mt. Healthy City School Dis-

trict Board of Education v. Doyle, 429 U.S. 274,97 S.Ct.

968, 50 L.Ed. 2d 471 (1974), the Board decided that a

mixed motive discharge is not violative of the act when

an emplovee would have been discharged even if he had

not engaged in any protected activity.

Under this analysis, the General Counsel must ini-

tially establish a prima facie case that protected conduct

Was a motivating factor in an emplover’s decision. The

burden then shifts to the emplover to demonstrate that

the decision would have been the same even in the ab-

sence of protected conduct. E.1. Dupont v. NLRB, 724

F.2d 1061 (3d Cir. 1983). Although the burden shifts

under this approach. the shift does not undermine the

established principle that the General Counsel must still

8

establish an unfair labor practice by a preponderance of

the evidence. Wright Line, supra.

In considering whether the Generai Counsel and the

Board has met its obligations under Wright Line, it is

firmly established that this Court’s scope of review is

confined to a determination of whether substantial evi-

dence on the record as a whole supports the Board’s de-

termination. National Labor Relations Act, §10(e), as

amended, 29 U.S.C.A. Section 6151 et seq. See Univer-

sal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456,

95 L.Ed. 2d 456 (1951); Graham Architectural Products

Corp. v. NLRB, 697 F.2d 534, 537 (3d Cir. 1983).

Indeed, this is a limited scope of review. However, in

applying this standard, the Third Circuit in NLRB v.

Craw, 565 F.2d 1267 (3d Cir. 1977) points out that the

Supreme Court in Universal Camera, supra did, in fact,

announce that “a Court of Appeals must take into ac-

count the record as a whole, including any evidence de-

tracting from the Board’s view in determining whether

there is substantial evidence to support the Board’s

findings.”

In this regard, the court is usually bound by the cred-

ibility choices of the administrative law judge where

such choices are appropriate. However, the court is able

to disregard credibility determinations that are inher-

ently unreasonable or self-contradictory. NLRB vu.

Randle-Eastern Ambulance Service, Inc., 584 F.2d 720

(Sth Cir. 1978); NLRB wv. National Fixtures, Inc., 574

F.2d 1305 (Sth Cir. 1978). Also, the court may disregard

the administrative law judge’s decision to credit the

largely uncorroborated testimony of a discriminatee-em-

plovee and to discredit the testimony of all contrary wit-

nesses. NLRB v. American Art Industries, Inc., 415 F.2d

1223 (Sth Cir. 1969). Finally, it is established that the

reviewing court is not compeiled to respect credibility

choices based on an inadequate reason or no reason at

all. NLRB v. Moore Business Forms, Inc., 574 F.2d 835

(5th Cir. 1978).

9

In granting the Board’s application for enforcement.

the Third Circuit failed to adhere to these principles and

erroneously ruled that there is substantial evidence to

support the Board's findings. Accordingly, the case

herein appears to place the Third Circuit in direct con-

flict with this firmly established authority. In order to

remedy this unjust decision in the case at bar and pre-

vent the development of an erroneous precedent, it is

necessary for this Honorable Court to intervene in this

matter.

In the instant case, the General Counsel argues that

only three areas of evidence in the case support the

Board’s findings of unlawful motive in the discharge of

Ms. Murphy: (1) evidence of unlawful motive based on

the alleged threat conveyed to Ms. Murphy by Secretary-

Treasurer Rosmini; (2) the timing and abruptness of Lo-

cal 1357's action against Murphy and finally, (3) the

Board’s finding of unlawful motive is further supported

\by the existence of so called shifting detenses on the part

of Local 1357. However, these conclusions have abso-

lutely no legal nor factual support.

Nn the instant matter, a review of the direct testi-

mony of Mr. Rosmini in which he recalled his entire con-

vergation with Ms. Murphy indicates that at no time was

there any such threat conveyed by him to Ms. Murphy.

In fact. Mr. Rosmini, gave a more credible, detailed ac-

count of that same conversation than Ms. Murphy. The

Judge should have credited Mr. Rosmini since it was

clear\that the threat simply did not occur and was only a

figment of Ms. Murphy's imagination. (Appendix F,

infra P.61-62a). In this regard, testimony of a charging

party standing alone cannot amount to substantial evi-

dence and the Third Circuit should have disregarded the

administrative law judge's decision to credit the largely

uncorroborated tesumony of the discriminatee and dis-

credit the testimony of all contrary witnesses. NLRB vc.

American Art Industries, Inc., supra; NLRB wv. Elias

Brothers Big Boy, Inc.. 327 F.2d 421 (6th Cir. 1964).

10

Accordingly, the decision in this case appears to place

the Third Circuit in direct conflict with established prec-

edent. Without this court’s intervention, a confusing

split in the circuits could unnecessarily evolve.

Similarly, the General Counsel’s assertion that the

timing and abruptness of Local 1357’s actions against

Ms. Murphy, namely the proximity in time between the

strike and the onset of Ms. Murphy’s discipline, further

supports the Board’s finding of unlawful motive is un-

founded. The undisputed evidence established by the

charging party’s own testimony was that Local 1357 did

not threaten, harass, discipline or in any other manner

reprimand any of Ms. Murphy’s fellow workers who par-

ticipated in the strike either prior to, during, or subse-

quent to the walkout. (Appendix F, infra P.38a)

Undisputed testimony also established that no actions

with respect to Ms. Murphy took place until after the

“heated meeting” of June 9, 1981 in which Ms. Murphy

engaged in personal insults, threats and conduct which

Mr. Young felt were insubordinate and humiliating (Ap-

pendix F, infra P.51-59a). This all clearly indicates that

disciplinary action against Ms. Murphy was not

prompted for retaliatory purposes due to Ms. Murphy’s

strike activity. The fact that the June 9 meeting which

Ms. Murphy initiated occurred three weeks after the

strike was just a coincidence and has absolutely no in-

dependent significance. General Counsel’s attempt to at-

tribute more to this coincidence than what really existed

is simplv misleading, especially since Ms. Murphy init-

ated the encounter. Accordingly, the General Counsel's

assertion that the timing and abruptness of Local 1357's

action against Ms. Murphy further supports the Board’s

finding of unlawful motive is not supported by substan-

tial evidence and General Counsel's reliance on United

Dairy Farmers Co-Op Ass’n. v. NLRB, 633 F.2d 1054 (3d

Cir. 1979), NLRB v. Electric City Dyeing, 178 F.2d 980

(3d Cir. 1950) is simplv misplaced.

11

Finally, the General Counsel asserts that the Board’s

findings of unlawful motive are further supported by the

failure of Local 1357’s asserted reasons for discharge to

withstand scrutiny. In an apparent attempt to prop up an

already non-existent prima facie case on discriminatory

motive, the administrative law judge attempts to do the

work of the General Counsel and find discriminatory mo-

tives by relying on Board doctrines which hold that re-

liance on several shifting reasons for an action may give

rise to an inference that the stated reasons are

pretextural and mask another unlawful motive. Al-

though this is a legally permissible approach to discrim-

ination cases like the case at bar, the union’s defenses

were consistent throughout. Three major reasons, as

cited by the Judge, supported the discharge of Ms.

Murphy; namely, her false accusations against Mr.

Young, the property destruction incident of June 10 and

Ms. Murphy’s refusal to submit to a psychiatric evalua-

tion.

With respect to the final reason in support of the dis-

charge, the union brought to the attention of the admin-

istrative law judge and established through competent

testimony instances of Ms. Murphy’s bizarre and erratic

behavior which supported President Young’s and Mr.

Rosmini’s decision that Ms. Murphy needed a psychiat-

ric evaluation. For instance, Ms. Murphy’s suggestion

that the union President was promiscuously involved

with two other women employed by Respondent, also the

fact that she reported off sick for a period of six weeks

and offered contradictory reasons concerning the nature

of her alleged illness, and the union’s apprehension that

Ms. Murphy started a fire in the union’s office were not

specific grounds for discharge but did demonstrate the

union’s good faith in seeking the psychiatric evaluation

as a possible alternative to having to discharge Ms.

Murphy.

Consequently, it is clear that the administrative law

judge incorrectly confused an argument in the union’s

12

brief with respect to “major factors” which supported the

union’s decision to seek a psychiatric evaluation with the

issue of what reasons supported “the discharge of Ms.

Murphy.” These are two entirely separate, though re-

lated, issues. The administrative law judge’s confusion

was incorrectly used by him to support an erroneous

finding that the union engaged in “shifting defenses ” To

the contrary, the Respondent consistently claimed at the

outset of this case and throughout formal proceedings in

this matter that Ms. Murphy was discharged for reasons

of insubordination relating to her conduct of June 10 and

the other bizarre events she was involved in which in-

dicated that she was in need of professional health care.

Thus, there was no substantial evidence of “shifting

defenses” upon which the administrative law judge

could rely in finding a prima facie case of unlawful dis-

crimination.

B. Substantial Evidence on the Record Considered as a

Whole Indicates that the Grievant Was Fired for Per-

missible Reasons

It would seem clear that substantial evidence, on the

record considered as a whole, indicates that the grievant

would have been fired for permissible reasons. Local

1357 asserts that its every action eminated from Ms.

Murphy’s own bizarre misconduct, i.e., Ms. Murphy was

ultimately discharged for reasons of insubordination re-

lating to her conduct of June 10 and the other bizarre

events she was involved in which indicated that she was

in need of professional health care.

The administrative law judge ignored the firmly es-

tablished evidence on the events surrounding Ms.

Murphy’s discharge and made credibility determinations

in this regard which were inherently unreasonable or

self-contradictory. Although established authority under

NLRB ©. Craw, supra; NLRB v. Jacob E. Decker & Sons,

969 F.2d 357 (Sth Cir. 1978): NLRB wv. Randle-Eastern

13

Ambulance Service, Inc., supra; NLRB v. National Fix-

ture, Inc., supra indicates that this type of unreasonable

or self-contradictory credibility determination should be

ignored by a court of review, the Third Circuit in this

case failed to follow this principle in crediting unreliable

testimony which related to the events surrounding Ms.

Murphy’s discharge. Accordingly, the Third Circuit ap-

pears to be in direct conflict with established authority

on this issue too. A focused review of the events sur-

rounding the discharge will clearly bear this out.

For instance, the employer’s actions against Ms.

Murphy did not occur until subsequent to June 9, when

she threatened and humiliated the Respondent’s Chief

Executive Officer during a conference in his office. In

regard to this incident, the administrative law judge re-

lies solely on Ms. Murphy’s incredible version of the con-

versation and concludes that a heated argument ensued

in which Ms. Murphy’s arm was injured while being

ousted from the office. (Appendix A, infra P.4a)

However, on this point, undisputed testimony on the

physical details surrounding the alleged assault indi-

cates that the attack never occurred. The place where

Ms. Murphy was seated at the time of the alleged attack

indicates that she could not have been reached ( Appen-

dix F, infra P.57-59a) Moreover, Mr. Young did indeed

testify emphatically that he never laid a hand on Ms.

Murphy and an actual rendition of Ms. Murphy’s de-

scription of how the injury occurred and piiotographs of

the alleged injuries indicate that the bruises suffered by

Ms. Murphy did not result from the type of grabbing mo-

tion described by her (Appendix F, infra P.75-78a).

In contrast, the General Counsel fails to cite any

physical evidence indicating that the assault did take

place. In fact, its entire case is based on the grievant's

self serving complaints of discomfort with her arm.

Thus, it is clear that Respondent's President could not

have physically attacked Ms. Murphy and the adminis-

trative law judge’s determination to the contrary can be

14

disregarded as inherently unreasonable and contradic-

tory.

In regard to the June 10 property destruction in Lo-

cal 1357’s office, the administrative law judge concluded

that Local 1357 did not have a good faith belief that Ms.

Murphy threw a tantrum and destroyed the office prop-

erty despite the evidence to the contrary. (Appendix A,

infra P.7-lla)

The administrative law judge’s support for this con-

clusion is based on his claim that the investigation con-

ducted by the Local was “perfunctory” and that the

union falsely claimed that it believed the good faith state-

ments of Messrs. Spellane and Miller or the first hand

observation of Mr. Rosmini. (Appendix A, infra P.10a)

However, this conclusion is also an unreasonable deter-

mination which can be disregarded,

For example, the Judge’s conclusion that the inves-

tigation was “perfunctory” is unsupported. As of June 11,

the union had completed a thorough investigation by’

taking statements from every employee who could offer

relevant evidence. Although the grievant had not been

interviewed as of that date, it was established that Mr.

Young's attempts to set up a meeting during which the

grievant could be questioned about the incident were

frustrated by her absence on sick leave and her refusal to

cooperate with her own union to arrange a meeting date.

(Appendix F, infra P.60-61a and 72-73a) In fact, it must

be noted that the administrative law judge does not point

to one additional step that the union could have taken

that was not, in fact, pursued. (Appendix A, infra P.10-

lla)

In a similar vein, the Judge does not explain why he

concluded that the union falsely claimed that it believed

the statements of Spellane and Miller, nor why the union

should not have truly believed these statements which

were forthright, detailed and pointed the finger of guilt

overwhelmingly in the grievant's direction,

15

The union cited in its brief additional reasons why it

thought an evaluation was in order and each of the rea-

sons stated were supported by the record. One such rea-

son was the fact that Ms. Murphy chronically gave

conflicting reasons for her sick leave during the time in

which she was out of work. In fact, the grievant for a

period of approximately six weeks reported off work and

gave conflicting reasons for her absences including inter

alia, alleged gastritis (Appendix F, infra P.47a), alleged

heart trouble (Appendix F, infra P.64-66a), an alleged

stomach tumor (Appendix F, infra P.62-72a) and other

non-specific reports of illness in which Ms. Murphy sim-

ply claimed to be “very sick” or “very weak” (Appendix F,

infra P.62-72a). It was during this time that the union

received a report that Ms. Murphy had been admitted to

JFK Memorial Hospital under the influence of alcohol

and drugs (Appendix F, infra P.72a). Thus, the record

clearly indicates that the grievant would have been fired

for permissible reasons.

Accordingly, the Board’s finding that the Respon-

dent committed an untair labor practice is based on in-

herently unreasonable credibility determinations. This

in turn means that there is absolutely no support by sub-

stantial evidence on the record as a whole for the Third

Circuit decision herein. Thus, the need for intervention

by this court is urgent.

16

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that this petition for a writ of certiorari should be

granted.

Respectfully submitted,

MERANZE AND Kk \TZ

wie — QAdeu

BERN, ARD N. KATZ

BASIL L. MERENDA

DATED: February 4. 1986

17

CERTIFICATION OF SERVICE

I BERNARD N. KATZ, ESQUIRE, do hereby cer

tify that a true and correct copy of the attached Petition

for a Writ of Certiorari to the United States Court of Ap

peals for the Third Circuit was forwarded by first class

mail on this date to

Elliott Moore, Esquire

National Labor Relations Board

lvl?’ Pennsylvania Avenue, N.\W

Washington, DC 20570

\ttn: John Welsh, Esquire

yo— ty

BERNARD N. KATZ

DATED: February 4. 1986

a

a a

APPENDIX

; ee ; q _ <2 :

*

APPENDIX “A”

JD-472-83

Philadelphia, PA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

DIVISION OF JUDGES

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 1357

and Case 4-CA-12427

ELIZABETH MURPHY, an Individual

Charles S. Strickler, Jr., Esq., tor the

General Counsel.

Richard B. Sigmond, Esq., (Meranze, Katz, Spear

& Wilderman ), of Philadelphia, PA, for the

Respondent.

DECISION

Statement of the Case

MARION C. LADWIG, Administrative Law Judge.

This case was tried in Philadelphia, Pennsylvania, Sep-

tember 16-17, 1982. The charge was filed September 24.

1981,! and the complaint was issued February 10, 1982.

An SIU shop steward, representing office employees

of a large local union, led an 11-day strike against the

Union, to the embarrassment of its president. In a heated

meeting after the strike with the steward concerning

strike publicity, as credited evidence shows, the union

president ejected her from his office, seizing her arm,

badly bruising it. After she filed a claim alleging injury

1. All dates are in 1981 unless otherwise indicated.

A-1

A-2

from the assault, the Union suspended her, later re-

quired her to undergo a psychiatric evaluation as a con-

dition of employment, and gave her a formal notice of

termination when she refused.

The primary issues are whether the Union, the Re-

spondent, (a) unlawfully issued the office employees’

steward a warning letter, (b) threatened her with repris-

als because of the strike, (c) made her working condi-

tions more onerous as a reprisal, (d) required her to

undergo a psychiatric and psychological examination as

a condition of employment, to provide a pretext for dis-

charging her, and (e) discharged her for engaging in pro-

tected concerted activity during and after the strike, in

violation of Section 8(a) (1) of the National Labor Rela-

tions Act.

On the entire record, including my observation of

the demeanor of the witnesses, and after consideration of

the briefs filed by the General Counsel and the Union. |

make the following

Findings of Fact

I. Jurisdiction

The Respondent Local 1357, an integral part of a

multistate labor organization, is an unincorporated asso-

ciation in Philadelphia, Pennsylvania, where it annually

receives over $100,000 in dues and fees, and remits over

$25,000 to its International in Washington, D.C. The

Union admits and I find that it is an emplover engaged

in commerce within the meaning of Section 2(2), (6),

and (7) of the Act.

II. Alleged Unfair Labor Practices

A. Embarrassing Strike Against Union

Elizabeth “Betty” Murphy, who led the office em-

plovee strike against the Union from May 6 to 16, was a

good employee and, as admitted by Union President

A-3

Wendell Young, a “very good shop steward” (Tr. 367).

She was the telephone operator and receptionist, and did

volunteer work as secretary and loan officer for the credit

union.

She was a member of the Seafarers International

Union’s negotiating committee, which failed to reach an

agreement with the Union without a strike. As the SIU

strike captain, she conducted the picket line in front of

the union offices, causing considerable disruption in the

operations when the officers and business agents hon-

ored the picket line.

The strike was a personal embarrassment to Presi-

dent Young. A May 12 news story in the Philadelphia

Daily News (G.C. Exh. 2), identifying Murphy as a

picket captain and former nun, quoted her as stating that

the major issues in the strike were overtime and a cost-

of-living clause and that her boss, Wendell Young, was a

hypocrite. “How can a man like him run around preach-

ing about contracts and be so hypocritical?”

President Young admittedly was “very upset” with

the “completely one-sided” news article (Tr. 360). He

also revealed his displeasure “over the fact that there was

a strike altogether.” He testified that the “local fellows

could not control the situation. In other words, they lost

control. In fact, I had to go into the negotiations at the

end, and try to sell the package instead of the union of-

ficial doing it. That is how goofed up it was.” (Tr. 375. )

This was an obvious reference to the bargaining position

of the SIU negotiating committee on which Steward

Murphy served.

Acknowledging his embarrassment from the adverse

publicity, President Young responded to the news story

the same day, stating in a letter to the Daily News that

“In our opinion, the people on strike are trying to em-

barrass us into a very unfair contract” (G.C. Exh. 3).

[t was this response, which was printed in full in the

June issue of the Union’s newspaper, the Dialogue, that

was the subject of Steward Murphy’s heated meeting

A-4

with President Young on June 9 when, as Young admit-

ted, she went to his office “to talk about union business”

(Tr. 410).

B. Assault Upon Shop Steward

On June 9, 3 weeks after the office employee strike

against the Union was settled, SIU Shop Steward

Murphy saw in the Dialogue an article entitled, “The

President Replies to Phila. Daily News,” quoting Presi-

dent Young’s May 12 response to that newspaper’s strike

siory. At 4:15 p.m., she went to Young’s office to give

him the SIU position on the lack of accuracy of a state-

ment in his response about one of the strike issues (Tr.

74-75, 175.) His statement was that “As a result of ex-

tensive days off and lost time due to these programs, over

the past few years there has been an increasingly large

amount of overtime needed to run the office.”

As Murphy credibly testified, she told him she would

like to talk to him about the article, he asked what was

the problem, she handed him the newspaper, and he

started reading the article. “It is in reference to this over-

time. You say that our girls are getting overtime because

they missed so much time during the year, but the truth

of the matter is they are filling in for the secretaries who

are never at their desks . . . and then they have to do

their work at nighttime.” (Tr. 33-34). She insisted on a

retraction (Tr. 79). A heated argument ensued. (Murphy

did not remember the full conversation.) Finally Young

asked, “Are you telling me how to run this office?” She

said, “No, Mr. Young, but I think you should print the

truth.” When asked what then happened, she credibly

testified (Tr. 34)

A. Mr. Young said “Get out of my office. Get

out.” He got up from his chair and he came around.

I don’t think I moved. Then he grabbed my arm and

I pulled away. He grabbed me again, and he pulled

me toward the door.

a

A-5

He opened the door and he dropped my arm, and

I left his office. He threw me out of his office. |Em-

phasis added. |

She returned to her desk “in terrible pain,” spent 3

to 5 minutes closing (Tr. 77), clocked out at 4:32 p.m.

(R. Exh. 1), and met two awaiting friends, one of whom

drove her car (Tr. 35). Her left arm “felt like it was out

of its socket” (Tr. 96). She was holding it and was “teary

eyed” (Tr. 422). When asked what was wrong, she said,

“He threw me out of his office.” (Tr. 426.) The next

morning when she showed oie of the two friends (em-

ployee Sophia Cleary, the SIU shop steward for another

group of the office employees) her “red and swollen” arm

(Tr. 423), she explained, “He gripped my arm” (Tr. 427).

This was the day, June 10, when she came to work

and found two of her pictures broken, as discussed be-

low. With Secretary-Treasurer Rosmini’s permission,

she did litthe work that day and spent most of the time

resting. At quitting time, Rosmini asked her if she was

staying to do some credit union loans and, as she credibly

testified, “I told him no, that I was having. . . a lot of

pain with my arm, and I was going right home.” (Tr.

38-39.) I discredit Rosmini’s denial (Tr. 180) that

Murphy complained about her arm at any time that day.

(By his demeanor on the stand, he appeared more con-

cerned about supporting the Union’s cause on critical

matters than giving an accurate account of what hap-

pened).

Rosmini permitted Murphy to rest much of the time

during the next 2 days, Thursday and Friday, June 11

and 12. About 2:45 p.m. Friday, when she saw President

Young, she told him, “Look at what you did to my arm.”

He looked at it and said, “I know. I know. See your

union.” (Tr. 44, 122.) Before leaving early that day (with

permission from Secretary-Treasurer Rosmini to see a

doctor about her arm (Tr. 128) ), she told Rosmini, “I

just showed Mr. Young my arm and he said he knew he

A-6

did it,” to see her union. Rosmini asked, “Do you mean

he admitted it?” and she suggested that Rosmini ask

him. In his testimony, Rosmini admitted that he saw

Murphy’s arm; that it was “very black and blue” with

“two large black and blue marks” and “four smaller

marks on the other side of her arm”; that he told her

“That doesn’t look good. . . That looks terrible”; that he

told her to talk to Young; and that when she returned,

she said she had showed Young the black and blue

marks and Young “admitted that he did it” (Tr. 188). I

discredit Young’s testimony that he merely told Murphy,

“Come on, get out, go see your union” (Tr. 379).

(Murphy impressed me most favorably by her demeanor

on the stand as an honest, conscientious witness, but

Young appeared to be less than candid. )

That Friday afternoon, upon the suggestion of an at-

torney, Murphy had four color photographs taken of her

injured arm, graphically recording the condition of the

arm as described by Rosmini.

The Union took the position at the beginning of the

trial that Young “never laid a hand on her” (Tr. 20). After

the photographs were introduced into evidence (G.C.

Exh. 6), Secretary-Treasurer Rosmini testified that he

had no information how Murphy’s arm was injured and

admitted having no reason to believe that the bruises

were self-inflicted (Tr. 277-278). Young continued to

deny touching her.

I reject as frivolous the suggestion in the Union’s

brief that there is “a reasonable probability that Ms.

Murphy self-inflicted these bruises while rubbing her

arm after leaving Mr. Young’s office or at some other

time, in some cther way.” In arguing that Young’s grab-

bing her arm as Murphy described would not leave two

large bruises on the front of the arm, the Union ignores

the credited testimony that Young gripped her arm

twice.

After weighing all the evidence and discrediting

President Young’s denials, | find that Young injured SIU

A-7

Steward Murphy’s arm June 9 when ejecting her from

his office.

C. Destruction of Steward’s Personal Property

On Wednesday, June 10, Steward Murphy received

another shock that added to the trauma of the assault of

the afternoon before.

She arrived about 8:30 and office boy Thomas

Spellane opened the door for her. After clocking in at

8:32 (R. Exh. 1), she went to her desk and found the

pictures of her mother and her friend, Sister Gloria Keltz,

lying on the floor with the frames broken. She was “most

upset” (Tr. 37) and.“kind of in total shock” (Tr. 98) upon

seeing “the glass all over the floor” and the broken pic-

tures. She turned and walked out, and asked Spellane for

Secretary-Treasurer Rosmini’s telephone number.

Rosmini had already left home.

As other employees arrived, Spellane opened the

door and let them in. The next employees to arrive were

Renee Kelly and Margaret O’ Brien, followed by Sophia

Cleary, who arived about 8:35, and Kathy Barrett, who

arrived a minute or so later (Tr. 420, 429-430).

As Kelly and O’Brien entered the reception area,

they noticed that the clock on the wall was also broken

and Murphy’s small Irish flag was burned. One of them

commented, “Your flag is burned, too, Betty, and so is

the clock” broken. (Tr. 38.) As Murphy credibly testified,

“it was the pictures that were on my mind, my mother’s

picture and Sister’s picture”; I didn’t know [the clock]

was broken. . .I didn’texamineit. . . . I think part of

[the flag] was burned. I didn’t examine it that well, be-

cause I was very upset about the whole episode” (Tr.

101). She did notice that the wall clock had stopped at

11 p.m. (Tr. 38).

When employees Cleary and Barrett came to the

area, as Cleary credibly testified, “The first thing that I

observed was the clock up on the wall stopped at 11:00.

A-8

. And I turned to Kathy Barrett and said, ‘It happened

at nighttime.’ She said, ‘It would have had to’ ” (Tr. 421,

431).

When Secretary-Treasurer Rosmini arrived about

9:05 or 9:10, he saw Murphy standing at her desk, cry-

ing. “She told me that someone had brokenSister Gloria’s

picture and her mother’s picture.” (Tr. 176.) He cleaned

up the glass and told Murphy to get some tea and relax

Cir. 1G3).

It was at quitting time that day (after Murphy told

Rosmini she was having a lot of pain with her arm and

was going right home) when Rosmini told her to stop in

his office and, as discussed below, gave her a warning

letter for “insubordination or belligerent behavior” and

told her, in an apparently unguarded answer to a ques-

tion, that President Young “said he was going to make an

example of you, that nobody would ever strike against

him again.”

The next day, Thursday, June 11, upon instructions

from Young, Rosmini made a perfunctory investigation,

taking two siatements. (A third employee also gave a

statement to Young's secretary, professing to report what

the office boy had told him.) The statement that Rosmini

took trom office boy Spellane (R. Exh. 5) was obviously

inaccurate. The statement claimed that Spellane “went

upstairs at 8:15 to make the coffee and the bell rang.

Betty Murphy came in. Approximately 8:30 I went down

to wait for the people to come in.” Although Rosmini

never accused Murphy of destroying her own property

and never took a statement from her or any of the other

emplovees who discovered the damage, the Union could

argue from this purported timing that Murphy had 15

minutes to smash the pictures of her own mother and

her nun triend. to set fire to the Hag (ignoring the odor

from the smoke) and, after damaging the wall clock, to

have the presence of mind of somehow reaching the

7-toot-high clock on the wall (Tr. 283) and setting it for-

ward or back several hours. (Except for President

A > 9g

Young's dubious suspicion — that the flag burning and

destruction of property were “to throw the thing off,” or

distract attention from Murphy’s June 9 conduct in his

office (Tr. 377) — nowhere in the evidence is there any

suggestion of a motivation for her to damage the clock

and destroy her own valued property. )

Spellane’s statement also asserted: “In the mean-

time, | came in and she said, ‘Look at all this.’ There was

glass on the floor and the clock said 11 something on it.

I took notice the clock was on the wall.” (Emphasis

added. )

The timing was obviously wrong, because Murphy’s

timecard showed that she clocked in at 8:32 a.m. — not

15 minutes earlier. By the time of trial, the timing was

changed; Spellane testified that he went downstairs

“around 8:30” and let Murphy in the front door (Tr. 308).

(This corrected timing, however, made it even more un-

likely that Murphy would be setting a fire at her desk,

breaking pictures and scattering glass around, and

breaking and resetting a clock in the few minutes before

the other office employees arrived. As found above,

Cleary arrived about 8:35 — about 5 minutes after

Murphy — and both Kelly and O’Brien arrived ahead of

Cleary. )

Also by the time of trial, Spellane had changed an-

other part of his story. Although asserting in his written

statement (which was witnessed by Secretary- Treasurer

Rosmini) that the damaged clock was on the wall, he

claimed at the trial that “The clock was on the floor” (Tr.

310). Rosmini also claimed that the clock was on the

floor (Tr. 176). To the contrary, Murphy and Cleary both

credibly testified that the clock was on the wall when the

damage was discovered. (The Union contends in its

brief: “The clock sits seven feet off the floor on the wall

of the reception area. ... She intentionally damaged her

own property, for what reason we can never be sure, and

apparently pulled the clock down off the wall and set it

at 11:00 o'clock tor obvious reasons.”) | find that

A-10

Spellane and Rosmini fabricated the change in testi-

mony to support the Union's cause—placing the dam-

aged clock in a more accessible place for Murphy to reset

it. (Rosmini claimed, “I concluded that |between 8:30

and 9 o'clock] the clock was moved forward |by Murphy|

to indicate it was done the night before” (Tr. 272-273).

but testified he did not know how to change the time:

“Move the hands, I guess” (Tr. 283).

Because of (a) the obviously inaccurate timing of

Murphy’s arrival in Spellane’s statement, (b) the lack of

any plausible motivation for Murphy to destroy or dam-

age her own and the Union’s property, (c) the implau-

sibility of Murphy’s setting a fire at the reception desk,

destroving valued property, and damaging and resetting

a wall clock at the beginning of the workday as other

employees were arriving, and (d) the failure of the Union

to question Murphy and other employees who discovered

the damage, I deem it most unlikely that the Union ac-

tually believed two other assertions in Spellane’s state-

ment, that “the clock said 10 minutes of 8” and “nothing

was disturbed” when he opened the building that morn-

ing. (At the trial, Spellane first admitted that he would

have to turn his head “almost all around to see the clock”

upon entering the front door, and indicated how far he

would have to turn, but later indicated he would have to

turn only about 90 degrees to the left (Tr. 313-315). He

appeared to be less than candid.) Whether or not it was

Spellane’s own idea to include these assertions in the

typed statement (witnessed by Rosmini and President

Young's secretary, Janice Pinti), | find that the Union

falsely claimed that it believed the assertions.

I tind instead that President Young ordered the per-

functory investigation to discover some pretext for dis-

charging the SIU steward, as discussed below. |

discredit Rosmini’s claim that he planned to “meet with

Ms. Murphy and to discuss |the incident and the state-

ments taken in the investigation] with her.” but that he

never had the occasion (Tr. 227). He later testified that

A-11

“As far as we are concerned, we had all the information

we neeted on the June 10th incident” (Tr. 242). Young,

after testifving that he ordered the investigation, claimed

that “without any evidence at this point... . [| thought

Betty did it herself” (Tr. 375).

The evidence does not reveal who damaged the

union and personal property. The damage was not done

when the office was cleaned between 8 and 8:30 the

evening before, and the night porter was not aware of

anyone else being in the building between then and mid-

night, when he left the building (R. Exh. 4, Tr. 328).

President Young testified: “I thought Betty did it herself

_.. Because I know | did not do it. . . . | Know that it was

not me. And I know that I did not instruct anybody to do

some stupid childish thing like that... . I did not burn

her flag. or instruct anybody to do it. (Tr. 375, 393-394,

412.)

Contrary to the Union's contention in its brief that

the evidence is “overwhelming” that Murphy “commit-

ted the damage herself.” | find both that she did not do

the damage and that the Union did not in good faith be-

lieve that she did when discharging her.

D. Alleged Coercion Against Steward

1. Written warning and threat of reprisal

At quitting time Wednesday, June 10.

Secretary-Treasurer Rosmini called Murphy to his office

and gave her a warning letter signed by President Young

(G.C. Exh. 4), notifving her that “any further display of

insubordination or belligerent behavior ... such as you

exhibited in my office on June 9, 1981, will result in sus-

pension and/or discharge.” She first asked Rosmini hat

Young meant by “insubordination,” and he replied that

he did not know. Then, as she credibly testified (Tr.

40-41),

A-12

A. I said “What seems to be Mr. Young’s prob-

lem? Has he said anything to you?” And he said Mr.

Young said he was going to make an example of you,

that nobody would ever strike against him again.

Rosmini did not specifically deny telling her this. He

claimed that when she asked how she was insubordi-

nate, he explained that she failed to follow Young's in-

structions by not leaving his office and was “loud and

boisterous” (Tr. 180).

The evidence is clear that President Young and

Steward Murphy had a heated argument June 9 in

Young’s office, and that she insisted on a retraction of his

strike publicity statement that the office employees were

“getting overtime because they missed so much time

during the year.” As found above, she credibly testified

that when he asked, “Are you telling me how to run his

office?” she said, “No, Mr. Young, but I think you should

print the truth.” (That was when he ordered her out and

pulled her arm, injuring it.) The evidence is also clear

that she was in the office longer than the 5 minutes she

recalled and that she did not remember the full conver-

sation.

I credit part of Young's testimony about what oc-

curred. He testified that Murphy stated she felt the pub-

lished letter “was against the understanding that we had

after the strike |the amnesty clause attached to the

agreement], that there would be no retaliation.” He gave

her a long explanation about why his strike publicity let-

ter was printed in the Union’s newspaper after the strike

was settled. “And she did not even listen. She just kept

looking up in the air. . . staring at the ceiling.” (Tr. 359).

(This testimony tends to account for her failure to recall

part of the conversation. )

I find, however, that his denials that he even

touched her and his claim that she referred to his mo-

rality in the June 9 meeting were fabricated. According

A-13

to the Union's brief, she suggested “that the Union Pres-

ident was promiscuously involved with two other women

employed by respondent,” by making a remark that

Young interpreted “as a suggestion that he was having

sexual relations with these female employees,” and that

she made another remark that Young interpreted “as a

threat by Ms. Murphy to call his wife and tell her that he

was having an illicit affair with Pat Scarcelli and Jackie

McPeak.” The brief argues that this and other conduct

were “so provocative and improper as to clearly warrant

her dismissal.” Yet the warning letter the next day men-

tioned only her purported “insubordination or belligerent

behavior.” Even if Secretary-Treasurer Rosmini's testi-

mony were credited that on June 10, Rosmini gave

Murphy an explanation of the warning letter, he merely

claimed that he told her she “failed to follow instructions

by not leaving |Young’s} office, and that she was acting

loud and boisterous” (Tr. 180, emphasis added). (The

Union’s brief misstates the record in contending that

Rosmini referred to her loud and “abusive” conduct

toward Young.) Although some of Young’s testimony

was corroborated by his secretary, Janice Pinti (who wit-

n«essed office boy Spellane’s inaccurate statement about

the June 10 property destruction), she did not impress

me as being a credible witness.

Moreover, even assuming that in their June 9 meet-

ing on union business, Steward Murphy made the state-

ments that President Young claimed, I find that the

statements would not have been so opprobrious to be un-

protected. According to him. she stated that “the only

people that you listen to are Pat Scarrelli and Jackie

McPeak .... You hate me because I am Irish .... Is

vour wife going to be home tonight?” (Tr. 361-362. ) (Al-

though Murphy could not remember the entire conver-

sation, she positively and credibly denied making these

statements (Tr. 85-86. )

I note that in falsely denving that he even touched

Murphy (contrary to her credited testimony that he

A-14

gripped her arm twice), he gave testimony that under-

mined his claim that she was insubordinate by failing to

follow instructions to leave the office. He testified (Tr.

362)

I said, “... Come on, get out of the office, go see

your union. We are finished with this conversation.”

I opened the door, and I asked her to leave. And

she got up and left. I did not touch her. And that

whole thing is absolutely ludicrous, those pictures

[of her bruised arm], absolutely ludicrous.

The Union contends in its brief that “Even if this

conversation is deemed to have involved protected activ-

ity, Ms. Murphy’s conduct during that meeting far ex-

ceeded any reasonable bounds of propriety. When she

did not succeed in her demand for a retraction, she be-

rated and humiliated Mr. Young, suggested that he had

a sexual liaison with two other employees, and made a

statement that was interpreted clearly as a threat to call

his wife and relay that false accusation. Under these cir-

cumstances, Mr. Young was justified in issuing the let-

ter of reprimand ... Indeed, he would have been

justified, under the circumstances, in meting out a

much harsher form of discipline.” The Union brief does

not reveal, if these were true facts, why this defense was

reserved for the trial and not even alluded to at the time.

I find that Secretary-Treasurer Rosmini’s June 10

statement to Steward Murphy that President Young

“said he was going to make an example of you, that no-

body would ever strike against him again” was a threat of

reprisals for engaging in the protected concerted strike

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

In view of this finding and the above finding that the

defense that Steward Murphy “berated and humilitated”’

the union president was fabricated, I reject the argu-

ment in the Union’s brief that the June 10 warning letter

“obviously had nothing whatsoever to do with the strike”

A-15

and find that it was a reprisal for her leading the strike

against the Union and for her engaging in protected con-

certed activity in the discussion of union business with

President Young in the June 9 meeting, in violation of

Section 8(a)(1).

2. More onerous working conditions

On June 11, the day after Steward Murphy received

the warning letter, Organizing Director Hugo MckKissic

wrote an interoffice communication to secretary Renee

Kelly, informing her that she was not to relieve anyone

on the switchboard or in any other area “unless you get

my personal approval.” On June 12, Murphy, as shop

steward, received a copy of the communication.

The complaint alleges that the Union, through

McKissic, made telephone operator Murphy’s working

conditions more onerous “by refusing to permit other

employees temporarily to relieve her from her duties.”

MckKissic, however, credibly testified that neither

President Young nor Secretary-Treasurer Rosmini was

aware that he was sending the communication and that

it had no relationship to the June 9 and 10 incidents. |

therefore agree with the Union that the communication

was not issued in retaliation for Murphy’s union activi-

ties and that the timing was purely coincidental.

Accordingly, I find that the allegation must be dis-

missed.

I. Discharge of Office Employees’ Steward

1. Her claims for compensation

On Friday, June 12, Steward Murphy began taking

treatments for her arm. On June 15, with

Secretary-Treasurer Rosmini’s permission, she began

taking sick leave (without pay). She took treatments

about every other day (Tr. 46), and she was taking “a lot

of Anacin” for the pain (Tr. 288). Toward the end of

A-16

June, she began having stomach and other problems.

She finally received a doctor's release dated July 20, stat-

ing that she was permitted to return to work July 27 on

a full-time basis. Rosmini admitted that he had a con-

versation with her at least once a week (Tr. 234).

On June 22, one of Murphy’s friends, Sister Gloria,

handed Rosmini Murphy’s workmen’s compensation

claim form that stated that Murphy was injured while

meeting with President Young in his office (Tr. 135,

192). Murphy overheard Rosmini state, “I can’t sign

these. Wendell |Young] would never agree with it” (Tr.

133). According te Rosmini, he said “we” did not agree

that Murphy was injured in Yeung’s office, but said he

told sister Gloria that he would mail the claim to the car-

rier if the doctor filled out his part (Tr. 192). He admit-

tedly advised that Murphy was entitled to file a claim on

the health and welfare fund, which provides compensa-

tion for “two-thirds of pay” (Tr. 196).

On June 26. Rosmini sent Murphy some health and

welfare fund forms. She submitted a disability claim that

same day for “Personal injury sustained |June 9] while

on the job in the President's Office” (G.C. Exh. 14). On

July 2, the claims supervisor, with a copy to President

Young, rejected the claim because it was work related

(SC. Ean. 13).

About August 18 (Tr. 195, 232). Steward Murphy

again submitted a workmen's compensation claim form

which Rosmini this time sent in. On the form Murphy

made the following assertions (G.C. Exh. 15):

During conversation with |Pres.| Young. he became

angry and gripped me by the arm, physically eject-

ing me from his office.

Arm pulled out of socket affecting Chest cavity.

There has been great bitterness against me as shop

steward in Seafarers International Union since a

A-17

strike was launched against Mr. Young’s Local last

May 9, 1981 when our contract expired. The media

attention it gained was a great embarrassment to

him and our conversation that day was concerning a

newspaper article he sent to the Daily News [and

printed in the] Dialogue.

Thus, in all three claims—her June 22 workmen's

compensation claim (which — Secretary-Treasurer

Rosmini refused to send in), her June 26 disability claim,

and her August 18 workmen’s compensation claim

(which she submitted shortly before her August 21 for-

mal notice of termination )—she asserted that her injury

was sustained on the job, in President Young’s office.

Young was most concerned about this assertion

(which I find to be truth). He testified (Tr. 385)

A. One of the problems that we were having is

what Betty was going to put on that form... . we told

the [SIU] ... if she put on the form that |

touched her... I was going to sue her, absolutely

sue her.

And I let that be known. And that is why we did

not get any forms for a while. ... she knew that |

Was Waiting for that report to come in. And I was

immediately going to go down and sue her for that

incident.

But we did not get a form. I called down to health

and welfare. ... and said all | want to do is review

what she puts down for her sickness.

He was referring to the disability claim that she submit-

ted June 26, asserting “Personal injury sustained while

on the job in the President's office.” He did not sue her

but, according to the General Counsel. he in effect dis-

charged her July 14, when he refused to let her work

(although the formal notice of termination was not given

her until August 21).

A-18

2. Her suspension and notice of termination

On Monday, July 13, when Steward Murphy made

her usual Monday morning telephone call to Secretary-

Treasurer Rosmini to report her continued doctor’s treat-

ment, Rosmini told her (as she credibly testified), “Mr.

Young said as soon as you are better — as soon as you get

better, Betty, that you are fired” (Tr. 49, 139-140). Ac-

cording to Rosmini, he told her “she was going to be

suspended” (Tr. 205).

The next day, July 14, in an apparent effort to retain

her job, she reported to work despite her feeling “really

sick” (Tr. 144). She clocked in, opened the switchboard,

and started to work. About 9:15, President Young called

in, recognized her voice, and told her, “Get off the board,

Betty, and do what you are supposed to be doing” (Tr.

49). She left the board, went upstairs, and waited for

Rosmini. When asked “what was I supposed to be

doing,” Rosmini “shook his shoulders” and later told her,

“Get yourself well, Betty, get strong, and get a release

from the doctor” (Tr. 50).

On July 27, Murphy returned to work with a doctor's

release that read: “Ms. Betty Murphy is permitted to re-

turn to work on July 27, 1981, on a full-time basis. Ms.

Murphy will be treated at our facilities during our

evening hours” (G.C. Exh. 7). Rosmini directed her not

to clock in and, after conferring with President Young

(Tr. 211), gave her a letter stating “please be advised that

you are being held out of service until we complete the

appropriate investigation. Your recent absences and the

facts and allegations surrounding them have raised cer-

tain serious questions which indicate that there may be

reason requiring further action on our part” (G.C. Exh.

8). He admittedly refused to give her any explanation

CPE: 8s).

A-19

On August 4, Rosmini sent Murphy a letter, advising

her of an appointment on August 12 with a psychiatrist

and a consulting psychologist. The letter explained (G.C.

Exh. 9)

A thorough consideration of all of the facts has con-

vinced us that in order to make a responsible and

informed decision |concerning her future employ-

ment], it will be necessary for us to receive a full

psychiatric and psychological evaluation. This step

is necessary for us to be advised whether there are

mental health problems which would dictate that

the resolution of your employment question be dealt

with in that sphere.

On August 6, Rosmini wrote Murphy another letter,

stating that the appointment was postponed until August

19. She contacted her union, which advised her to com-

pletely ignore the letters (Tr. 153). Instead, she tele-

phoned the psychiatrist and told him she did not want to

waste his time or the Local’s money. Then on August 11,

Rosmini wrote Murphy another letter, advising her that

the appointment was not for treatment. “It is solely for

the purpose of guiding us in determining what the ap-

propriate action should be in response to your past con-

duct. You are obliged to keep the appointment.” The

letter warned, “A failure to do so will be dealt with as a

deliberate and willful disregard of orders and intentional

insubordinatior.” (G.C. Exh. 11.) The SIU again advised

their steward to ignore the letters, and she did, missing

the appointment.

About August 18, as indicated above, Murphy sub-

mitted her workmen’s compensation claim to the Union,

asserting that President Young “became angry and

gripped me by the arm, physically ejecting me from his

office.” On August 21, Rosmini seni her the formal no-

tice of termination, explaining (G.C. Exh. 12)

A-20

You were specifically instructed to appear for an ex-

amination on Wednesday, August 19, 1981. You

were warned that a failure to appear would result in

disciplinary action. Despite this warning, you did not

appear and this offense coupled to all attendant cir-

cumstances presents just cause for discharge.

3. Shifting defenses

Secretary-Treasurer Rosmini, Steward Murphy’s

immediate supervisor who signed her August 21 termi-

nation notice, positively testified at the trial that there

were three and only three reasons for her discharge. He

listed them as “insubordination” (failure to appear for the

psychiatric examination), her “conduct of June 10th”

(burning the flag and destroying other property), and

“making slanderous statements about Mr. Young”

(claiming, and stating on her August 18 workmen’s com-

pensation form, that the union president on June 9 in-

jured her arm). (Tr. 262-264. )

President Young, the Union’s chief executive officer

for 20 years, stated that he made the final decision to

discharge Murphy (Tr. 353). He testified that his “initial

reaction was to dismiss her because of that | June 10 flag-

burning] incident” (Tr. 413), that he “spent almost lit-

erally the gosh damn summer, at least an hour or so a

day, discussing this damn Betty Murphy situation” (Tr.

394), that the major reasons they had decided to hold her

out of service were the June 10 flag burning and the ac-

cusation that he had injured her arm (Tr. 405), and that

when Murphy did not make the psychiatric appoint-

ment, “that was the final straw that broke the camel’s

back. We notified her that she was dismissed.” (Tr. 396).

Thus at the trial, Rosmini claimed that the accusa-

tion against Young, the June 10 incident, and the refusal

of psycniatric examination were the sole reasons, and

Young claimed they were the primary reasons, for

Murphy’s discharge. Young specifice'ly denied that her

A-21

discharge had “anything at all to do with her functioning

as shop steward” (Tr. 354). Both Rosmini and Young

claimed that the decision to discharge her was not made

until after she refused the psychiatric examination, but

admitted that they had previously decided not to let her

return to work until their “investigation” was completed.

In light of the evidence at the trial, however, these

three purported reasons for the discharge were obviously

suspect. One claim was that the Union was discharging

the office employee shop steward for asserting that the

union president injured her arm when ejecting her from

his office, despite the evidence that her assertion was

true. Another claim was that the Union believed, after a

perfunctory investigation, that the steward herself

burned her own flag and smashed two of her own valued

pictures at starting time, despite the evidence indicating

that the Union did not in good faith have that belief. The

third claim was that the Union discharged the SIU stew-

ard for insubordination when she refused to obey a de-

meaning order to take a psychiatric examination for a

possible mental problem — which the Union contended

it suspected that she had primarily because she asserted

(truthfully, as found above) that the union president in-

jured her arm and because she destroyed her own prop-

erty (something, as found, she did not do).

In its brief, the Union listed other purported “major

factors” involved in the Union's ultimate decision to ter-

minate Murphy’s employment (as well as its decision to

seek a psychiatric evaluation). The first two were pur-

ported reasons that neither Rosmini nor Young claimed

as a basis for the discharge. They were Murphy’s “sug-

vesting that the Union President was promiscuously in-

volved with two other women employed by respondent”

(found above to be a fabrication) and her “threatening to

call the Union President's wife to report on the alleged

illicit affairs if the Union President did not accede to Ms.

Murphy’s demands for a retraction of a newspaper

article” (also found to be a fabrication).

A-22

Some of the other purported “major factors,” con-

tended in the brief but not claimed by either Rosmini or

Young to be a basis for the discharge, were “blaming the

mischief [destroying property June 10] on unspecified

‘others’ in the Union office” (something she did not do);

reporting to work on three consecutive days | June 10-12]

and spending most of her time in the office lying on a

couch in the ladies’ lounge” (failing to point out that she

did so with Rosmini’s permission); and “reporting off

sick for a period of six weeks and offering contradictory

reasons concerning the nature of her alleged illness” (a

clear pretext).

I find that these shifting defenses — particularly the

first two purported “major factors” — detract from rather

than bolster the Union’s defense that it was lawfully mo-

tivated.

4. Concluding findings on discharge

After weighing all the evidence, I find that this is a

bizarre case in which a local union president, seeking a

mechanism to discharge a suspended office employee

shop steward for her protected concerted activity, or-

dered her to submit to a psychiatric evaluation as a con-

dition of employment and discharged her when she

refused to comply with the demeaning order.

In its brief, the Union contends that it could have

discharged SIU Shop Steward Murphy “immediately af-

ter the June 10 property destruction incident” and could

have discharged her “following the false accusation

against [President] Young,” but that “she was a long-

term employee, a virtual fixture in the office,” and al-

though she had engaged in this “serious misconduct,”

the Union deciced it “should first attempt to determine

whether her problem was due to emotional or mental

distress’ by requiring her to take the psychiatric evalu-

ation.

A-23

To the contrary, as found, Murphy did not engage in

the June 10 property destruction, the Union did not have

a good-faith belief that she did and, in fact, ordered the

perfunctory investigation to discover some pretext for

discharging the SIU steward who had embarrassed Pres-

ident Young by her protected concerted strike activity.

Also, as found, Murphy’s accusation against Young was

true; he had injured her arm in the June 9 meeting when

she, as shop steward, was engaging in protected con-

certed activity.

| agree with the General Counsel that before July 14,

when President Young suspended Murphy from work by

ordering her off the switchboard, the Union had already

decided to terminate her “and was only attempting by

further investigation and delay to find some basis or

mechanism — the psychiatric evaluation — to achieve

this end.”

I therefore reject the Union’s contention that “Not

one action taken against [SIU Shop Steward Murphy]

had any relationship to her functioning as shop steward

or her participating in the strike,” and its contention that

even if President Young acted in “retaliation for her

strike activities . . . a discharge would have been proper,

and occurred, even absent such a hostile motivation.” |

find that the Union unlawfully discharged her for en-

gaging in protected concerted activity during and after

the strike in violation of Section 8(a)(1) of the Act and

that, as alleged in the complaint, she was in fact dis-

charged July 14, after which the Union refused to permit

her to work. (I find it unnecessary to rule whether the

discharge also violated Section 8(a)(3). )

I also find that the Union required Shop Steward

Murphy to undergo a psychiatric and psychological ex-

amination August 19 as a condition of employment, to

provide a pretext to discharge her for engaging in pro-

tected concerted activity, further violating Section

8(a)(1).

A-24

Conclusions of Law

1. By discharging Flizabeth Murphy July 14, 1981,

for engaging in protected concerted activity, the Union

engaged in an unfair labor practice affecting commerce

within the meaning of Section 8(a)(1) and Section 2(6)

and (7) of the Act.

2. By issuing SIU Shop Steward Murphy a warning

letter in reprisal for her engaging in protected concerted

activity, the Union violated Section 8(a)(1).

3. By threatening the shop steward with reprisals for

engaging in protected concerted strike activity, the

Union violated Section 8(a)( 1).

4. By requiring the shop steward to undergo a psy-

chiatric and psychological examination as a condition of

employment, to provide a pretext to discharge the shop

steward, the Union further violated Section 8(a)(1).

5. The Union did not make the shop steward’s work-

ing conditions more onerous in reprisal for her protected

concerted activity.

Remedy

Having found that the Respondent has engaged in

certain unfair labor practices, | find it necessary to order

it to cease and desist and to take certain affirmative ac-

tion designed to effectuate the policies of the Act.

The Respondent, having unlawfully discharged an

employee, must offer her reinstatement and make her

whole for any loss of earnings and other benefits, com-

puted on a quarterly basis from date of discharge to date

of proper offer of reinstatement. less any net interim

earnings, as prescribed in F. W. Woolworth Co., 90

NRLB 289 (1950), plus interest as computed in Florida

Steel Corp., 231 NLRB 651 (1977).

A-25

On these findings of fact and conclusions of law and

on the entire record, I issue the following

ORDER

The Respondent, United Food and Commercial

Workers International Union, Local 1357, its officers,

agents, and representatives, shall

1. Cease and desist from

(a) Discharging or disciplining any employee tor

engaging in protected concerted activity.

(b) Issuing any employee a warning letter in re-

prisal for engaging in protected concerted activity.

(c) Threatening any employee with reprisals for

engaging in protected concerted strike activity.

(d) Requiring any employee to undergo a psy-

chiatric or psychological examination as a condition

of employment, to provide a pretext for discharging

the employee.

(e) In any like or related manner interfering

with, restraining, or coercing employees in the ex-

ercise of the rights guaranteed them by Section 7 of

the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Offer Elizabeth Murphy immediate and full

reinstatement to her former job or, if that job no

longer exists, to a substantially equivalent position,

without prejudice to her seniority or any other rights

or privileges previously enjoved, and make _ her

2. If no exceptions are filed as provided by Sec. 102.46 of the

Board’s Rules and Regulations, the findings, conclusions, and rec

ommended Order shall, as provided in Sec. 102.48 of the Rules. be

adopted by the Board and all objections to them shall be deemed

waived for all purposes.

A-26

whole for any loss of earnings and other benefits suf-

fered as a result of her discharge, in the manner set

forth in the remedy section of the decision.

(b) Remove from its files any reference to the

unlawful discharge and to the June 10, 1981 warn-

ing letter and notify the employee in writing that this

has been done and that the discharge and warning

letter will not be used against her in any way.

(c) Preserve and, on request, make available to

the Board or its agents for examination and copying,

all payroll records, social security payment records,

timecards, personnel records and reports, and all

other records necessary to analyze the amount of

backpay due under the terms of this Order.

(d) Post at its union offices in Philadelphia,

Pennsylvania, copies of the attached notice marked

“Appendix.” Copies of the notice, on forms provided

by the Regional Director for Region 4, after being

signed by the Respondent’s authorized representa-

tive, shall be posted by the Respondent immediately

upon receipt and maintained for 60 consecutive days

in conspicuous places including all places where no-

tices to employees are customarily posted. Reason-

able steps shall be taken by the Respondent to

ensure that the notices are not altered, defaced, or

covered by any other material.

(e) Notify the Regional Director in writing

within 20 days from the date of this Order what steps

the Respondent has taken to comply.

3. If this Order is enforced by a Judgment of a United States

Court of Appeals, the words in the notice reading “POSTED BY OR-

DER OF THRE NATIONAL LABOR RELATIONS BOARD” shall

read “POSTED PURSUANT TOA JUDGMENT OF THE UNITED

STATES COURT OF APPEALS ENFORCING AN ORDER OF

IHkE NATIONAL LABOR RELATIONS BOARD.”

A-27

IT IS FURTHER ORDERED that the complaint is

dismissed insofar as it alleges violations of the Act not

specifically found.

Dated, Washington, D.C. October 27, 1983

Marion C. Ladwig

Administrative Law Judge

A-28

APPENDIX “B”

DZH

273 NLRB No. 44 D—2447

Philadelphia, PA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR’ RELATIONS

BOARD

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 1357

and Case 4—CA— 12427

ELIZABETH MURPHY, an Individual

DECISION AND ORDER

On 27 October 1983 Administrative Law Judge

Marion C. Ladwig issued the attached decision. The Re-

spondent and the General Counsel filed exceptions and

supporting briefs.

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

The Board has considered the decision and

the record in light of the exceptions and _ briefs

and has decided to affirm the judge’s_ rulings,!

1. The Respondent excepts to the exclusion of a hospital record

it sought to admit as evidence that Murphy sought medical treat-

ment on 10 July 1981 for intoxication. The Respondent contends

that this record is relevant to the charge that it unlawfully required

Murphy on 4 August 1981 to undergo a psychiatric evaluation. We

find that the preoffered evidence is irrelevant and that the Respon-

dent was not prejudiced by its exclusion. The issue is not the fact of

Murphy’s hospital visit but the Respondent’s motivation in requiring

the psychiatric evaluation. On this issue the Respondent was not

precluded from presenting evidence. The judge permitted the

Respondent's President Young to testify that he had heard of

Murphy’s hospital visit before 4 August and that it was a motivating

factor in the decision to require her to take the psychiatric exami-

nation.

A-29

findings,2 and conclusions as restated below, and to

adopt the recommended Order as modified.

In adopting the judge’s finding that the Respondent

Union reprimanded Murphy, required her to take a psy-

chiatric examination, and ultimately discharged her in

reprisal for her activity in support of a May 1981 strike

against the Respondent, we note the prominent and out-

spoken role that Murphy played during that strike. A

shop steward for the Respondent’s office emplovees.

Murphy was a leader of the strike and conducted the

picket line in front of the Respondent’s offices. She was

also quoted in the local newspaper accusing the Respon-

dent Union’s President, Wendell Young, of being a hypo-

crite for not meeting the emplovees’ contract demands.

Additionally, the judge credited Murphy’s testimony that

after the strike, the Respondent's secretary-treasurer

told her that President Young “said he was going to make

an example of you, that nobody would ever strike against

him again.” Based on these findings, we agree with the

2. The Respondent has excepted to some of the judge's credi-

bility findings. The Board’s established policy is not to overrule an

administrative law judge’s credibilit. resolutions unless the clear

preponderance of all the relevant evidence convinces us that thes

are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950).

enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the

record and find no basis for reversing the findings. We have further

considered the Respondent’s contention that the judge has evi-

denced bias or at least the appearance of bias in this proceeding. We

have carefully considered the decision and record and find these

charges unsupported and without merit.

The judge found it unnecessary to rule whether the

Respondent's actions against Murphy also violated Sec. 86a) 3) of

the Act. The Generai Counsel contends that the judge’s findings are

clearly sufficient to conclude that the Respondent violated that sec-

tion. We agree and find that the Respondent's actions against

Murphy discouraged union activity in violation of Sec. 8( a3) of the

Act. See Radio Officers v. NLRB. 347 U.S. 17 61954).

A-30

judge’s conclusion that the Respondent’s subsequent ac-

tions against Murphy were in retaliation for her pro-

tected strike activity in violation of Section 8(a)(1) of the

Act.3

i

ome

3. The judge found that the Respondent’s actions against

Murphy also violated Sec. 8(a)(1) insofar as they were also in re-

prisal for Murphy’s protest to Young after the strike was settled over

an article he had written concerning the strike. The judge found

that Murphy’s protest concerned union business and was therefore

protected concerted activity.

Chairman Dotson and Member Hunter do not adopt this find-

ing for the following reasons. Chairman Dotson would reverse the

judge’s finding. In the Chairman’s view, because Murphy sought

only the retraction of the article and not any change in terms and

conditions of employment, her protest over the article was not pro-

tected activity. See Phase Inc., 263 NLRB 1168, 1170(1982); Cham-

pion Parts Rebuilders, 260 NLRB 731 fn. 3( 1982). Member Hunter

finds it unnecessary to pass on whether Murphy’s protest over

Young’s article was protected concerted activity. Insofar as the

judge found that the Respondent’s defense that Murphy was insub-

ordinate and threatened and humiliated Young during their discus-

sion was a fabrication, Member Hunter would find that it was solely

Murphy’s protected strike activity which motivated the Respondent

to reprimand and ultimately discharge her. Thus, in Member

Hunter’s view, the Respondent's reliance on Murphy’s protest as

justification for her discharge was, likely Murphy’s refusai to take a

psychiatric examination, simply another pretext for discharging her

in retaliation for her protected strike activity.

Accordingly, the judge’s Conclusions of Law and recom-

mended Order are amended to reflect the Chairman's and Member

Hunter’s findings that the Respondent’s actions against Murphy

were due solely to her protected strike activity.

The judge also stated in dictum that even if Murphy had threat-

ened during their discussion to tell Young's wife that he was having

affairs with two of the female office employees, this threat “would

not have been so opprobrius to be unprotected.” Chairman Dotson

does not adopt this dictum. In the chairman’s view, a threat to dis-

close private sexual affairs, in the circumstances here, exceeds the

bounds of protected conduct. C.f. Bell Federal Savings & Loan

Assn., 214 NLRB 75 (1974) (disclosing employer's private tele-

phone calls unprotected ). In view of the judge's finding that Murphy

did not in fact make such a threat, Member Hunter finds it unnec-

essary to pass on the judge’s dictum.

A-31

Conclusions of Law

1. By discharging Elizabeth Murphy on 14 July 1981

for engaging in protected concerted strike activity, the

Respondent engaged in an unfair labor practice affecting

commerce within the meaning of Section 8(a)( 1) and (3)

of the Act.

2. By issuing Murphy a warning letter in reprisal for

her engaging in protected concerted strike activity, the

Respondent violated Section 8(a)(1) and (3) of the Act.

3. By threatening Murphy with reprisals for engag-

ing in protected concerted strike activity, the Respon-

dent violated Section 8(a)(1) of the Act.

4. By requiring Murphy to undergo a psychiatric and

psychological examination as a condition of employment

to provide a pretext to discharge her, the Respondent vi-

olated Section 8(a)(1) and (3) of the Act.

5. The Respondent’s aforesaid actions are unfair la-

bor practices within the meaning of Section 2(6) and (7)

of the Act.

6. The Respondent did not make Murphy’s working

conditions more onerous in reprisal for her protected

concerted strike activity.

ORDER

The National Labor Relations Board adopts the rec-

ommended Order of the administrative law judge as

modified below and orders that the Respondent, United

Food and Commercial Workers International Union, Lo-

cal 1357, Philadelphia, Pennsylvania, its officers, agents,

successors, and assigns, shall take the action set forth in

the Order as modified.

1. Substitute in paragraph 1(a) the words “protected

concerted strike activity” for the words “protected con-

certed activity.”

Member Zimmerman agrees with the judge’s analysis of

Murphy's actions concerning Young's article and adopts his find-

ings in all respects.

A-32

2. Substitute in paragraph 1(b) the words “protected

concerted strike activity” for the words “protected con-

certed activity.”

3. Substitute the attached notice for that of the ad-

ministrative law judge.

Dated, Washington, D.C.

14 December 1984

Donald L. Dotson, Chairman

Don A. Zimmerman, Member

Robert P. Hunter, Member

NATIONAL LABOR RELATIONS

(SEAL) BOARD

A-33

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-3152

NATIONAL LABOR RELATIONS BOARD.

Petitioner

U~

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 1357,

Respondent

(Board Docket No. 4-CA-12427)

ON APPLICATION FOR ENFORCEMENT AND

CROSS-APPLICATION

FOR REVIEW OF AN ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

Submitted Under Third Circuit Rule 12(6)

November 4, 1985

BEFORE: SEITZ, WEIS and ROSENN, Circuit Judges.

A-34

JUDGMENT ORDER

After consideration of all contentions raised by peti-

tioner and respondent, it is

ADJUDGED AND ORDERED that the application

for enforcement of an order of the National Labor Rela-

tions Board be 2nd is hereby granted and the

respondent’s cross-application for review of the order is

denied.

Costs taxed against respondent.

By the Court,

ATTEST:

Sally Mrvos, Clerk

A-35

APPENDIX “D”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-3152

NATIONAL LABOR RELATIONS BOARD,

Petitioner

v.

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 1357,

Respondent

(Board Docket No. 4-CA-12427)

SUR PETITION FOR REHEARING

PRESENT: ALDISERT, Chief Judge, SEITZ, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER, BECKER,

STAPLETON, MANSMANN, and_ RO-

SENN, Circuit Judges.

The petition for rehearing filed by respondent in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court en banc, the pe-

tition for rehearing is denied.

By the Court,

Circuit Judge

Dated: Dec. 4, 1985

A-36

APPENDIX “E”

Statutory Provisions

LABOR MANAGEMENT RELATIONS ACT OF 1947,

AS AMENDED, (29 U.S.C.A. §151, et seq.)

§157. Right of employees as to organization, collective

bargaining, etc.

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain col-

lectively through representatives of their own choosing

and to engage in other concerted activities for the pur-

pose of collective bargaining or other mutual aid or pro-

tection, and shall also have the right to refrain from any

or all such activities 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 158(a)(3) of this title.

July 5, 1953, c.372 §7, 49 Stat. 452; June 23, 1947,

c.120, Title I, §101, 61 Stat. 140.

§158. Unfair labor practices

(A) It shall be an unfair labor practice for an em-

ployer —

(1) to interfere with, restrain, or coerce employ-

ees in the exercise of the rights guaranteed in sec-

tion 157 of this title;

len te ow ft he ee

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization: Provided, That nothing in this

subchapter, or in any other statute of the United

States, shall preclude an employer from making an

agreement with a labor organization (not estab-

lished, maintained, or assisted by any action defined

A-37

in this subsection as an unfair labor practice) to re-

quire as a condition of employment membership

therein on or after the thirtieth day following the be-

ginning of such employment or the effective date of

such agreement, whichever is the later, (i) if such

labor organization is the representative of the em-

ployees as provided in section 159(a) of this title, in

the appropriate collective bargaining unit covered by

such agreement when made, and (ii) unless follow-

ing an election held as provided in section 159(e) of

this title within one year preceding the effective date

of such agreement, the Board shall have certified

that at least a majority of the employees eligible to

vote in such election have voted to rescind the au-

thority of such labor organization to make such an

agreement: Provided further, That no employer

shall justify any discrimination against an employee

for nonmembership in a labor organization (A) if he

has reasonable grounds for believing that such

membership was not available to the employee on

the same terms and conditions generally applicable

to other members, or (B) if he has reasonable

grounds for believing that membership was denied

or terminated for reasons other than the failure of

the employee to tender the periodic dues and the ini-

tiation fees uniformly required as a condition of ac-

quiring or retaining membership;

A-38

APPENDIX “F”

RELEVANT TESTIMONY

employee at the Local Union, Renee Kelly, was informed

that she was no longer to relieve Betty Murphy in her

duties on a temporary basis.

I would note that Ms. Murphy worked as the Recep-

tionist and in the past had been relieved from time to

time by Ms. Kelly. On the i2th of June, Ms. Murphy left

work to seek medical care of her arm, which had been

injured when she was removed from Mr. Young’s office.

Ms. Murphy had a number of communications with

the Local Union subsequent to June 12, on which she

informed them of her healtii condition, and the fact that

she was receiving treatments and was informed that she

was excused from work untii she was well enough to

work.

On July 14th, Ms. Murphy did return to work and

was told she was to leave work, was not permitted to

work. On the 27th of July, Ms. Murphy again returned to

work with a doctor’s certificate, indicating she was well

enough to work, and she was given a communication —

a written communication — at that time, indicating that

she was being held out of service pending investigation.

Ms.Murphy inquired as to the meaning of the term

“held out of service” but did not receive any satisfactory

reply at that time. Beginning in early August of that year,

Ms. Murphy received a series of communications indi-

cating that she was being required to have a full-scale

psychological

Q. Ms. Murphy, I may have a wrong date in my

notes. Was it on July 14th or June 14th that you say you

reported for work, when Mr. Young called in and said

“Get off the board, Betty, and do what you are supposed

to be doing” ?

A. Yes, that was a Tuesday. That was July.

Q. That was July?

A-39

A. Yes.

Q. Okay. Now, you say that after Mr. Young — he

was Calling into the office, he had not come to the office

that morning, is that correct?

A. Yes. He called from his house. You see, it is a

dimension (sic) and he dials “O” and it goes right into the

front.

Q. Had you told anybedy you were going to report

fur work that day?

A. Well, when Mr. Rosmini the day before, when |

was really sick, had told me — | was up there for treat-

ment, and here he tells me that when I am better, I am

going to be fired, I figured “Oh well, I may as well ge in

while I was sick”.

Mr. Sigmond, I was very sick.

Q. Did you tell Mr. Rosmini when you talked to him

that day that you could get a clearance from your doctor

to work any old time you want?

A. Never.

Q. Did you tell him that the doctor was willing to

clear you for work —

A. The —

JUDGE LADWIG: Did you finish your answer?

THE WITNESS: Yes. Did you mean the 14th?

BY MR. SIGMOND: —

Q. The 13th.

A. The 13th on the phone? I didn’t understand.

Q. Yes.

A Is this on the phone? No. Mr. Rosmini told me

that Mr. Young said when I get better, | am going to be

fired. I said to him “Why are you telling me that now

when [| am so sick?”

He said “Wendell said to tell you”, and that was the

end of the conversation. | had treatment that morning.

The next morning was Tuesday, the 14th of July. | went

to work very sick. I wasn't even feeling — I was feeling

terrible.

A-40

I opened the switchboard and I was answering the

phones. Mr. Young dialed, and he said “Betty, get off the

phone and do what you are supposed to be doing”.

Q. Did you ask him what he meant by that?

A. No I didn't.

Q. Now, you went to see Mr. Rosmini —

A. I waited for Mr. Rosmini to come in.

Q. And you informed him of your conversation with

Mr. Young?

A. Yes. lasked Mr. Rosmini what was I supposed to

be doing, and he just shrugged his shoulders because he

didn’t know.

Q. What did he say to you, Betty?

A. He just shrugged his shoulders, but he was

called to the phone. Mr. Young’s secretary called him to

the phone and he went to Mr. Young’s office. And I

called the Seafarers Union.

They told me to fill in a grievance form and they

would be up — William Holmes.

Q. For what? What were you going to grieve?

A. Well, I don’t know. You see, I just called to report

— you know, | was told to get off the phone and do what

I was supposed to be doing.

Q. You hadn't yet received a doctor’s certification

that you were able to return to work, is that correct?

A. No I didn't.

Q. You hadn’t delivered anything to the Union from

your doctor yet, had you?

A. No, Sir, but Mr. Sigmond, if you let me finish.

Mr. Rosmini then came back and told me to get well and

vet a release from the doctor and come back to work. He

also told me to get strong.

Q. I take you back in time to the time you went to

see Dr. Abrams and Nemerof for the first time—

A. Um-huh.

Q. —the first time after the June 9th incident.

A. Yes.

A-41

Q. Did they refer you at any point to Parkview for

tests to determine whether you had any vascular disor-

ders or heart trouble?

A. Yes. I went to—the first time I went was 6-12 and

I saw Dr. Nemerof. That was that Friday. | went back

Monday for treatment and I had chest pain and I believe

it was Dr. Gerber, maybe, of Parkview—he is a Heart

Specialist—and I had some tests run.

Q. What tests were performed?

MR. STRICKLER: Your Honor, I am going to object

to this line of questioning.

JUDGE LADWIG: What is the objection?

MR. STRICKLER: The objection is that the Re-

spondent has alleged that Ms. Murphy has psychiatric

problems apparently or something related to that and a

failure to see a psychiatrist is the basis of this termina-

tion.

Whatever her particular physical ailments were or

what tests she received, or what doctors she went to, |

don’t believe they have any relevancy, given the termi-

nation letter and the other documents which have been

presented.

JUDGE LADWIG: It appears to me that Counsel for

the Union is helping to build your case. Maybe you

should not object to this.

MR. STRICKLER: Well, that is a possible interpre-

tation, Your Honor.

JUDGE LADWIG: I will overrule the objection.

MR. STRICKLER: Okay.

MR. SIGMOND.: [assure Your Honor that I am not.

| believe that the relevance, just to speak to Mr.

Strickler’s objection, goes to the bruises on the arm, not

the other matters.

BY MR. SIGMOND:

Q. What tests were performed?

A. I had chest tests. | had trouble with breathing:

pains in my chest. And I went to the Heart Doctor. I don’t

A-42

know his name. The report was sent into the Union of-

fice.

Q. Was it Parkview Hospital?

A. It was Parkview Hospital.

Q. From the time that you returned to work after the

strike, May 16th, 1981, through this meeting with Mr.

Young of June 9th, you didn’t receive any reprimand or

discipline did you, Betty?

A. No, Sir, I didn’t.

Q. And in the days leading up to the strike, you easy.

But she worked the switchboard, too.

Q. Did you see her throughout the day—

A. Oh, yes, sure.

Q. —and have occasion to talk to her?

A. Yes.

Q. Did she complain to you about her arm at any

time during that day?

A. No.

Q. But she was given permission by you to take

some time off from her job that day?

A. Yes.

Q. Would you tell us what occurred next that day?

A. Well, later on that afternoon the letter of warning

was typed and I brought Betty into the office and gave

her the letter of warning.

Q. And had you called her early in the day and asked

her to stop by to see you after she clocked out?

A. Yes.

Q. Now, was there a conversation when you handed

her the letter?

A. She opened he letter and read it. She asked why

she was—what areas was she insubordinate in. I ex-

plained to her that at the meeting with Mr. Young, that

she failed to follow his instructions by not leaving his

office, and that she was acting loud and boisterous, and

this is the reason why she was placed on record.

Q. And what did Ms. Murphy say?

A-43

A. She said she didn’t understand that. That she

would like to talk to Mr. Young.

Q. And what did you do?

A. | left; went into Mr. Young’s office and told him

I had Betty in my office; | had given her the letter of

record, and tnat she wanted to talk to him.

Mr. Young informed me to tell her to call her Union

Representative and set up a grievance meeting.

Q. Did you communicate that to Betty?

A. Yes.

Q. What occurred the following day, on June 11th,

1981?

A. On June 11th, Betty came in to work, clocked in

around 12:00, and I heard she came in. I went down. She

was down in the Business Agent’s office talking to a

friend of hers who works for us by the name of Marie

Adler.

I asked her what had happened, and she said she

was sick that morning, was very upset about that letter.

I said what time are you going to start today, and she said

“T will start at 1:00”.

Q. Now, had she called in that morning to let any-

body know she would be late?

A. On that Thursday morning?

Q. To your knowledge?

did it”.

Q. So she said to you that he admitted it?

A. Yes.

Q. Did she tell you his exact words, or did she just

characterize it that way?

A. Exactly what I said.

Q. What did you say to her?

A. I said—I didn’t say anything to her. She contin-

ued by saying “You should ask him”. I said “I will” and

I hung up and went into his office.

Q. Was Mr. Young there?

A. Yes he was. He had just come in.

A-44

Q. What did you say to him and what did he say to

you?

A. I said “Wendell, I just talked to Betty. Betty tells

me that you admitted grabbing her arm and causing the

black and blue marks”. He said “That’s nensense. |

never said that to her”.

Q. Did you have any other communication with

Betty that day, June 12?

A. No.

Q. On Sunday evening, June 14, did you have oc-

casion to talk to Betty Murphy?

A. Yes I did.

Q. Tell us what occurred, Mr. Rosmini?

A. She called my home and told me she would be

out a few days and she was going to go to Dr. Nemerof.

Q. By the way, on June 12, did she inform you when

she asked permission to leave at 3:00, that she was going

to see a lawyer?

A. No.

Q. What specifically did she tell you in that regard?

A. That she was going to go to the doctor’s. “Can I

get off to go to the doctor’s?” and I said “Yes”.

Q. Okay. Now, would you tell us the conversation

that occurred on June 14? I may have cut you off on that.

A. I told her to get to the doctor's and I hoped she

was feeling well.

Q. I believe you testified about this, but let’s make it

clear: she told you that she would be off for a few days?

A. Yes.

Q. That was your testimony? Did she tell you what

was wrong with her in that conversation?

A. No.

Q. Did you ask?

A. No.

Q. Why didn’t you ask?

A. Well, I knew she was upset on Wednesday. She

was upset on Thursday. She was upset on Friday, and |

A-45

just felt she was going to go to the doctor's to get her

nerves straightened out.

took her to the hospital, and that she was going to go to

the doctor’s to find out what was wrong. She had been

released by the hospital, and she had gone to Parkwood.

I think it is Parkway or Parkwood.

Q. Parkview?

A. Parkview. It’s right down the street from our of-

fice.

Q. Do you recall your next communication with Ms.

Murphy?

A. On July 13, 81.

Q. When did that occur?

A. She called me at home at 8:00, or round about

that time. She told me that she was going to Dr. Nemerot

and Abrams’ office. That she had gotten very sick over

the weekend.

She was very, very weak, and that she wanted to

come to work that day. | told her that if she is going to be

released by her doctor, that I was going to tell her at that

time that she was going to be suspended, pending the

investigation of her case and the incidents involving her

statements.

She then said “Well, how can you suspend me when

I am still out on sick leave?” I said “Are you going to be

released or aren't you going to be released?” I said “Upon

your release, give me a call”.

Q. Did you say anything to her about her being

fired—

A. No.

Q. —as soon as she is off sick leave?

A. No.

Q. Did vou use the word “fire” at all?

A. Never.

Q. Why was she being suspended at that point?

A-46

A. Well, we had agreed upon her termination of sick

benefits, we were going to suspend her, pending the in-

vestigation.

Q. Of what?

A. The entire matter.

Q. What do you mean by “the entire matter” ?

A. Of the statements, misconduct, the statements

made about Mr. Young, the slander statements made on

the Health and Welfare forms that went down to Dela-

ware Valley, and some of the statements that were float-

ing around the office that Mr. Young allegedly beat up on

her.

Q. Did the property destruction have anything to do

with it?

A. Well,—

MR. STRICKLER Your Honor, I think that Counsel

is again leading the witness, suggesting reasons for

which particular actions were taken that this witness

hasn't suggested, and really that is not appropriated.

answer you gave?

A. Yes.

Q. As of the date of this conversation with Sister

Gloria, had the Union in fact received a letter from Mr.

Gerson?

A. Yes.

Q. Would you — you began to testify about this con-

versation with Sister Gloria. | am not sure whether you

completed it because I injected a few questions. Would

you go ahead if there was more to that conversation?

A. Basice’ y that was what it was.

Q. When was the next time you saw Ms. Murphy?

A. The next time I heard from Betty Murphy, after

the 14th of July, was on July 20, 1981. My recollection is

she called me and told me she was going to see Dr.

Nemerof and Abrams.

She was having stomach problems and she felt she

had a tumor.

A-47

Q. She said she thought she had a tumor?

A. Yes.

Q. What did you say to her?

A. I told her to make sure she gets there and make

sure she does what they tell them to do.

Q. When was the next conversation you had with

Betty Murphy?

A. On July 22, of 81, she called me and toid me she

was.

A. Yes.

Q. Would you like to review the letter before I ask

you some questions?

A. Not really.

Q. Okay. Prior to sending this letter, were there any

discussions — let me ask you why the letter was sent?

Tell me what occurred as a result of this letter.

A. After Mr. Young and I sat down and had dis-

cussed it, it was agreed that we felt that Betty’s actions

in this whole matter were irrational, and that in her best

interest that we feel she should see a psychiatrist and if

there was any problem with her, she could get treatment,

and after treatment, return to work.

We do this with our own members.

Q. You say that you felt that Betty was irrational —

JUDGE LADWIG: What do you mean you do this

with your own members?

THE WITNESS: We have a program that is called

“Info Now” and when a person has a pattern of emotional

problems or has a pattern of absenteeism or lateness or

things like that, we get him into a program where they

see a psychologist for evaluation, and sometimes we put

them out — we get them out on sick leave, and upon

their return, maybe they would get treatment by a psy-

chologist or a psychiatrist.

JUDGE LADWIG: Are you talking about employees

of.

A-48

that it is leading here. The objection is sustained.

BY MR. SIGMOND:

Q. After the June 26th conversation with Ms.

Murphy, when was the next time, if you can recall the

date, you received any specific communication from

her?

A. July 6.

Q. What occured on that date?

A. She called my home and talked to my wife Cass.

Told her she was still out sick —

MR. STRICKLER: Your Honor, | object, hearsay.

JUDGE LADWIG: Sustained.

BY MR. SIGMOND:

Q. Did she leave a message with your wife?

A. Yes.

Q. Did your wife communicate the message to you?

A. Yes.

Q. What was communicated to you by your wife,

and to avoid an objection, I am not offering it for the

truth of what was said, but only for the fact of the com-

munication of this message to Mr. Rosmini?

A. She told my wife to tell me that she had been

rushed to the hospital that morning. | guess that was

going into Monday morning at 3:00 a.m., with an attack

of gastritis.

In fact, my neighbors, Mr. and Mrs. Charles Adler.

the slanderous remarks on the health and welfare form

and “statements Ms. Murphy had made around the

office,” is that correct?

A. Yes. It goes a little further than that.

Q. Tell us about it.

A. The whole bizarre situation involving the filing

for workmen’s compensation, the not filing for work-

men’s compensation; the filing for health and welfare;

the incident on the 10th; the statements allegedly being

made by her about Mr. Young. We wanted her to get

A-49

released from her doctor, we wanted to gather all the

evidence and all the documentation and make an eval-

uation.

Q. Mr. Rosmini, I'll be frank. I don’t understand

your position on this in that —

MR. SIGMOND.: I object to this kind of statement by

counsel.

JUDGE LADWIG: Sustained.

BY MR. STRICKLER: (Resuming)

Q. As of July 13th, what was prohibiting the inves-

tigation of the June 10th incident?

A. Because we didn’t know where she was coming

from. We didn’t know what she was doing.

Q. Why didn’t you investigate it to your heart’s con-

tent?

A. Because we didn’t know whether she was going

to file for workmen’s comp, health and welfare. We

wanted her to

Q. What I am saying is you said on July 13th, you

made a decision, when she has done her sick leave, we

are going to put her on suspension pending investiga-

tion. One of the things you wanted to investigate was the

June 10th incident.

My question is you had a month to investigate that.

You had statements from the employees on the 12th of

June. Why did you have to hold her out of service a

month later for something that could have been inves-

tigated for a month?

A. We wanted to wait until she returned to work.

We wanted to wait until she was released by her doctor.

We wanted to get all the documentation together and

make an evaluation of what happened.

JUDGE LADWIG: What further investigation did

you plan to make concerning the destruction of her own

property ?

THE WITNESS: None.

BY MR. STRICKLER: (Resuming)

A-50

Q. Why was it necessary to suspend her while you

investigated further?

A. That wasn’t the only thing we were investigating.

Q. We will lay that one aside. You said you wanted

to investigate the statements that she may have made

around the office about Mr. Young. She had not been at

work for a month. Wasn’t a month ample opportunity to

investigate those statements?

A. We talked about that and we felt that possibly

that accumulation of the case, of the bizarre things that

went on over the course of June 9th on.

BY MR. STRICKLER: (resuming)

Q. My question is very specific. You stated that you

wished to investigate the statements made by Ms.

Murphy on the health and welfare form and I have

shown you the form. I want to know what investigation

you were contemplating which required holding Ms.

Murphy out of service?

A. We had already concluded that she meant the

President had grabbed her arm from this statement.

Q. What were you going to do in this investigation?

A. My earlier statement was we were going to ac-

cumulate all the facts and make an evaluation of what to

do, get all the documentation together and make an eval-

uation of what to do. We didn’t want to do that until she

was officially released by her doctor.

JUDGE LADWIG: Are you testifying that there was

nothing further to investigate concerning that particular

document?

THE WITNESS: That’s true; yes.

JUDGE LADWIG: Could that be identified and of-

fered into evidence?

MR. STRICKLER: Yes. I will offer that into evi-

dence, Your Honor, as General Counsel Exhibit No. GO-

1-. It is a document entitled “Retail Clerks Tri-State

A-5]

Health and Welfare Fund” signed at the bottom by

Elizabeth Murphy, dated 6-26-81.

A. It was an ongoing discussion with the case but

we wanted to get all the documentation together and

make a decision on what to do.

Q. You had all the documentation. You already told

us that.

A. We wanted to wait until Ms. Murphy was re-

leased by her doctor. That was the decision we had made.

We didn’t want to do anything while she was in treat-

ment with the doctors.

JUDGE LADWIG: Is this a correct summary of your

testimony? As of July 27th, you had all the documenta-

tion, that you wanted to wait until after she was released

by the doctor before you and Mr. Young decided what to

do?

THE WITNESS: That’s correct.

JUDGE LADWIG: Thank you.

BY MR. STRICKLER: (Resuming)

Q. On July 30th, Mr. Lennon requested workmen's

compensation forms; is that correct?

A. That’s correct.

Q. When did you make a decision to send her the

August 4th letter suggesting the appointment to see the

two doctors?

A. That was sometime after July 27th.

Q. Do you know when?

A. No, I don’t know the exact date in time.

Q. Who made the decision?

A. Wendell and I; Mr. Young and I.

Q. Why did you make that decision?

June 9, 1981?

A. Yes. When I came into the office my secretary,

Janice Pinti, had told me that Betty requested a meeting.

Q. Okay, let me just stop you there, because she was

identified as Janice Mangini in the record. Is that her

name?

A-52

A. She got married.

Q. Okay, that is the same as Janice Pinti?

A. Yes.

Q. Go ahead.

JUDGE LADWIG: Could you speak a little louder,

please?

THE WITNESS: Yes, I can. She got married.

BY MR. SIGMOND:

Q. Go ahead. She told you that—-

A. Sol said okay, set it up for 4:15. And that is what

we did. By the time that I had the meeting, I knew what

the topic was going to be, because of the old grapevine

that goes around the office. And Betty arrived at 4:15.

And the frame of mind that she was in—

MR. STRICKLER: Your Honor, I object, I do not

think that this witness should be testifying as to someone

else’s state of mind. He should testify about things that

he observed. But I do not think that a statement as to

another person’s state of mind is really probative.

BY MR. SIGMOND.:

Q. Let me draw you back.

A. She was very emotional.

MR. STRICKLER: Your Honor, | have an objection

on the record. I think it should be ruled on.

JUDGE. LADWIG: Objection sustained. Would you

tell us what you say and heard, please.

BY MR. SIGMOND:

Q@. Let me first—

A. She was very excited.

A. That is okay, we will come back to this. Let me

backtrack for a moment. You said that you knew through

the grapevine what the discussion would be about.

What did you mean by that?

A. I was told that when the newspaper hit that day,

that she was very upset about what was in ihe news-

paper.

Q. And who told you that?

ee

A-53

A. A number of people, I guess. I do not know spe-

cifically. Just that | was made aware of it, but I don’t

know who exactly.

Q. Okay, now go ahead. She now arrives at vour of-

fice. And would you describe her mannerisms, and what

you observed, her attitude?

A. I do not know how to do it.

Q. Go ahead.

A. She was very—she walked in, and she had her

newspaper there. She was very matter of fact, very ag-

gressive. She walked into the office. I sat her down. The

way that she described the seating arrangement yester-

day was not the way it was.

Q. Would you describe the seating arrangement?

A. Yes. Can I get up and show?

JUDGE LADWIG: Please.

THE WITNESS: This is my table. She said that she

was sitting here, and I was sitting there. Actually, she

was sitting here, and I was sitting there. This is a wall.

JUDGE LADWIG: She was sitting across from the

table, instead of both of you sitting on either end of the

table?

THE WITNESS: Right. That is very important. Be-

cause where she was describing where she was sitting at

that end is very close to the door. And if I did all of these

things that I was supposed to have done, I could not have

possibly have done them with her sitting there.

I would have had to lean over the table. And the table

is about as wide as that. There is no way that I could have

touched her. So that is very important, the way that she

described where we sat, and where she actually sat.

BY MR. SIGMOND:

Q. The seat that she was sitting in across from you

had its back to a wall?

A. Yes.

Q. Is that correct?

A. Right.

A-54

Q. And how much room was there between the

edge of the table and the wall?

A. See that table and that wall. I would say another

four or five inches of that. The end of this table to that

wall, about another four or five inches.

JUDGE LADWIG: Is that twelve or fifteen inches

from the wall?

THE WITNESS: Something in that area. Not much

further in distance that that is.

MR. STRICKLER: Your Honor, | would say that

that distance is two feet.

JUDGE LADWIG: Are you talking about the table or

the chair?

THE WITNESS: It is almost, | would say, another

six inches more than this.

JUDGE LADWIG: How far would you say that is?

MR. STRICKLER: Two and a half feet.

BY MR. SIGMOND:

Q. Give your best estimate, Mr. Young, not Mr.

Strickler’s estimate.

A. I would say he is right.

Q. Okay, fine.

She was sitting in the seat between the table and the

wall, is that correct?

A. Yes.

Q. When she entered the room, did you say anything

to her initially?

A. I said hello, you know, or whatever the salutation.

And she sat down, and I said what is on your mind. And

right away, she started in a very high pitched voice de-

scribing what she felt was very, very wrong what I did

about the letter that was published in the newspaper,

and that it was against the understanding that we had

after the strike, that there would be no retaliation.

And | said Betty, | am going to tell you what hap-

pened on that letter, but you are not even going to listen

to me. And I started to describe why that letter was pub-

lished. And she did not even listen. She just kept looking

A-55

up in the air. And I said well, I have to go through this

process.

Q. Well, the record will not be able to see what you

just did, Mr. Young.

A. She was staring at the ceiling with her arms

folded, and just staring at the ceiling. And she stared

down here, not looking at me, like rejecting what I was

saying.

Q. This was while you were explaining to her what

had happened which resulted in the publication of the

letter?

A. Right. I said that there was a reason for why we

did that.

Q. Would you explain what you told her?

A. What happened was this. During the strike —

JUDGE LADWIG: Pardon me, is this what you told

her?

THE WITNESS: Yes.

JUDGE LADWIG: Would you try to recall just what

you told her on that occasion?

THE WITNESS: Yes.

JUDGE LADWIG: Without explaining what hap-

pened during the strike.

THE WITNESS: Well, this is what I said. I said dur-

ing the strike, there was an article in the Daily News that

was completely one-sided. And I was very upset with

that. I said I don’t care what you said representing your

people. But I was upset that they published in the Daily

News that the union was unavailable for comment.

when in fact | was the one who told the Daily News who

to contact from the office employees to get their com-

ment.

I had written the Daily News criticizing them for not

quoting me, and saying in fact that I was unavailable for

comment. I wrote this complete letter. They had agreed

to publicize the letter, but they never did. So

simultaneoulsy when the newspaper came out that day,

A-56

which you have, also simultaneously the Daily News

publishes a revised letter.

So from her point of mind, she thought everything

was coming down on her.

MR. STRICKLER: Your Honor, | do not think that

Mr. Young should be testifving as to Ms. Murphy’s state

of mind.

JUDGE LADWIG: Sustained. Would you just say

what was — tell us what was said by both of you on that

occasion.

THE WITNESS: So I described what I just de-

scribed, explaining why I did it, and it did not even make

an indent. Then she started going into the issue of what

the letter was about. She said that letter was a lie, an

absolute lie. And she stated the girls’ in the office over-

time, and the fact that they had to work overtime, was

due to the fact that my secretary, and Peter Mark’s sec-

retary, when they go to lunch, they had a replacement.

And I said “I don’t even want to discuss it with you,

Betty, that is not the issue.” And she said “That is the

issue, and I demand a retraction.” And she screamed it,

“| demand a retraction.” I said “Betty, forget it. | am not

going to carry on anymore of this conversation. Call your

union.”

“| demand it,” she started screaming at the top of her

lungs, “I demand it. The only time that vou listen to me

is if | have to get dirty. And the only people that you listen

to are Pat Scarrelli and Jackie McPeak.” And I just sat

back. I started to respond loudly myself, like | am doing

now, and I caught myself.

I said. “Look, go see your union, go see your union.”

| must have said that ten times. And then she screamed

at the top of her lungs, “You hate me because | am Irish.”

She said, “Is your wife going to be home tonight?” I said.

“What does that have to do with the price of beans in

Puerto Rico?” She said. “Is your wife going to be home

tonight?” | said. “What does that have to do with it?

A-57

Come on, get out of the office, go see your union. We are

finished with this conversation.”

I opened the door, and I asked her to leave. And she

got up and left. I did not touch her. And that whole thing

is absolutely ludricous, those pictures, absolutely ludi-

crous.

BY MR. SIGMOND:

Q. Did you in any way, shape, or form lay a hand on

her even inadvertently?

A. No.

Q. Where were you when you walked up to go to the

door?

A. I was — well, I went from where the lawyer is

sitting, I was a little further in the middle. I walked over

to the side around the table, and opened the door. |

Q. When you say around the table, the record cannot

follow your finger as pointing, and we do not want this

misunderstood.

A. I walked from the middle of the table, walked over

to the entrance of the door, and opened the door.

Q. You did not do a complete circle of the table, did

you?

A. No.

Q. Where was Ms. Murphy?

A. Betty was sitting in the middle there. And when

she started to scream and yell, she was not sitting down

like she testified yesterday. She was actually standing

pounding on the table, pounding on the table, “I demand

this. | demand that .” [ thought to myself, this is ridic-

ulous, am I going to take this. I said this is absolutely

ridiculous. | am thinking to myself.

Q. How did you interpret the remarks about Pat

Scareili and Jackie McPeak?

MR. STRICKLER: Your Honor, | object. I do not

care how he interpreted them.

JUDGE LADWIG: Sustained.

A-58

MR. SIGMOND.: I think, Your Honor, that this is

important with respect to the motivation concerning

events that occurred later. |

MR. STRICKLER: Your Honor, I would state that

the witness is capable of testifying as to things that he

hears and sees. But as to his state of mind, a very sub-

jective form of testimony has been found by the Board to

be inherently unreliable, and generally is not admitted

under whatever circumstances.

And | think that he should testify as to what he saw

and heard. And if counsel wishes to argue that some in-

ference could have been drawn from that, or was drawn

from that, that is fine. But that he should testify only as

to what he saw and heard, and not as to inferences that

he drew.

MR. SIGMOND: This man is on trial for his

thoughts and motivations. And he is certainly entitled to

testify as to what his interpretation of remarks were.

JUDGE LADWIG: Just a minute. I will reverse my

ruling, overruled.

MR. SIGMOND.: Your Honor will permit the ques-

tion?

JUDGE LADWIG: Yes.

MR SIGMOND.: Thank you, sir.

BY MR. SIGMOND:

Q. Mr. Young, how did you interpret the remarks

concerning Pat Scarelli and Jackie McPeak?

A. It was meant for me to absorb, the way I felt was

I went to bed with them.

Q. How did you interpret the remarks, and what

went through your mind, when she was saying in that

context, “Is your wife going to be home tonight?”

A. She implied, she said she was going to call my

home that night, if my wife was home. Actually she said.

“Is your wife going to be home tonight?” And I said,

“What does that have to do with anything?” I said, “What

does that have to do with the price of beans in Puerto

Rico?” That is exactly what I said.

A-59

Q. Would you describe the tone of voice exhibited

by Betty Murphy throughout the conversation?

A. Screaming, screaming, very loud.

Q. Did you observe Betty Murphy’s testimony in the

courtroom yesterday?

A. Nothing like that, nothing at all. Nothing what-

soever like that.

Q. Answer yes or no.

A. Did I observe it?

Q. Yes.

A. Yes.

Q. And how would you describe her testimony in

the courtroom yesterday in terms of voice?

A. It was nothing like the way she was in my office.

Q. Describe the tone of voice she used in the court-

room yesterday. Mr. Young.

A. Very subdued.

Q. Have you have other meetings and conversations

prior to June 9, 1981 with Betty Murphy?

MR. STRICKLER: Objection, Your Honor, rele-

vancy.

JUDGE LADWIG: How is it relevant?

MR. SIGMOND.: It is meant to demonstrate that the

Charging Party’s personality was frequently of the na-

ture that was exhibited on June 9, 1981. and not of the

demure, sweet, littke nature that was exhibited in this

courtroom.

MR. STRICKLER: Your Honor, I would say that |

am not

BY MR. STRICKLER:

Q. Is that correct?

A. Yes.

Q. Why did you find it so extraordinary that she

should show up for work, and be on the phones on July

14th?

A. Are you serious?

A-60

Q. I am serious. She is an employee. She works on

the phones.

A. You mean—

Q. Why should she not be there?

JUDGE LADWIG: Pardon me. Can you answer the

question directly.

THE WITNESS: Yes. It was extraordinary because

of everything that I just finished stating.

BY MR. STRICKLER:

Q. Had anyone ever indicated to her that she was

not an employee in good standing, and to come to work

when she was able to come to work?

A. Nobody could get in touch with her, only when

she wanted to get in touch with people. And you just do

not walk in with all of these things that we were trving

to get in touch with her, you just do not walk in.

Q. But if you are an employee, and nobody has ever

told you that you are suspended, discharged, or anything

else, and you want to come to work, can’t you come to

work?

A. Nobody could get in touch with her.

JUDGE LADWIG: Is that your only answer?

THE WITNESS: That is my only answer; ves, sir.

BY MR. STRICKLER:

Q. Is it your testimony that you had no knowledge

that Mr. Rosmini had been in contact with her?

A. Mr. Rosmini was in contact with her as she was

contacting Mr. Rosmini. We many times could not get in

touch with her.

Q@. But he was in contact with her. If the under-

standing was that you are not to come to work, why had

he not told her that? Was she suspended at that time?

A. Because at that time she was stating that she was

sick.

Q. Soshe shows up to work, and says that I am well.

What is so wrong when you call up, and find an em-

ployee of yours doing her job; why shouldn’t she be doing

it?

A-61

A. Because we were investigating it. She had not

submitted a form. She had submitted a form for what her

sickness was. And there were things that were surround-

ing the incident.

Q. Had you sent her a suspension letter?

A. Had I sent her a suspension letter?

Q. Yes.

MR. SIGMOND: When?

BY MR. STRICKLER:

Q. As of July i4th.

A. Did I send her a suspension letter, no.

easy. But she worked the switchboard, too.

Q. Did you see her throughout the day—

A. Oh, yes, sure.

Q. —and have occasion to talk to her?

A. Yes.

Q. Did she complain to you about her arm at any

time during that day?

A. No.

Q. But she was given permission by you to take

some time off from her job that day?

A. Yes.

Q. Would you tell us what occurred next that day?

A. Well, later on that afternoon the letter of warning

was typed and | brought Betty into the office and gave

her the letter of warning.

Q. And had you called her early in the day and asked

her to stop by to see you after she clocked out?

A. Yes.

Q. Now. was there a conversation when you handed

her the letter?

A. She opened the letter and read it. She asked why

she was—what areas was she,insubordinate in. I ex-

plained to her that at the eeotie with Mr. Young, that

she failed to follow his instructions by not leaving his

office, and that she was acting loud and boisterous, and

this is the reason why she was placed on record.

Q. And what did Ms. Murphy say?

A-62

A. She said she didn’t understand that. That she

would like to talk to Mr. Young.

Q. And what did you do?

A. I left; went into Mr. Young’s office and told him

I had Betty in my office; I had given her the letter of

record, and that she wanted to talk to him.

Mr Young informed me to tell her to call her Union

Representative and set up a grievance meeting.

Q. Did you communicate that to Betty?

A. Yes.

Q. What occurred the following day, on June 11th,

1981?

A. On June 11th, Betty came in to work, clocked in

around 12:00, and I heard she came in. I went down. She

was down in the Business Agent’s office talking to a

friend of hers who works for us by the name of Marie

Adler.

I asked her what had happened, and she said she

was sick that morning, was very upset about that letter.

I said what time are you going to start today, and she said

“T will start at 1:00”.

Q. Now, had she cailed in that morning to let any-

body know she would be late?

A. On that Thursday morning?

Q. To your knowledge?

Q. Ms. Murphy, I may have a wrong date in my

notes. Was it on July 14th or June 14th that you say you

reported for work, when Mr. Young called in and said

“Get off the board, Betty, and do what you are supposed

to be doing”?

A. Yes, that was a Tuesday. That was July.

Q. That was July?

A. Yes.

Q. Okay. Now, you say that after Mr. Young—he

was Calling into the office, he had not come to the office

that morning, is that correct?

A-63

A. Yes. He called from his house. You see, it is a

dimension (sic) and he dials “O” and it goes right into the

front.

Q. Had you told anybody you were going to report

for work that day?

A. Well, when Mr. Rosmini the day before. when I

was really sick, had told me—I was up there for treat-

ment, and here he tells me that when I am better, I am

going to be fired, I figured “Oh well, I may as well go in

while I was sick”.

Mr. Sigmond, I was very sick.

Q. Did you tell Mr. Rosmini when you talked to him

that day that you could get a clearance from your doctor

to work any old time you want?

A. Never.

Q. Did you tell him that the doctor was willing to

clear you for work—

A. The—

JUDGE LADWIG: Did you finish your answer?

THE WITNESS: Yes. Did you mean the 14th?

BY MR. SIGMOND:

Q. The 13th.

A. The 13th on the phone? I didn’t understand.

Q. Yes.

A. Is this on the phone? No. Mr. Rosmini told me

that Mr. Young said when I get better, | am going to be

fired. I said to him “Why are you telling me that now

when I am so sick?”

He said “Wendell said to tell you”, and that was the

end of the conversation. I had treatment that morning.

The next morning was Tuesday, the 14th of July. I went

to work very sick. I wasn’t even feeling—I was feeling

terrible.

I opened the switchboard and I was answering the

phones. Mr. Young dialed, and he said “Betty, get off the

phone and do what you are supposed to be doing”’.

Q. Did you ask him what he meant by that?

A. No I didn't.

A-64

Q. Now, you went to see Mr. Rosmini—

A. I waited for Mr. Rosmini to come in.

Q. And you informed him of your conversation with

Mr. Young?

A. Yes. | asked Mr. Rosmini what was I supposed to

be doing, and he just shrugged his shoulders because he

didn’t know.

Q. What did he say to you, Betty?

A. He just shrugged his shoulders, but he was

called to the phone. Mr. Young’s secretary called him to

the phone and he went to Mr. Young’s office. And |

called the Seafarers Union.

They told me to fill in a grievance form and they

would be up—William Holmes.

Q. For what? What were you going to grieve?

A. Well, I don’t know. You see, | just called to re-

port—your know, I was told to get off the phone and do

what I was supposed to be doing.

Q. You hadn't yet received a doctor’s certification

that you were able to return to work, is that correct?

A. No I didn’t.

Q. You hadn’t delivered anything to the Union from

your doctor yet, had you?

A. No, Sir, but Mr. Sigmond, if you let me finish.

Mr. Rosmini then came back and told me to get well and

get a release from the doctor and come back to work. He

also told me to get strong.

Q. I take you back in time to the time you went to

see Dr. Abrams and Nemerof for the first time—

A. Um-huh.

Q. —the first time after the June 9th incident.

A. Yes.

Q. Did they refer you at any point to Parkview for

tests to determine whether you had any vascular disor-

ders or heart trouble?

A, Yes. I went to—the first time I went was 6-12 and

I saw Dr. Nemerof. That was that Friday. I went back

A-65

Monday for treatment and I had chest pain and I believe

it was Dr. Gerber, maybe, of Parkview—he is a Heart

Specialist—and I had some tests run.

Q. What tests were performed?

MR. STRICKLER: Your Honor, | am going to object

to this line of questioning.

JUDGE LADWIG: What is the objection?

MR. STRICKLER: The objection is that the Respon-

dent has alleged that Ms. Murphy has psychiatric prob-

lems apparently or something related to that and a failure

to see a psychiatrist is the basis of this termination.

Whatever her particular physical ailments were or

what tests she received, or what doctors she went to, |

don’t believe they have any relevancy, given the termi-

nation letter and the other documents which have been

presented.

JUDGE LADWIG: It appears to me that Counsel for

the Union is helping to build your case. Maybe you

should not object to this.

MR. STRICKLER: Well, that is a possible interpre-

tation, Your Honor.

JUDGE LADWIG: I will overrule the objection.

MR. STRICKLER: Okay.

MR. SIGMOND: | assure Your Honor that I am not.

I believe that the relevance, just to speak to Mr.

Strickler’s objection, goes to the bruises on the arm, not

the other matters.

BY MR. SIGMOND.:

Q. What tests were performed?

A. I had chest tests. I had trouble with breathing;

pains in my chest. And I went to the Heart Doctor. I don’t

know his name. The report was sent into the Union of-

fice.

Q. Was it Parkview Hospital?

A. It was Parkview Hospital.

Q. From the time that you returned to work after the

strike, May 16th, 1981, through this meeting with Mr.

A-66

Young of June 9th, you didn’t receive any reprimand or

discipline, did you, Betty?

A. No, Sir, I didn't.

Q. And in the days leading up to the strike, you

that it is leading here. The objection is sustained.

BY MR. SIGMOND:

Q. After the June 26th conversation with Ms.

Murphy, when was the next time, if you can recall the

date, you received any specific communication from

her?

A. July 6.

Q. What occured on that date?

A. She called my home and talked to my wife Cass.

Told her she was still out sick—

MR. STRICKLER: Your Honor, | object, hearsay.

JUDGE LADWIG: Sustained.

BY MR. SIGMOND:

Q. Did she leave a message with your wife?

A. Yes.

Q. Did your wife communicate the message to you?

A. Yes.

Q. What was communicated to you by your wife,

and to avoid an objection, I am not offering it for the

truth of what was said, but only for the fact of the com-

munication of this message to Mr. Rosmini.

A. She told my wife to tell me that she had been

rushed to the hospital that morning. I guess that was

going into Monday morning at 3:00 a.m., with an attack

of gastritis.

In fact, my neighbors, Mr. and Mrs. Charles Adler,

took her to the hospital, and that she was going to go to

the doctor’s to find out what was wrong. She had been

released by the hospital, and she had gone to Parkwood.

I think it is Parkway or Parkwood.

Q. Parkview?

A. Parkview. It’s right down the street from our of-

fice.

A-67

Q. Do you recall your next communication with Ms.

Murphy?

A. On July 13, ’81.

Q. When did that occur?

A. She called me at home at 8:00, or round about

that time. She told me that she was going to Dr. Nemerot

and Abrams’ office. That she had gotten very sick over

the weekend.

She was very, very weak, and that she wanted to

come to work that day. I told her that if she is going to be

released by her doctor, that | was going to tell her at that

time that she was going to be suspended, pending the

investigation of her case and the incidents involving her

statements.

She then said “Well, how can you suspend me when

I arm still out on sick leave?” | said “Are you going to be

released or aren’t you going to be released?” | said “Upon

your release, give me a call”.

Q. Did you say anything to her about her being

fired—

A. No.

@. —as soon as she is off sick leave?

A. No.

Q. Did you use the word “fire” at all?

A. Never.

Q. Why was she being suspended at that point?

A. Well, we had agreed upon her termination of sick

benefits, we were going to suspend her, pending the in-

vestigation.

Q. Of what?

A. The entire matter.

Q. What do v nean by “the entire matter’?

A. Of the stateraents, misconduct, the statements

made about Mr. Young, the slander statements made on

the Health and Welfare forms that went down to Dela-

ware Valley, and some of the statements that were float-

ing around the office that Mr. Young allegedly beat up on

her.

A-68

Q. Did the property destruction have anything to do

with it?

A. Well,—

MR. STRICKLER: Your Honor, | think that counsel

is again leading the witness, suggesting reasons for

which particular actions were taken that this witness

hasn’t suggested, and really that is not appropriate.

answer you gave?

A. Yes.

Q. As of the date of this conversation with Sister

Gloria, had the Union in fact received a letter from Mr.

Gerson?

A. Yes.

Q. Would you — you began to testify about this con-

versation with Sister Gloria. | am not sure whether you

completed it because I injected a few questions. Would

you go ahead if there was more to that conversation?

A. Basically that was what it was.

Q. When was the next time you saw Ms. Murphy?

A. The next time | heard from Betty Murphy, after

the 14th of July, was on July 20, 1981. My recollection is

she called me and told me she was going to see Dr.

Nemerof and Abrams.

She was having stomach problems and she felt she

had a tumor.

Q. She said she thought she had a tumor?

A. Yes.

Q. What did you say to her?

A. I told her to make sure she gets there and make

sure she does what they tell them to do.

Q. When was the next conversation you had with

Betty Murphy?

A. On july 22 of °81, she called me and told me she

was

the slanderous remarks on the health and welfare form

A-69

and “statements Ms. Murphy had made around the

office,” is that correct?

A. Yes. It goes a little further than that.

Q. Tell us about it.

A. The whole bizarre situation involving the filing for

workmen’s compensation, the not filing for workmen’s

compensation; the filing for health and welfare; the in-

cident on the 10th; the statements allegedly being made

by her about Mr. Young. We wanted her to get released

from her doctor, we wanted to gather all the evidence

and all the documentation and make an evaluation.

Q. Mr. Rosmini, I'll be frank. I don’t understand your

position on this in that —

MR. SIGMOND.: I object to this kind of statement by

counsel.

JUDGE LADWIG: Sustained.

BY MR. STRICKLER: (Resuming)

Q. As of July 13th, what was prohibiting the inves-

tigation of the June 10th incident?

A. Because we didn’t know where she was coming

from. We didn’t know what she was doing.

Q. Why didn’t you investigate it to your heart’s con-

tent?

A. Because we didn’t know whether she was going to

file for workmen’s comp, health and welfare. We wanted

her to

Q. What I am saying is you said on July 13th, you

made a decision, when she has done her sick leave, we

are going to put her on suspension pending investiga-

tion. One of the things you wanted to investigate was the

June 10th incident.

My question is you had a month to investigate that.

You had statements from the employees on the 12th of

June. Why did you have to hold her out of service a

month later for something that could have been inves-

tigated for a month?

a

A-70

A. We wanted to wait until she returned to work. We

wanted to wait until she was released by her doctor. We

wanted to get all the documentation together and make

an evaluation of what happened.

JUDGE LADWIG: What further investigation did

you plan to make concerning the destruction of her own

property ?

THE WITNESS: None.

BY MR. STRICKLER: (Resuming)

Q. Why was it necessary to suspend her while you

investigated further?

A. That wasn’t the only thing we were investigating.

Q. We will lay that one aside. You said you wanted to

investigate the statements that she may have made

around the office about Mr. Young. She had not been at

work for a month. Wasn’t a month ample opportunity to

investigate those statements?

A. We talked about that and we felt that possibly

that

accumulation of the case, of the bizarre things that went

on over the course of June 9th on.

BY MR. STRICKLER: (Resuming)

Q. My question is very specific. You stated that you

wished to investigate the statements made by Ms.

Murphy on the health and welfare form and I have

shown you the form. I want to know what investigation

you were contemplating which required holding Ms.

Murphy out of service?

A. We had already concluded that she meant the

President had grabbed her arm from this statement.

Q. What were you going to do in this investigation?

A. My earlier statement was we were going to accu-

mulate all the facts and make an evaluation of what to do,

get all the documentation together and make an evalu-

ation of what to do. We didn’t want to do that until she

was Officially released by her doctor.

A-7]

JUDGE LADWIG: Are you testifying that there was

nothing further to investigate concerning that particular

document?

THE WITNESS: That’s true; yes.

JUDGE LADWIG: Could that be identified and of-

fered into evidence?

MR. STRICKER: Yes. I will offer that into evidence,

Your Honor, as General Counsel Exhibit No. GC-14. It is

a document entitled “Retail Clerks Tri-State Health and

Welfare Fund” signed at the bottom by Elizabeth

Murphy, dated 6-26-81.

A. It was an ongoing discussion with the case but we

wanted to get all the documentation together and make

a decision on what to do.

Q. You had all the documentation. You already told

us that.

A. We wanted to wait until Ms. Murphy was released

by her doctor. That was the decision we had made. We

didn’t want to do anything while she was in treatment

with the doctors.

JUDGE LADWIG: Is this a correct summary of your

testimony? As of July 27th, you had all the documenta-

tion, that you wanted to wait until after she was released

by the doctor before you and Mr. Young decided what to

do?

THE WITNESS: That’s correct.

JUDGE LADWIG: Thank you.

BY MR. STRICKLER: (Resuming)

Q. On July 30th, Mr. Lennon requested workmen’s

compensation forms; is that correct?

A. That’s correct.

Q. When did you make a decision to send her the

August 4th letter suggesting the appointment to see the

two doctors?

A. That was sometime after July 27th.

Q. Do you know when?

A. No. I don’t know the exact date in time.

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Q. Who made the decision?

A. Wendell and I; Mr. Young and I.

Q. Why did you make that decision?

BY MR. SIGMOND.

Q. Go ahead?

A. Ronnie informed me that she was taken to the

hospital in the middle of the night by one of our other

employees. And that was one incident.

Q. Were you told anything about why she was taken

to the hospital?

MR. SFRICKLER: Your Honor, | have difficuity

that this is not being admitted for the truth of the matter

stated.

JUDGE LADWIG: It is offered for the truth. There-

fore your objection is overruled.

BY MR. SIGMOND:

Q. Go ahead, Mr. Young.

A. In the incident of the hospital, I was told — I

would have to agree with him almost. It was secondhand

— I was told that it was drugs, and pills, and liquor. That

is secondhand.

Q. About when did you receive that, was at or about

the time when you heard that she was taken to the hos-

pital?

Did | receive that?

Yes.

At the same time, yes.

Did that concern you?

Yes. As I told you before, I really feel sorry for her.

How many years had vou known Betty Murphy?

OD OFO>O>

Go ahead.

A. My opinion is that when | went down to the busi-

ness agents to tell about the suspension, when I went

down to tell about the suspension, one of the business

agents called her to tell her what was going to happen —

and this is my opinion — and that this precipitated this

other incident to throw the thing off. Just like this whole

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hearing is precipitating — it is my opinion — it threw the

thing off, to lay off it.

Then when I talked to John McKeon that Thursday,

and told him exactly the whole thing, what | thought,

what statements I had, he savs, “Wendell. don’t do

anvthing.” He says, “Let me get a meeting with Betty

Murphy, vou, and I.” He savs. “How are you the 16th and

17th, how are you —” W ednesday or Thursday, I think

it was, or Tuesday or Wednesday. I| said, “Fine, fine.

okay.”

He says, “I will call vou.” He called me back — I was

supposed to call him back. He called her, and went over

the whole thing with Betty including the incident about

the Irish thing. That is when the hand thing came into

play. Because he knew that I was very upset about this,

and that —

MR. STRICKLER: Your Honor, | think that Mr.

Young should not be testifving about conversations be-

tween Mr. McKeon and Ms. Murphy. He was obviously

not a party to that conversation, and he should not be

testifving about some conversation between two other

people.

JUDGE LADWIG: Sustained.

BY MR. SIGMOND:

Q. Did Mr. McKeon inform you that he had spoken

to Ms. Murphy?

A. Yes, ves, he told me. When I called him Friday,

he said that he would talk to Betty Murphy, and would |

be willing to have a meeting, and that he would set it up.

Because he could not make it. but he advised me that he

was going to send another gentleman in to set up the

meeting.

Q. Prior to the time that vou spoke to Mr. McKeon,

had Ms. Murphy complained about her arm at all?

A. No, I never heard anything. I never heard a word.

Q. Did vou hear anything about any allegation that

vou had assaulted her, and caused the bruises?

A. Nope, nope.

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Q. Go ahead.

A. That happened Friday. I mean that was the next

thing. | come walking in the office. | am walking up this

corridor. And she was like perching for you. She ran over

to me and says, “Look, see what you did to my arm. You

see what you did to my arm.”

MR. SIGMOND: The record should indicate that

Mr. Young is pointing.

THE WITNESS: I was pointing.

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