Retail Store Employees Union, Local 876

National Labor Relations Board - Board Decisions

Aug 18, 1975

219 N.L.R.B. 1188 (N.L.R.B. 1975)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Store Employees Union, Local 876, Retail
Clerks International Association, AFL-CIO and
Anna M. Pennacchini. Case 7-CA-10748
August 18, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On February 20, 1975, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding, finding that the Respondent violated
Section 8(a)(l) and (4) of the Act. Thereafter, the
Respondent filed exceptions and a supporting brief.'
The General Counsel filed a reply brief to the
Respondent's exceptions and brief, and appended
thereto his brief to the Administrative Law Judge.
Whereupon, the Respondent filed a motion to strike
the General Counsel's reply brief, and a supporting
brief . In the latter , the Respondent asserts, inter a/ia,
that the General Counsel's reply brief raises new is-
sues on which no cross-exceptions were filed. How-
ever, a fair reading of the Respondent 's own excep-
tions shows that the issue was raised at least as a
defense, and we perceive no material departure from
our own rules and regulations , as alleged. Therefore,
we find no merit in the Respondent 's motion to
strike.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings ,2 findings, and
i The Respondent also filed a motion requesting oral argument, which we
deny because the record and briefs adequately set forth the parties' posi-
tions.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc.. 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
We also find no merit in the Respondent 's exception to the Administra-
tive Law Judge's ruling that Pennacchini's statement , given to a Board agent
shortly after she filed charges , be rejected but made a part of the record as
a rejected exhibit . The Respondent proffered the statement for purposes of
impeaching Pennacchini 's testimony, and also as an admission against inter-
est. Finding no discrepancies in the witness' testimony and her affidavit, the
Administrative Law Judge rejected the proffer , but preserved the record by
receiving the document as a rejected exhibit . While so tentatively ruling on
the matter, the Administrative Law Judge gave the Respondent the opportu-
nity to "offer proof testimonially or narratively as he chooses" to dissuade
him.
We find it unnecessary either to affirm or reverse the Administrative Law
Judge's ruling, since in our view of the case Pennacchini's testimony, where
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The Administrative Law Judge found, and we
agree, that the Respondent violated Section 8(a)(1)
and (4) of the Act by discharging Anna Pennacchini I
"because she refused to appear voluntarily as a wit-
ness in the unfair labor practice proceeding involving
a former fellow employee (Barbara Frazier), on the
ground that she had no direct knowledge of the mat-
ters about which she was to be questioned." This
conclusion is supported by the record, including
Pennacchini's credited testimony. Therefore, we find
no merit in the Respondent's contention that she was
not requested to testify, because such an assertion is
contrary to her credited testimony.
In addition, the Respondent asserts that its attor-
ney acted in furtherance of sound professional dis-
cretion in not compelling Pennacchini's testimony,
and that the instant allegations of 8(a)(1) and (4) mis-
conduct cannot be based upon such a decision. But
we do not question counsel 's professional judgment
any more than we have any reason to believe that
counsel played a part in the discharge. Rather, at
issue here are the reasons for the discharge given by
the Respondent, through its chief executive officer,
Horace Brown. Thus, on November 14, 1973, Pen-
nacchini was handed a letter, signed by Brown, stat-
ing in part that she was being terminated for her "ex-
traordinary disloyalty" because "you [did]
conveniently `forget' those facts which you had pre-
viously told me about Mrs. Frazier, which had in
part influenced my decision to terminate her." It is
abundantly clear that Pennacchini's discharge was
motivated, at least in part, by her refusal to cooper-
ate with the Respondent at the October 16 meeting
when, in the presence of Brown and the
Respondent's counsel, she disclaimed firsthand
knowledge of Frazier's alleged shortcomings and in-
dicated further that "I know you would not want me
to testify to something I did not personally observe."
Pennacchini may have been wrong in her assess-
ment of the value of her testimony and her compe-
tence as a witness . Although her unsigned, unsworn
statement, taken by the Respondent in April, tends
to support her assertion in this regard, we need not
disputed, is not dispositive of our conclusion that Respondent violated Sec.
8(axl) of the Act. We find Brown's termination letter to Pennacchini dated
November 14, 1973 , to reflect clearly that at least a substantial part of
Respondent's motivation to discharge Pennacchini was because she did
"conveniently 'forget ' those facts which you had previously told me about
Mrs. Frazier ...:. Accordingly, we find that , regardless of whether the
Administrative Law Judge erred in his ruling , Respondent was not preju-
diced thereby in the presentation of its defense.
7 The Administrative Law Judge found that Pennacchini was an employ-
ee within the meaning of the Act. We agree for the reasons he stated. More-
over, we note that Pennacchini's alleged "managerial" status had drastically
changed in the months preceding her discharge which further weakens the
argument that she enjoyed such special status.
219 NLRB No. 187
RETAIL STORE EMPLOYEES UNION, LOCAL 876 1189
decide that issue . On the other hand , we cannot say
she acted with malice . In any event , as the Adminis-
trative Law Judge noted , the Respondent could have
lawfully tested this assessment and compelled the tes-
timony of this reluctant witness , but it failed to do so.
Instead, as an act of reprisal the Respondent dis-
charged her for lack of cooperation . Indeed, as we
read the discharge letter and the record in this case,
only if Pennacchini were unscrupulous could she
have avoided the opprobrium of "extraordinary dis-
loyalty," and the penalty it carried.
In these circumstances , we find that the Respon-
dent violated Section 8(a)(1) and (4) of the Act. The
Act protects employees from discrimination because
they choose to aid a fellow employee by giving testi-
mony in an unfair labor practice proceeding . See Lo-
cal 933, United Automobile, Aerospace and Agricultur-
al Implement Workers of America (UA W), 193 NLRB
223, 234 ( 1971). Here we find that this protection also
extends to an employee who, without malice, refuses
to give testimony , voluntarily , against a fellow em-
ployee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , Retail Store Employees
Union, Local 876 , Retail Clerks International Asso-
ciation , AFL-CIO , Detroit , Michigan , its officers,
agents , and representatives , shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
IvAR H . PETERSON , Administrative Law Judge : This case
was heard before me on 5 days , commencing October 3,
1974, and concluding on October 11, in Detroit , Michigan,
based on charges filed by Anna M. Pennacchini, an indi-
vidual , against Retail Store Employees Union , Local 876,
Retail Clerks International Association , AFL-CIO, herein
called the Union or Respondent.
On August 5, the Acting Regional Director for Region 7
issued a complaint and notice of hearing . Briefly stated, the
complaint alleged that the Respondent , through its agent
Horace Brown , secretary-treasurer , terminated the employ-
ment of Mrs. Pennacchini because she assisted a former
fellow employee , Barbara Frazier , "to vindicate her statu-
tory rights in an unfair labor practice proceeding . . . and
by rendering testimonial evidence to Frazier . . . ." In its
answer , dated August 6, the Respondent admitted certain
allegations of the complaint but denied that it had engaged
in any unfair labor practices.
Upon the basis of the entire record in the case ,' includ-
ing my observation of the witnesses as they testified and a
careful consideration of the briefs filed by counsel for the
Respondent and counsel for the General Counsel on No-
vember 21 and December 2, respectively ,' I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The constitution of the International provides that each
month the Respondent , and other unions similarly situat-
ed, pay to the International in Washington , D.C., a per
capita tax on each of the individual member 's monthly
dues payments received by the Respondent . During the
year ending December 31, 1973 , the Respondent trans-
mitted in excess of $100 ,000 in per capita taxes directly
from Detroit , Michigan , to the International . These facts
are admitted by the Respondent . I find that the Respon-
dent at all times material has been an employer engaged in
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act . The complaint further alleged that Brown, sec-
retary-treasurer , and Thomas Lodico , Sr., president, were
supervisors of the Respondent within the meaning of Sec-
tion 2( 11) of the Act, and agents of the Respondent. In its
answer, the Respondent denied that Brown was secretary-
treasurer and Lodico president , but admitted that Brown
was president and Lodico was secretary -treasurer, as in
fact was the case . The Respondent also admitted that it
terminated Pennacchini on November 14, 1973 , but denied
that such termination constituted an unfair labor practice.
11. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent contends that Pennacchini was not an
employee within the meaning of the Act and , in its brief,
stated that she was terminated because she-allegedly assist-
ed a fellow employee , Barbara Frazier, in the latter's ef-
forts , as stated in the complaint, "to vindicate her statutory
rights in an unfair labor practice; proceeding . . . by ren-
dering testimonial evidence to Frazier in that she told Fra-
zier of the Union 's efforts in establishing that Frazier had
been discharged for misconduct and she refused to testify
at the request of the Union in said unfair labor practice
proceeding." In this regard, Respondent 's counsel states
that the case was initiated by Pennacchini 's charge that she
had been terminated "in reprisal for her internal political
opposition as an employee-member to the Respondent's
President." Further , he points out that the case "languished
in the Advice Section in Washington pending the Board's
decision" in the Frazier case .3 He also calls attention to the
1 The upopposed motion of counsel for the Respondent that the transcript
of record be corrected in certain respects is hereby granted.
2 By telegraphic order dated November 20, time for filing briefs was ex-
tended to December 2. -
3 Retail Store Employees Union , Local No. 876, RCIA, AFL-CIO, 212
NLRB 113 (1974), which, it is contended , "itself was held to be governed by
the Board 's intervening decision in" Retail Clerks Union, Local 770, RCIA,
AFL-CIO, 208 NLRB 356 (1974 ). It is asserted that , in both of these cases,
Continued
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that, after the decision of the Board in the Frazier
case , the present proceeding continued to pend in the Ad-
vice Section and that, in the meantime, the Charging Party
amended her charge, near the end of the 6-month limita-
tion period, "not to add what ultimately became the grava-
men of this complaint . . . but that, 'A further reason for
the discharge was Anna Pennacchini's cooperation with
the National Labor Relations Board in the period of time
prior to her discharge.' " It is further asserted that, when
the complaint eventually issued , it contained allegations of
violations of Section 8(a)(1) and (4), "not on any of the
grounds asserted by the Charging party either in her origi-
nal or amended charge , but because Pennacchini had alleg-
edly assisted Barbara Frazier by 'rendering testimonial evi-
dence to Frazier in that she told Frazier of the Union's
efforts in establishing that Frazier had been discharged for
misconduct' and because Pennacchini 'refused to testify at
the request of the Union in said unfair labor practice pro-
ceeding.' " Finally, counsel argues that "by the time of and
during the trial," counsel for the General Counsel "had
abandoned all grounds except that Pennacchini had alleg-
edly been discharged for refusal to testify on behalf of the
Union in the Frazier case ." Counsel asserts that the latter
allegation "is patently untrue, incredible , unsupported by
the record and unsupportable by law" and that "despite
some cosmetics , the General Counsel is apparently still
trying this case in disregard of the Board's holdings" in
prior cases,4 and "that in an action against a union qua
employer, the rights of the charging party and the responsi-
bilities of the respondent are to be measured as in conven-
tional" proceedings under Section 8(a) against other em-
ployers. Thus, counsel for the Respondent states that he
will demonstrate that counsel for the General Counsel has
not sustained his actual burden of proof, has failed to state
or prove a legal cause of action, and, finally, that a back-
pay and reinstatement order "would be contrary to law."
Counsel for the General Counsel asserts that the Re-
spondent violated Section 8(a)(1) and (4) by terminating
Pennacchini for refusing to testify regarding certain mat-
ters on behalf of the Respondent in an unfair labor prac-
tice hearing and that , moreover, the Respondent violated
the same sections by discharging Pennacchini "for disclos-
ing certain information to the alleged discriminatee in that
unfair labor practice case , which information aided the al-
leged discriminatee in" her preparation for trial, and that
Pennacchini was merely a rank -and-file employee , rather
than a managerial employee as contended by the Respon-
dent.
III. DISCUSSION
Pennacchini was originally hired by the Union in 1967.
By her own choice, she left on two occasions and began her
last period of employment in August 1969. Her job then
was to proofread collective-bargaining agreements , prepare
"the Board repudiated the theory of Advice and of the General Counsel that
a charge against a union qua employer which alleged discriminatory reprisal
by it on account of internal union political activities by member -employees
stated a Section 7 right or a Section 8(a) violation."
4 Counsel refers to the two cases cited in fn . 3, supra.
flyers and handbills, as well as articles for the Union's
newspaper, and, in addition, make photographic layouts
for the use of union organizers and representatives. In ad-
dition, she occasionally ran the duplicating machine in the
office. When she went to work, her immediate supervisor
was Hershel Womack, the chief executive officer of the
Union, who later was succeeded by Brown. Pennacchini
testified that she had nothing to do with the policies con-
cerning what should go into the paper and that she did not
attend any strategy meetings of union officials . In the 1973
campaign for the election of officers of the Union, Pennac-
chini supported her exhusband, Ray Soncrant , and in that
regard she prepared and ran off campaign literature in his
behalf. In connection with mailing out the leaflets, Pennac-
chini utilized a typewriter which she had at her home, that
had been purchased and paid for by Soncrant and deliv-
ered to her home.
Following the mailing of certain handbills, Lodico called
her into his office . He showed her a handbill that related to
the question of members voting for dues reduction, and
compared it with a piece of copy that she had prepared for
another matter and, so she testified , "mentioned that the
type was identical and it appeared that it was done on the
same machine ." She told him that that was not the case. A
few days later, toward the end of August , Brown called her
into his office ; Lodico was present . Brown asked if she
would do some work on his campaign but stated that it
would be illegal for that to be done at the office and men-
tioned that perhaps she had equipment at her home. She
stated she was not interested . Following that meeting, so
Pennacchini testified, matters "changed in the office." She
related that she "no longer had any duties to perform," and
that when she endeavored to solicit work she was told that
the matter would be considered but she was not given any
work other than at the request of organizers . About the last
week in August when she came to the office her telephone
had been disconnected.
Frazier's husband , a former business representative of
the Union, was running for office during the 1973 election
campaign . Frazier was terminated in or about October
1972. When Frazier's case was about to go to trial, Mary
Ellen Tereschco , Brown 's personal secretary, told Pennac-
chini she should prepare for Frazier 's hearing ; however,
Pennacchini stated that she would not be there as she was
going on vacation , which had been scheduled on two occa-
sions; however, she did not go on vacation . Brown spoke to
Pennacchini about the Frazier case on more than two oc-
casions . In January or Febraury 1973, some 3 or 4 months
after Frazier had been terminated in October 1972, he told
her to type up a list of alleged violations committed by
Frazier. Pennacchini testified that she had never personally
observed any of the alleged violations committed by Frazi-
er but that Brown mentioned that Frazier had had her hair
done and went shopping "on company time."
On October 15, Tereschco handed Pennacchini a docu-
ment informing her that she should appear at the office of
counsel for the Respondent at 2 p.m. the following day.
She did so and found that Brown and Soncrant were also
there . Counsel for the Union handed her the list that she
had prepared at Brown 's request and asked her, as she tes-
tified, " if she was prepared to testify at Barbara Frazier's
RETAIL STORE EMPLOYEES UNION, LOCAL 876 1191
trial the following day, to substantiate these alleged viola-
tions." In response, she said she had "never personally ob-
served any of these." She was not called to testify in the
Frazier hearing. When Brown handed Pennacchini her ter-
mination letter, dated November 14, Brown told her, after
she read the letter, that the Union, as she supposedly knew,
had been phasing out her work. She replied that she was
not aware of that matter.
Pennacchini testified that she spoke to Frazier on several
occasions before October 17, and placed the time as begin-
ning in the latter part of August and until the hearing. She
related that Frazier called her at her home and expressed
surprise at finding out that someone other than her hus-
band intended to enter the race for president of the Union.
According to Pennacchini, Frazier stated that the hearing
in her case had been scheduled and that she was sure that
Pennacchini would appear against her. To this, Pennacchi-
ni replied that she would not appear. She did not do so.
In his brief, counsel for the Respondent ably argues that
Pennacchini was a managerial employee and, moreover,
that her termination came about because her position was
eliminated. He further contends that, whether or not Pen-
nacchini was a managerial employee, it is not a violation of
the Act to terminate an employee because of his alleged
refusal to testify and, in addition, that Pennacchini's unau-
thorized action in divulging confidences of her employer
and its attorney, including the mailing list of the Union,
was unprotected under the Act. We will first consider the
contention regarding Pennacchini's managerial status.
We have set forth above the essential facts relating to the
nature of the work performed by Pennacchini for the Re-
spondent, and it seems unnecessary to repeat these find-
ings. Webster's Third International Dictionary (Una-
bridged) defines the term "manager" as "one who
manages," that is, "a person that conducts, directs, or su-
pervises something" or "a person whose work or profession
is the management of a specified thing (as a business, an
institution, or a particular phase or activity within a busi-
ness or institution)." The term "managerial" is defined as
"of, relating to, or characteristic of a manager." Counsel
for the Respondent, in his brief, argues that Pennacchini
was the de facto editor of the Union's newspaper, was in
charge of its publications and public relations generally,
and acted as the special representative of Brown. Counsel
concedes that the chief executive officer was the titular
editor, pursuant to a requirement of the constitution of the
International and, as such, was responsible for the formu-
lation of the policies of the Union and its newspaper; how-
ever, he argues that "the fact is that the day-to-day opera-
tion of the newspaper was by Pennacchini until two or
three months before her termination, when Harold De-
Long, as editorial consultant became the successor editor,
as an independent contractor." Referring to the substantial
number of newspaper exhibits placed in the record, counsel
argues that the responsibility of the editor was "to imple-
ment the Union's policies, to `mirror the image' of the
Union and its officers . . . and to serve as their `alter
ego."' It is urged that Pennacchini, on rather frequent oc-
casions, would consult with the officers, either individually
or together, and that, with regard to the content of the
newspaper or leaflets, she would be acquainted with confi-
dential information. Conceding that the officers were final-
ly responsible for the content of articles prepared by Pen-
nacchini and approved by them, he points out that she and
the officers quite obviously worked closely together in or-
der to assure that the policy of the Union was implemented
and that the translation of policy into content was done by
Pennacchini alone until the retention of DeLong in 1973,
when she sahred such responsibilities with him until her
responsibilities were eliminated.
Counsel suggests that the contention by counsel for the
General Counsel "that Pennacchini was some kind of a
`clerical' whose responsibilities merely involved the taking
of photographs is absurd." In this regard, he points out
that at the time she was terminated Pennacchini was mak-
ing approximately $275 a week and was also receiving a
$50-per-week expense allowance, a rate of compensation
comparable to that of the remaining "staff" representatives
of the newspaper, namely, the business representatives of
the Union who also received a weekly expense allowance
and who, along with Pennacchini, were required to attend
the membership meetings of the Union as a condition of
employment. He points out that Pennacchini's pay scale
was approximately $100 above that of hourly rated em-
ployees in the office and clerical bargaining unit repre-
sented by Local 10, who worked under a union shop agree-
ment, of which unit Pennacchini had been a member
several years earlier. She had withdrawn from that unit
when she ceased to be a clerical employee. Counsel also
calls attention to the fact that Pennacchini, as a witness in
an arbitration case, identified her responsibility as "publi-
cations." Counsel contends that it is "an insult to the intel-
ligence of one evaluating this record to suggest that Pen-
nacchini was a menial employee without significant
responsibility or authority" or "to suggest she could have
fulfilled her responsibility without consultation with the ex-
ecutive officers or without serving the purpose of reflecting
their policy viewpoints."
Counsel for the Respondent emphasizes that he makes
no claim that Pennacchini was a supervisory employee but
that the contention upon which he relies is that "she was an
employee so closely identified with management that she
could not be regarded as a rank and file employee subject
to Section 7 protections." He points out that all office and
clerical employees were required to be members of the bar-
gaining unit represented by the Office Employees Union
and that, if Pennacchini had been a clerical employee, she
would have been part of that unit. All other employees of
the Union were required, as a condition of employment, to
be members of the Union which, however, was not their
bargaining representative; this was true of business agents
and of Pennacchini, who was regarded as a special repre-
sentative, and of certain maintenance employees. He main-
tains that prior decisions held that "such required member-
ship as a condition of employment is irrelevant to a charge
against a union qua employer under the Act." 5 He also
5 In addition , he refers to the Board 's decision in Retail Store Employees
Union, Local 428, AFL-CIO, 163 NLRB 431, 432-433 (1967), where the
Board stated.
A union-employer, dust as any other employer, may impose on its
Continued
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cites the rationale employed by the General Counsel and
the advice section in connection with the termination of
Curtis Frazier, a business agent of the Union, and the hus-
band of Barbara Frazier. In that case, the Agency ex-
pressed the opinion that a business representative was one
"who implemented union policy" and that, in conse-
quence, the union as the employer was "viewed as privi-
leged to remove him from employment in such a position
involving, as it did, the carrying out of the Employer's
`management' policy." Subsequently, the advice section, in
connection with the Barbara Frazier case, summarized the
previous memorandum concerning Curtis Frazier as hold-
ing that a complaint was not there warranted "based on his
refusal to support the newly-elected official, because his
position in the Union hierarchy, that a business agent, was
considered to be one which effected Union 'management
policy,' and from which the Union could demand undivid-
ed loyalty." Accordingly, Respondent's counsel states that
if, as counsel for the General Counsel in that proceeding
conceded with respect to a number of business agents of
the Union, namely, that they were involved in the imple-
mentation of management policy of the Union and there-
fore owed undivided loyalty to the Union, it necessarily
follows that "the Union can insist upon the same and more
from Pennacchini who was involved in confidences which
not even the business agents shared, and who quite clearly
was the 'alter ego' of the Union's executive officers, ex-
pressing herself in their names."
In the view of counsel for the Respondent, a decision of
the Court of Appeals for the Tenth Circuit, Wichita Eagle
& Beacon Publishing Co., Inc. v. N. L R. B., 480 F.2d 52
(1973), "emphasizes the validity of these views." There, the
court, in refusing to enforce an order of the Board, held
that an editorial writer, who was responsible to an editorial
page editor, who in turn was responsible to the editor and
publisher of the newspaper, "was nevertheless an active
participant in 'formulating, determining and effectuating'
the newspaper's journalistic policies, and therefore [was]
a managerial employee." In sum, counsel suggests that
without regard to "the label attached to her, Pennacchini
was so closely identified with the executive officers and
policies of the Union that she owed a responsibility of un-
divided loyalty, even beyond the loyalty which may be ex-
acted of any employee," and that, as a managerial employee
employees requirements reasonably related to the proper performance
of their jobs . Here , for example , a field representative, in conducting
the Respondent's business , might be asked to explain how the Respon-
dent functions as a collective-bargaining representative , or why it is
desirable for workers to organize. It is clearly proper for the Respon-
dent to be concerned about not hiring employees who do not ade-
quately understand or agree with the Respondent 's general goals as
well as its specific methods of operation and ways of achieving its goals
to the extent such understanding is necessary for the performance of
their duties . We deem it not unreasonable , therefore, for a union-em-
ployer normally to require its employees to attend its meetings and
fulfill certain other obligations of regular union membership. Indeed, in
this sense and because of the undesirability of a per se rule in this
critical area of labor relations , we believe that a union -employers re-
quirement that its employee belong to it, pay dues, fees, and assess-
ments to it, and attend its meetings need not , in and of itself, violate the
Act.
or "as one otherwise so closely identified with manage-
ment, she would not be entitled to Section 7 rights or the
beneficiary of Section 8(a) responsibilities."
In a more recent decision involving the issue of manage-
rial employees (N.L.R.B. v. Bell Aerospace Company, Divi-
sion of Textron, Inc., 416 U.S. 267, (1974) ), the Court made
the following observations:
Following the passage of the Taft-Hartley Act, the
Board itself adhered to the view that "managerial em-
ployees" were outside the Act. In Denver Dry Goods,
74 N.L.R.B. 1167, 1175 (1947), assistant buyers, who
were required to set good sales records as examples to
sales employees, to assist buyers in the selection of
merchandise, and to assume the buyer's duties when
the latter was not present, were excluded by the Board
on the ground that "the interests of these employees
are more closely identified with those of manage-
ment." The Board reiterated this reading of the Act in
Palace Laundry Dry Cleaning, 75 N.L.R.B. 320, 323 n.
4 (1947):
"The determination of 'managerial,' like the de-
termination of 'supervisory,' is to some extent neces-
sarily a matter of the degree of authority exercised.
We have in the past, and before the passage of the
recent amendments to the Act, recognized and de-
fined as 'managerial' employees, executives who for-
mulate and effectuate management policies by ex-
pressing and making operative decisions of their
employer, and have excluded such managerial em-
ployees from bargaining units. We believe that the
Act, as amended, contemplates the continuance of
this practice." [Citations omitted.]
The Board's exclusion of "managerial employees"
defined as those who "formulate and effectuate
management policies by expressing and making op-
erative the decisions of their employer," has also
been approved by courts without exception... .
i a * k
In sum, the Board 's early decisions, the purpose
and legislative history of the Taft-Hartley Act of
1947, the Board 's subsequent and consistent con-
struction of the Act for more than two decades, and
the decisions of the courts of appeals, all point un-
mistakably to the conclusion that "managerial em-
ployees" are not covered by the Act. We agree with
the Court of Appeals below that the Board "is not
now free" to read a new and more restrictive mean-
ing into the Act. 475 F.2d, at 494.
We turn now to a consideration of the contention of the
Respondent that it is not a violation of the Act to terminate
an employee because of his alleged refusal to testify. As
stated above , on October 16 Pennacchini appeared at the
office of counsel for the Respondent as requested . She was
there shown a list, which she had prepared in January or
February at Brown 's request , of alleged violations commit-
ted by Frazier. Pennacchini testified that counsel for the
RETAIL STORE EMPLOYEES UNION, LOCAL 876 1193
Union asked her "if she was prepared to testify at Barbara
Frazier's trial the following day, to substantiate these al-
leged violations." She stated in response , that she had not
"personally observed any of these." She was not called
to testify and, so far as appears , she was not subpenaed to
appear at the Frazier hearing.6 Counsel for the General
Counsel argues that Pennacchini 's refusal to testify was
privileged under the Act inasmuch as she "had the right
not to testify in a manner that she thought to be false." He
urges that since Section 8(a)(4) "seeks to protect the integ-
rity and efficacy of the Board' s processes , it appears to the
General Counsel that an employee's refusal to testify false-
ly must be as much protected as the act of testifying." 7
Attorney Sachs , counsel for the Respondent, testified
that he interviewed Pennacchini and other employees of
the Union on April 6, 1973, in regard to the Frazier case
which was then scheduled to be heard on or about April
25. In addition, on that occasion, he had a private inter-
view with Pennacchini. He testified that Pennacchini re-
ferred to the fact that her office was situated at a point
where she could observe pedestrian traffic going by her
office and that she observed that various of the checkers,
including Frazier, would come to staff meetings in the af-
ternoon in clothes different from those they had worn in
the morning, from which, she concluded, that they had
gone home on worktime in order to change clothes. In ad-
dition, he related that Pennacchini told him that Frazier
and other checkers had kept hairdresser appointments on
worktime and that she had informed Brown of reports
made to her, of which she did not have personal knowl-
edge, prior to the time Frazier was terminated. Sachs fur-
ther related that he requested Pennacchini and each of the
other persons interviewed on April 6 to prepare a state-
ment concerning those matters of which they had knowl-
edge . He received such a statement from Pennacchini,
which substantially confirms his testimony given in the
present proceeding . The hearing in the Frazier case did
not, in fact, begin until mid-October. Shortly before the
hearing Sachs again interviewed Pennacchini in the pres-
ence of Brown and Soncrant . He related that he questioned
her about the matters that they had gone over in the April
meeting, and stated that Pennacchini told him "that she
really hadn't been referring to Barbara Frazier, she was
referring to various of the other checkers" concerning hair-
dresser appointments and the like. With regard to alleged
conversations she had had with Brown prior to Frazier's
termination, in particular about the list she had made, she
responded "that she really was without personal knowl-
edge, or that I had misunderstood what she had previously
told me. Or that she had only heard hearsay, or that I was
confused and she was talking about other people, or she
made reference to other checkers and so on." Neither Pen-
nacchini nor Soncrant was called to testify in the Frazier
case . Sachs testified that he dealt with Pennacchini "from
time to time . . . as editor of their newspaper in connection
with the public relations work for the union, including the
preparation of organizing leaflets, campaign material, com-
munications to members, those whom the union sought to
be organized; and generally these would relate to her con-
sulting with me for my legal judgment and counsel with
respect to proposed materials."
As a witness for the Respondent, Brown testified that
until the present proceeding he had no information or re-
port of what Barbara Frazier said to Pennacchini or what
Pennacchini said to Frazier concerning the Barbara Frazi-
er case . He further related that after Pennacchini was ter-
minated the physical space that she had used previously
was taken over by the legal secretary and the department
was completely eliminated. He also testified that he had
frequent occasion to talk to Pennacchini about her prepa-
ration of the union newspaper and that she "generally
counseled with me on the preparation of his [Womack's]
editorial." He further testified that Pennacchini prepared
articles "entirely on her own, without counseling with any
of the executive officers," and that on many occasions Pen-
nacchini would sit in with himself and other executive offi-
cers when an organizational campaign was in preparation
in order to aid her in composing handbills and other orga-
nizational literature. He also testified that on a number of
occasions he discussed with Pennacchini the confidentiali-
ty of the union's mailing list .8 Brown denied that he told
Pennacchini to make up a list of items that would reflect
misconduct on the part of Frazier although he understood
that she had made up such a list because she had shown it
to him.
Conclusions
6 Pennacchini testified that , when she was called into the office of counsel
for the Union , he asked her "if I was prepared to testify at Barbara Frazier's
trial, the following day, to substantiate these alleged violations. And I said I
never personally observed any of these." Upon further inquiry by counsel.
Pennacchini related that she again said she had not observed the incidents
contained on the list and stated that "I know you would not want me to
testify to something I did not personally observe."
7In support thereof , he cites Commerce Concrete Company, Inc., 197
NLRB 658 (1972), in which the Trial Examiner rejected a contention that
the alleged discriminatee was not protected by Sec . 8(a)(4) because he "did
not actually testify or otherwise adversely affect Respondent ." In this re-
gard, the Trial Examiner concluded that Sec . 8(aX4) protects employees
"against discrimination for giving information informally in connection
with a representation proceeding . While the record does not show what
Smith [the alleged discriminates ] actually did in connection with the repre-
sentation proceeding beyond appearing in response to a subpoena and sit-
ting with counsel ," he previously had found that the Respondent "suspected
that he gave the Union or the Board information helpful to the Union's
position and adverse to Respondent's, and that that was the reason Respon-
dent discriminated against" him.
With regard to the contention that Pennacchini was a
managerial employee, I am persuaded and find that she
was not. Although she performed duties that placed her
somewhat above the level of other clerical and office em-
ployees, the evidence, on balance, convinces me that she
was not in the managerial category. As we have seen, she
frequently consulted with the executive head of the Union
and, while she exercised considerable independence of
judgment respecting the specific content of the editorials
she wrote on behalf of the head of the Union, they were
8 There was considerable evidence produced regarding the preparation,
access to, and alleged use of the mailing list for unauthorized purposes. This
matter is not dealt with to any substantial extent in the briefs . I have consid-
ered it but am of the view that it is somewhat inconclusive and in any case
would not alter the conclusions I reach.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to discussion with her superiors before being com-
posed and published.
Nor do I believe that Pennacchini gave false testimony,
as suggested in the brief of counsel for the Respondent. I
have attempted carefully to weigh the testimony of all wit-
nesses and , from my observation of them as they testified
and a study of the record , I come to the conclusion that
Pennacchini was an essentially truthful witness . She ap-
peared to pay close attention to questions put to her and
carefully but readily answered. Accordingly, I conclude
and find that the Respondent terminated Pennacchini be-
cause she refused to appear voluntarily as a witness in the
unfair labor practice proceeding involving a former fellow
employee, on the ground that she had no direct knowledge
of the matters about which she was to be questioned; her
presence at the hearing , moreover , was not sought to be
compelled by subpena . In these circumstances , I conclude
that her right not to appear was protected by the Act. Ac-
cordingly, I find that the Respondent violated Section
8(a)(4) and ( 1) by discharging her.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Retail Store Employees Union, Lo-
cal 876, Retail Clerks International Association, AFL-
CIO, is an employer and a labor organization within the
meaning of Section 2(2), (5), and (6) of the Act.
2. By discharging Anna M. Pennacchini on November
14, 1973, the Respondent violated Section 8(a)(4) and (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II
above, occurring in connection with the operations of the
Respondent as described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(l) and (4)
of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. It will be
recommended that the Respondent offer Anna M. Pennac-
chini immediate and full reinstatement to her former posi-
tion or, if that position is not available, to an equivalent
position, without prejudice to her seniority and other rights
and privileges , and make her whole for any loss of earnings
she may have suffered by reason of the discrimination
against her, by payment to her of a sum of money equal to
that which she would have earned from the date of her
discharge to the date of the offer of reinstatement , consis-
tent with Board policy set forth in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest on backpay to be
computed in the manner set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and the entire record in these proceedings,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
Respondent, Retail Store Employees Union, Local 876,
Retail Clerks International Association, AFL-CIO, its offi-
cers, agents , and representatives , shall:
1. Cease and desist from discharging or otherwise dis-
criminating against any employee for testifying or, absent
testimonial compulsion, refusing to testify in any proceed-
ing before the Board , or in any other manner interfering
with , restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Anna M. Pennacchini immediate reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority and other rights and privileges.
(b) Make Anna M. Pennacchini whole for any loss of
earnings she may have suffered by reason of Respondent's
unlawful discrimination against her in the manner set forth
in the section of this decision entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all pay-
roll records, reports, and all other records necessary to ana-
lyze the amounts of backpay due under the terms of this
recommended Order.
(d) Post at its offices and place of business in Detroit,
Michigan, copies of the attached notice marked "Appen-
dix"' Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed by
Respondent's representative , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent Union has taken to comply herewith.
9 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided by Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
1s In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
RETAIL STORE EMPLOYEES UNION , LOCAL 876 1195
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against Anna M. Pennacchini , or any other member
or employee , for refusing to testify in a Labor Board
proceeding , when not so required by legal process.
WE WILL NOT in any other manner restrain or coerce
employees or members in the exercise of any right
guaranteed under Section 7 of the Act , including the
right to refrain from engaging in any or all of the ac-
tivities guaranteed thereunder, except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a)(3)
of the Act.
WE WILL offer immediate reinstatement to and make
whole Anna M. Pennacchini for any loss of earnings
she may have suffered by reason of our discrimination
against her.
RETAIL STORE EMPLOYEES UNION, LOCAL 876,
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-
CIO