The M. O'Neil Co.

National Labor Relations Board - Board Decisions

Jan 24, 1972

195 N.L.R.B. 22 (N.L.R.B. 1972)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company d/b/a The M.
O'Neil Company and Retail Clerks International
Association , Local No. 698, AFL-CIO. Case 8-CA-
6286
January 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On September 15, 1971, Trial Examiner Abraham
H. Mailer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings, and conclusions only to the extent consistent
herewith.
The Trial Examiner found that employee Charles
Patterson was discharged in violation of Section 8(a)(4)
and (1) of the Act for giving an affidavit to the Board
agent. Patterson was hired by Respondent in Novem-
ber 1968 and was assigned to Respondent's security
department. On January 16, 1971, Patterson became
physically unable to handle the work and went on sick
leave. A few weeks later, Patterson's supervisor, Stan
Kostewicz, heard that Patterson was doing investiga-
tive work for an attorney, but Kostewicz was unable to
reach Patterson to verify this rumor. On February 2,'
Patterson met with a Board agent and gave the agent
an affidavit detailing facts related to a pending unfair
labor practice charge against Respondent. The next
day, on doctor's orders, Patterson left for Florida, but
on his return trip to Akron was involved in an automo-
bile accident near Berea, Kentucky. During this time,
Respondent learned that Patterson allegedly had told
his wife that he had either sold or disposed of classified,
confidential information concerning Respondent's
management. In an effort to contact Patterson regard-
ing this matter, Kostewicz heard about the accident
and the fact that Patterson was hospitalized in Berea.
Kostewicz telephoned the Kentucky State Patrol,
spoke with the trooper who had investigated the acci-
dent, and was told that Patterson had listed his employ-
ment as "an investigator for an attorney." Kostewicz
then called the hospital and left word for Patterson to
return his call, but Kostewicz did not hear from him.
' All dates are 1971 unless otherwise noted
On February 15, Kostewicz met with his superiors to
review this information, and it was decided that Koste-
wicz should immediately go to Berea . Upon his arrival
at the hospital, Kostewicz entered Patterson's room,
but as he found that someone else was visiting with
Patterson, he told Patterson that he would like to talk
to him and would return after having a cup of coffee.
While he was waiting, Kostewicz had a brief exchange
with George Hennigin, organizing director of the Un-
ion, who then went to Patterson's room. Hennigin re-
turned a few minutes later and told Kostewicz that
Patterson did not want to speak to him, a matter which
Patterson later confirmed when Kostewicz tried to call
Patterson's room. Hennigin also mentioned that Pat-
terson had already given an affidavit to the Board. Two
days later, Kostewicz and Randall, Respondent's vice
president of operations, interviewed Mrs. Patterson to
verify that Patterson had told her he had classified
information regarding management . Patterson was dis-
charged the next day.
The Trial Examiner rejected each of the reasons of-
fered by Respondent for Patterson's discharge as being
more of an after thought than an actual cause. He was
of the view that four of the alleged causes-Patterson's
poor work record, the fact that he was working while
on sick leave, his trip to Florida while on sick leave, and
Kostewicz's inability to reach Patterson to clarify these
rumors-were not the real reasons, since Respondent
did not discharge Patterson when each purported rea-
son became apparent. With respect to the other reason
for the discharge, the fact that Patterson had classified
information concerning management, the Trial Exam-
iner concluded that although this was the compelling
reason for Kostewicz's flight to Berea, it was then that
Respondent learned of the affidavit, and this was why
Patterson was discharged. We disagree.
In our opinion, the General Counsel has not sus-
tained his burden of proof in this case. The mere fact
that the discharge occurred a short time after Respond-
ent was told of the affidavit does not alone afford a basis
for finding a violation. More importantly, the record
clearly establishes that Respondent had ample justifica-
tion for the discharge. First, there was Patterson's poor
work record. Then, when Respondent learned that he
was working while on sick leave and had taken a trip
to Florida during his sick leave, it was unable to reach
him regarding these matters. Finally, Respondent
heard that Patterson had either sold or disposed of
classified, confidential information regarding manage-
ment. It is clear to us that Respondent regarded all of
this conduct as a matter of serious concern, and be-
cause of the possible leak of confidential information
sent Kostewicz to Berea to clarify these problems. Al-
though the timing of the discharge, 3 days after Re-
spondent learned of the affidavit, is a suspicious cir-
cumstance, we note that even after Randall heard about
195 NLRB No. 12
THE M . O'NEIL COMPANY 23
the affidavit , he contacted Patterson 's wife specifically
to verify that the statement concerning classified infor-
mation was made . As such an effort would have been
completely unnecessary if Respondent planned to dis-
charge Patterson because of his giving of the affidavit,
we are convinced that Respondent was not motivated
to terminate Patterson 's employment for that reason.
We believe that the evidence is overwhelming that Re-
spondent was indeed dissatisfied with Patterson as an
employee, and that all of his conduct (aside from the
affidavit), taken together , culminated in his discharge.
Under these circumstances , we find that the General
Counsel has failed to prove by a preponderance of the
evidence that Respondent discharged Patterson for an
unlawful reason . Accordingly , we shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
of general merchandise and through its operating division,
known as the M. O'Neil Company , operates department
stores in the vicinity of Akron , Ohio, including the downtown
Akron store, which is the only location involved herein. Re-
spondent , in the course and conduct of its business operations
at its downtown Akron store, annually sells products valued
in excess of $1,000 ,000, and it annually receives goods valued
in excess of $50 ,000 directly from points located outside the
State of Ohio . Accordingly , I find and conclude that the
Respondent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act for
the Board to assert jurisdiction here.
II THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , Local No. 698,
AFL-CIO, herein called the Union , is, and has been at all
times material herein , a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE ISSUES
1. Whether the Respondent discharged Charles Patterson
because he gave a statement to the Board , in violation of
Section 8(a)(4) and (1) of the Act.
2. Whether Patterson was a "confidential employee" and,
if so , whether he is entitled to the protection of the Act.
IV THE ALLEGED UNFAIR LABOR PRACTICES
TRIAL EXAMINER 'S DECISION
ABRAHAM H. MALLER , Trial Examiner : On February 22,
1971, Retail Clerks International Association , Local 698,
AFL-CIO , filed a charge, and on April 14 , 1971, an amended
charge , against The May Department Stores Company doing
business as The M. O'Neil Company, herein called the Re-
spondent. Upon said charge , the Regional Director for Re-
gion 8 of the National Labor Relations Board, herein called
the Board , on April 19, 1971 issued on behalf of the General
Counsel a complaint against the Respondent . Briefly, the
complaint alleged that the Respondent had discharged
Charles Patterson , an employee , because he had given tes-
timony under the Act and/or because he had , or Respondent
believed he had, joined , assisted, or favored the Union, in
violation of Section 8(a)(3), (4), and (1) of the National Labor
Relations Act, as amended (29 U.S .C. Sec . 151, et seq.),
herein called the Act . In its duly filed answer , the Respondent
denied any violations of the Act.
Pursuant to notice , a hearing was held before me at Akron,
Ohio , on July 1 , 1971. All parties were represented at the
hearing and were afforded full opportunity to be heard, to
introduce relevant evidence , to present oral argument and to
file briefs with me. Briefs were filed by counsel for the General
Counsel and by the Respondent on August 23, 1971. Upon
consideration of the entire record ' and the briefs , and upon
my observation of each of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The May Department Stores Company is now , and has
been at all times material herein , a corporation organized
under and existing by virtue of the laws of the State of New
York , with its principal offices and place of business located
in St . Louis , Missouri. Respondent is engaged in retail sales
' The Respondent has filed a motion to correct the record in certain
particulars No opposition to the motion has been filed . Upon consideration
of the motion , it is hereby ordered that the record be corrected as requested.
A. Background and Sequence of Events
Respondent is engaged in the operation of retail depart-
ment stores in the Akron , Ohio , area . As have other retail
department stores , Respondent has experienced substantial
losses resulting from the theft of merchandise and funds by
employees as well as nonemployees . In an effort to solve this
problem , Respondent employs a Security Department and
utilizes various visual and audio monitoring aids. Among
these is the monitoring of telephones to determine whether
any employees were contributing to the shortages and to find
out if the employees were handling customers properly.'
Charles Patterson was first hired by the Respondent in
November 1968 , as an extra employee working as a salesman
in the cosmetic department . He became a full-time permanent
employee in the Security Department on March 24, 1969. He
worked as a floor detective until April 11, 1969, when he quit
without notice . The following November , Patterson ap-
proached Stan Kostewicz , the Respondent 's security direc-
tor, concerning the possibility of reemployment . After a full
discussion during which Kostewicz advised Patterson that if
given another chance , he would have to abide by the Com-
pany 's rules and regulations , he was rehired as a floor detec-
tive on November 14, 1969 , and became a permanent em-
ployee on April 13, 1970.
For the past 3 years, the Union has been attempting to
organize the employees of the Respondent. According to Pat-
terson, in addition to checking on inter-store theft, he had
been directed to observe union sympathizers in the store and
to monitor the telphone wire taps of union personnel and to
take down any such conversations.'
' Respondent monitored six or seven telephones at one time Selection
of the telephones to be monitored was changed from time to time
' The foregoing is the testimony of Patterson, but I make no finding with
regard to it The question whether the Respondent engaged in surveillance
of its employees' union activities was not an issue in this proceeding, but,
I was informed , is an issue in a pending proceeding The evidence was
received only as events leading to Patterson's giving an affidavit to the
Board
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 17, 1970, Patterson was involved in an au-
tomobile accident while working for the Respondent, and was
hospitalized. He returned to work for 1 day on December 7,
and was off again until December 22, when he returned for
a period of 3 weeks.
When Patterson returned to work on December 22, he was
assigned by Kostewicz to the Respondent's Gilchrist Road
warehouse, but was directed to report to the downtown store,
ring in , go to the warehouse, complete his assigned work,
return to the downtown store and ring out at the conclusion
of his workday. Despite these instructions, during the week
following his return to work, Patterson wrote in his own
timecard and did not report to the downtown store. During
this week, repeated efforts by Kostewicz to contact Patterson
at the warehouse were of no avail. In January 1971, Patterson
approached Kostewicz and asked for an easier job, stating
that he did not feel up to the job previously assigned. He was
thereupon assigned to the job of sitting at the employees'
entrance from 10 in the morning until 5:30 at night. On
January 16, Patterson told Kostewicz that he could not han-
dle this job and that he felt he should stay home. Kostewicz
asked him to keep in touch and to let the Respondent know
when he could return to work. This was the last date on
which Patterson performed any services for the Respondent.
In the latter part of January or early February 1971, Koste-
wicz heard from various sources that Patterson was doing
investigatory work for an attorney and was also doing some
sort of undercover work involving narcotics in Kent, Ohio.
Commencing early in February, Kostewicz tried to get in
touch with Patterson, calling his home from 8 to 12 times,
leaving word at various places for Patterson to return his
calls, and questioning Patterson 's brother who is also em-
ployed in the Respondent's Security Department. Kostewicz
did not hear from Patterson.
In the meantime, on February 2, 1971, Patterson met with
a Board agent at the Union's office and gave the Board agent
an affidavit detailing his alleged surveillance activities on be-
half of the Respondent. At the time, Patterson was on sick
leave from his job for the Respondent. The next day, Patter-
son left for Florida, according to Patterson, on the advice of
his physician. He was there 10 days, and on February 13, on
his way back from Florida, was involved in an automobile
accident near Berea, Kentucky.
During the weekend of February 13 and 14, Respondent
learned of Patterson's automobile accident and that he was
hospitalized in Berea . Kostewicz obtained this information in
a telephone conversation with the foster parents of Patterson.
He thereupon telephoned the hospital, representing himself
to be Patterson's brother-in-law, to inquire about Patterson's
condition. Informed of Kostewicz's call, Patterson called
George Hennigin , organizing director of the Union, and told
him that Kostewicz had been frantically trying to locate him
and that he felt that Kostewicz would be showing up at the
hospital. He asked Hennigin to come to the hospital. Henni-
gin replied that he would either come or send someone soon.
Hennigin then called the international office of the Union in
Cincinnati and asked them to send someone to Patterson.
This was done.
Clarence Randall, Respondent's vice president of opera-
tions, also learned of Patterson's accident in a telephone con-
versation with his daughter who worked with Patterson's
estranged wife. She told him that Mrs. Patterson had learned
about the accident from Hennigin who phoned her about it
and told her that if officials of the Respondent bothered her,
she was to get in touch with him and he would see to it that
she was taken care of. Randall's daughter also told him that,
in an earlier conversation, Mrs. Patterson had related that
Patterson had told her that he was in possession of classified
security information regarding management people of the
Respondent and that he had sold or disposed of it.`
On Monday, February 15, 1971, Randall met with officials
of the Respondent and with Kostewicz, and it was decided
that Kostewicz should go immediately to see Patterson in the
hospital at Berea. Kostewicz thereupon flew to Lexington,
Kentucky, rented a car and drove to the hospital in Berea.'
He entered Patterson 's room, but finding a stranger there,
told Patterson that he would like to talk to him and would
be back after going down to the lobby for a cup of coffee.
Returning to the lobby, Kostewicz waited for the stranger to
leave. While he was waiting, Hennigin entered. They ex-
changed brief greetings, and Hennigin went to a telephone,
made a call and went up to Patterson's room. Five or ten
minutes later he came down and said to Kostewicz, "Pat
doesn't want to talk to you." Hennigin also told Kostewicz
that his trip to Berea was in vain because Patterson had
already given an affidavit to the National Labor Relations
Board. Kostewicz replied that this was blackmail. Thereupon
Kostewicz called Patterson on the telephone and said, "I
understand you don't want to talk to me." Patterson replied,
"That's about the size of it." Kostewicz thereupon left the
hospital.
The decision to discharge Patterson was made on February
18, 1971, at a conference of Respondent 's officials including
Randall and Kostewicz and after both Randall and Koste-
wicz had interviewed Mrs. Patterson. Kostewicz telephoned
Patterson and told him that he had been terminated effective
February 12, because apparently he was working for some-
body else as indicated on the accident report' and since he
was in Florida on sick leave.' Patterson replied that it was an
"illegal discharge."' Kostewicz testified that the reason for
fixing February 12, as the termination date was the fact that
"we had enough reasons to discharge him prior to the
12th-and we simply didn't want to be hung for the hospital
bills." However, the termination date was later changed to
February 18.
Subsequently, on March 22, 1971, Patterson met by prear-
rangement with Kostewicz at the Akron-Canton Airport.
According to Kostewicz's credited testimony, Patterson told
him that if the Respondent would forget about Patterson's
indebtedness to the Respondent and to the credit union, he
would change his testimony or "he would give his testimony
The foregoing, patently hearsay, was admitted not for the truth of the
matters stated, but as information received by the Respondent upon which
it may have taken certain action. The statements attributed to Hennigin
were confirmed by him in his testimony.
Kostewicz's trip was not out of solicitude for Patterson's condition.
Patterson had been in the hospital in Akron in November after an accident
while driving a vehicle on business for the Respondent. Yet Kostewicz did
not visit him on that occasion
Kostewicz testified that prior to going to the hospital to see Patterson,
he had called the Kentucky State Police and learned that Patterson had told
the police investigating the accident that he was employed as an investigator
for an attorney Patterson testified that he had told the State Police that he
was employed by the Respondent On cross-examination, he testified that
he did not remember telling the police that he was working as an investigator
for an attorney
Kostewicz admittedly did not give all of Respondent 's stated reasons for
the discharge He testified that his conversation with Patterson was inter-
rupted by the receipt of a long distance call.
Patterson's version of the telephone conversation is entirely different
He testified that Kostewicz told him he was fired because he would not talk
to or see him and because he had collaborated with the Union and had
signed an affidavit against the Respondent According to Patterson, he re-
plied that he thought it was illegal to terminate someone on workmen's
compensation Based upon by observation of Patterson 's demeanor while
testifying, including the fact that he was evasive, I do not credit Patterson's
version
THE M . O'NEIL COMPANY 25
in a certain way that would make the information that he
gave to the Union nothing more than a bunch of toilet pa-
per."'
B. Concluding Findings
1. The reason for Patterson 's discharge
The General Counsel contends that Patterson was dis-
charged because he gave a Board agent an affidavit regarding
Respondent 's surveillance activities. The Respondent con-
tends that Patterson was discharged for a number of reasons
all of which are set forth in the testimony of Vice President
Randall:
There were several things : First of all , the fact that it
was rumored that Mr. Patterson was working at other
employment while on sick leave; secondly , there were
many phone calls that had not been returned that we had
placed to him trying to find out where he was ; thirdly,
he had made a trip to Florida and returned by himself
while on sick leave.
There was also the fact that Mrs. Patterson had given
information that Mr. Patterson was in possession of cer-
tain classified , confidential information of the O'Neil
Company , concerning top management of O'Neil Com-
pany.
In fact , the accident reports show that Mr. Patterson
was working as an investigator for an attorney and the
fact that he would not talk to Mr. Kostewicz when he
went to Berea , Kentucky to talk to Patterson and lastly,
and very important, Patterson was a short term em-
ployee with a bad work record.
I am satisfied that Patterson was discharged because he
gave a statement to the Board. Witness the inexorable se-
quence of events : Around February 11 or 12, Kostewicz ad-
mittedly heard a rumor that Patterson was selling or giving
confidential information to the Union . Vice President Ran-
dall received similar information from his daughter shortly
after Patterson 's accident . On the morning of February 15,
Kostewicz met with Randall and the decision was made that
Kostewicz should go to see Patterson at Berea , Kentucky.
Kostewicz immediately flew to see Patterson . Kostewicz met
Hennigin in the lobby of the hospital , and Hennigin told him
that he probably knew that Patterson had given a statement
to the Board . Unable to discuss the matter with Patterson
because of the latter 's refusal to see him , Kostewicz returned
immediately to Akron . On February 18, Patterson was dis-
charged.
On the other hand , all but one of the reasons advanced by
the Respondent do not withstand critical analysis and are
strongly suggestive of afterthoughts . Thus , although Patter-
son's work record was poor , the fact remains that he last
worked at least 1 month before he was discharged. Mani-
festly , if Respondent were going to discharge him for his poor
work record , it would have done so long before it learned that
he had given a statement to the Board . Thus , for example, his
failure to clock in and out occurred in December 1970. Nor
does the stated reason that Patterson was working as an
investigator for an attorney appear to be a reason for the
discharge. In this respect , it is clear from the record that
' I do not credit Patterson 's version of the incident According to Patter-
son, he told Kostewicz that he was fed up with the way the Board and the
Union were handling the case and was fed up with the way the Respondent
was acting and was tired of the whole thing and wanted to drop it He
admitted discussing with Kostewicz how much he owed the Respondent at
that time He did not "recall" telling Kostewicz that he could make the
whole situation not mean anything by the way he would answer a couple
of questions.
when Kostewicz telephoned the State Highway Patrol, he
learned from the trooper who made the investigation of the
accident that Patterson had listed his employment as an in-
vestigator for an attorney . At this point , if this were the true
reason for Patterson 's discharge , Respondent could have, and
normally would have , discharged him by telephoning him at
the hospital . And, again , if this were the reason , would Koste-
wicz have taken the trouble to fly out to see Patterson at the
hospital? Patently , the trip was occasioned by a more com-
pelling reason than this.
Equally untenable is the contention that Patterson was
discharged because he went to Florida while on sick leave.
Implicit in this contention is the view that Patterson 's alleged
illness was a sham and he was not legitimately on sick leave
at the time . The record does not reveal when Respondent
learned that Patterson had been in Florida , but this is of no
consequence. Respondent knew on February 14, when it re-
ceived news of Patterson 's automobile accident that he was
then in Berea, Kentucky , a point more than 300 miles from
Akron . This, in itself, could lead the Respondent to believe
that Patterson 's claim for sick leave was based upon a sham.
And, if it so believed, it could have discharged Patterson
immediately by telephoning him at the hospital, as it eventu-
ally did . Was this alleged reason for the discharge a reason
which would impel Kostewicz to fly out to see Patterson?
Patently , Respondent 's conduct belies this as a reason for
Patterson's discharge.
Another reason assigned for Patterson 's discharge is the
fact that Kostewicz had made approximately 8 to 12 calls to
Patterson 's home early in February, and had not been able to
reach him ; moreover , Patterson had not returned any of these
calls. If this were the reason for Patterson 's discharge, it
could have been effectuated immediately by a letter to Patter-
son. Again , would Patterson 's failure to call back have occa-
sioned a flight by Kostewicz to see him in the hospital?
Lastly , we come to the remaining reason stated by Randall,
viz., that Mrs. Patterson had stated that Patterson was in
possession of classified , confidential information of the O'Neil
Company , concerning top management of O'Neil Company.
As put by Randall , the nature of the information is not
defined , but Randall 's statement must be considered in the
light of Kostewicz 's testimony that around February 11, he
had heard a rumor that Patterson was selling or giving confi-
dential information to the Union . Patently , this was the com-
pelling reason for Kostewicz 's flight to see Patterson at the
hospital . And, in any event , Respondent knew positively on
February 15 , that Patterson had given a statement to the
Board , when Kostewicz was so informed by Hennigin. As
noted above , Patterson 's discharge ensued immediately there-
after.
In view of all the foregoing , I find and conclude that Re-
spondent discharged Patterson because he had given an affi-
davit to a Board agent.
Although Section 8(a)(4) of the Act prohibits discnmina-
tion against any employee for filing a charge or giving tes-
timony under the Act, the Board has consistently interpreted
that section to apply to the giving of a statement to a Board
agent . See, e . g., Robert Scrivener d/b/a A A Electric Co., 177
NLRB No. 65 ; Manila Manufacturing Company, 171 NLRB
No. 151.
Respondent does not argue to the contrary , but contends
that Patterson should be denied protection because his ac-
tions have breached the confidence of his Employer and the
trust placed in him . None of the cases cited by the Respond-
ent to sustain its contention involved the giving of testimony
in a Board proceeding or the giving of a statement to a Board
agent . In this connection , it should be noted that supervisory
employees are in a position of at least as much trust and
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidence as Patterson was. Yet supervisors who give state-
ments to Board agents have been accorded the protection of
the Act. In N.L.R.B. v. Electro Motive Mfg. Co., 389 F. 2d
61 (C.A. 4), enforcing 158 NLRB 534, a supervisor was
discharged for giving a Board agent a signed statement which
contained an admission that certain employees had been un-
lawfully threatened by him. Holding that such a discharge
was a violation of Section 8(a)(1) of the Act, the Court said
at 62:
Respondent contends that the instant case is distinguish-
able, since, while a supervisor may be legally compelled
to testify at a formal Board proceeding, here a statement
was voluntarily given to a Board investigator. In terms
of the effective administration of the Act, however, we
see no distinction between the protection of managerial
employees who cooperate willingly with the Board and
of those who render assistance under legal compulsion.
The effect of the discharge, in either event, is to tend to
dry up legitimate sources of information to Board
agents, to impair the functioning of the machinery pro-
vided for the vindication of the employees' rights and,
probably, to restrain employees in the exercise of their
protected rights.
See, also, N.L.R.B. v. Southland Paint Company, 394 F. 2d
717, 720-721 (C.A. 5), enforcing 156 NLRB 22; N.L.R.B. v.
Dal-Tex Optical Co., Inc., 310 F. 2d 58, 62 (C.A. 5), enforcing
131 NLRB 715; Oil City Brass Works v. N.L.R.B., 357 F. 2d
466, 470-472 (C.A. 5), enforcing 147 NLRB 627; King Radio
Corporation, Inc., 166 NLRB 180, 184, enfd. 398 F.2d 14,
21-22 (C.A. 10).
Accordingly, I find and conclude that Patterson's dis-
charge by the Respondent because he gave an affidavit to a
Board agent violated Section 8 (a)(4) and (1) of the Act.10
2. As to whether Patterson was a confidential employee
Respondent contends that Patterson was a confidential em-
ployee and, as such, not protected by the Act. Although it
recognizes that there is Board case law to the contrary, the
Respondent argues that I should find that confidential em-
ployees are outside the statutory definition of "employee" in
Section 2(3) of the Act. Respondent relies upon N.L.R.B. v.
Wheeling Electric Co., 444 F. 2d 783, in which the Fourth
Circuit refused to enforce the Board's Decision and Order in
182 NLRB No. 33, where the Board held that confidential
employees were not to be denied the protection of the Act.
The argument is misaddressed to me. As a Trial Examiner of
the Board, it is my "duty to apply established Board prece-
dent which the Board or the Supreme Court has not re-
versed" (Insurance Agents' International Union, 119 NLRB
768, 773).
It should be noted, however, that it is unnecessary to reach
the issue whether confidential employees are entitled to the
protection of the Act, for I find and conclude that under the
facts of this case Patterson was not a confidential employee
as that term is defined by the Board. The Board has limited
"the term `confidential' so as to embrace only those em-
ployees who assist and act in a confidential capacity to per-
sons who formulate, determine, and effectuate management
policies in the field of labor relations" (The B. F Goodrich
Company, 115 NLRB 722, 724 , emphasis in text). See, also,
Pacific Maritime Association, 185 NLRB No. 114. While Pat-
terson's work entailed an element of confidentiality in the
sense that he reported thefts and violations of store rules and
'° It is unnecessary to decide whether Respondent thereby also violated
Section 8(a)(3), as charged in the complaint, as whatever remedy might be
prescribed would be no different regardless which section of the Act Re-
spondent violated
had access to files containing such reports, it is clear from the
record that such confidentiality did not relate to the formula-
tion and determination of management policies in the field of
labor relations. As the Board said in Ladish Co., 178 NLRB
No. 5, "an employee's access to personnel records and the
fact that the employee can bring information to the attention
of management which may ultimately lead to disciplinary
action by management is not enough to qualify an employee
as confidential." See, also, RCA Communications, Inc., 154
NLRB 34, 37.
Nor is Kostewicz, to whom Patterson reported, a person
who "formulates" and "determines" management policies in
the field of labor relations. The following statement of the
Board in Consolidated Papers, Inc., 179 NLRB No. 21, is
particularly applicable to Kostewicz's duties:
At most, his duties entail the reporting of factual data
and recommendations which may ultimately have an
impact upon employment conditions but do not in them-
selves constitute labor relations policy.
The term "policies in the field of labor relations" means
more than the formulation of rules and practices to prevent
thefts by employees and solicitation by outsiders. Thus in
Westinghouse Electric Corp., Small Motor Div., 138 NLRB
778, the Board held that industrial relations assistants were
not confidential employees. The Board said:
Although they must be intimately familiar with the em-
ployer's existing labor contracts, they are not in a posi-
tion to learn of matters relative to future policies, are not
consulted in that regard, and have no access to informa-
tion used by management in collective- bargaining
negotiations. (Id. at 781).
It is clear from the foregoing, and I find, that Patterson was
not a confidential employee.
V THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close, inti-
mate, 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
thereof.
VI THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(4) and (1)
of the Act, I shall recommend that it cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent discharged Patterson in
violation of Section 8(a)(4) and ( 1) of the Act, I would nor-
mally require the Respondent to remedy the unfair labor
practices by offering him reinstatement . See, e . g., N.L.R.B. v.
Electra Motive Mfg. Co., supra. However , the events in the
instant case did not end with the discharge of Patterson. As
previously noted , on March 22 , Patterson met with Koste-
wicz and offered to change his testimony or "give his tes-
timony in a certain way that would make the information that
he gave to the Union nothing more than a bunch of toilet
paper," if the Respondent would cancel his indebtedness to
the credit union and to the Respondent . A person who is
willing for a consideration to foil the processes of the Board
is not entitled to reinstatement . Moreover, while Patterson
was not a confidential employee as that term is defined by the
Board, the fact remains that , if reinstated, he would be in a
position to obtain confidential information which might be
embarrassing to the Respondent . This would put him in a
THE M . O'NEIL COMPANY
position of being able to demand a price for his silence. The
remedial provisions of the Act were not designed for that
purpose. See, e.g., Uniform Rental Service, 161 NLRB 187,
190; Offner Electronics, Inc., 134 NLRB 1064, 1076-77;
Thompson Cabinet Company, et al., 11 NLRB 1106, 1117.
Plainly, also, Patterson has by his conduct of March 22,
disqualified himself for backpay after that date. However, the
issue as to whether he should be awarded backpay from the
date of his discharge until his conduct rendered him unfit for
reinstatement is not easily resolved. The Board has on several
occasions awarded backpay from the date of the discharge
until the occurrence of conduct which disqualified the dis-
chargee for reinstatement. Nutone, Incorporated, 112 NLRB
1153, 1156, 1173; H. N. Thayer Company, 115 NLRB 1591,
1596; Redwing Carriers, Inc., 132 NLRB 982, 985. On other
occasions, the Board has denied the dischargee both rein-
statement and backpay where the misconduct occurred after
the discharge . Thompson Cabinet Company, et al., 11 NLRB
1106; Renfro Hosiery Mills, Inc., 122 NLRB 929, 930. I
believe that the purposes of the Act would be served best by
requiring the Respondent to reimburse Patterson for loss of
pay from the date of his discharge until March 22. The dis-
charge of an employee who has given an affidavit to the Board
strikes at the very root of the Board 's processes . Unless de-
terred, such conduct could render nugatory the Board's
power to remedy unfair labor practices. The remedy to be
prescribed is not , therefore, so much a matter of affording
Patterson the protection of the Act as it is to protect the
27
Board's processes from being foiled by the Respondent. In
this respect, the issuance of only a cease and desist order
against the Respondent may not be completely effective to
prevent future violations of this nature. Thus, Member Fan-
ning has pointed out that "employers such as this Respondent
may be deterred a bit more effectively from committing unfair
labor practices by a backpay order from October 4 [the date
of the discharge] to December 6 [the date of the misconduct]"
(Dissent in Renfro Hosiery Mills, Inc., supra, at p. 933). The
backpay thus provided for shall be computed in the custom-
ary manner . F. W. Woolworth Company, 90 NLRB 289; Isis
Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily discharging Charles Patterson be-
cause he gave an affidavit to a Board agent, the Respondent
has engaged in an unfair labor practice within the meaning
of Section 8(a)(4) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]