CELEBREZZE, Circuit Judge.
The National Labor Relations Board seeks enforcement of its order that Retail Store Employees Union Local 876 reinstate a former employee, Anna Pennacchini, with back pay. The Board found in an unfair labor practice proceeding that the union qua employer had violated § 8(a)(4) of the National Labor Relations Act ("the Act") by firing Pennacchini in retaliation for her refusal to testify voluntarily for the union in an earlier unfair labor practice proceeding.
The principal factual dispute before the Board was whether Anna Pennacchini's discharge had been motivated, at least in part, by her refusal to testify for her employer in an unfair labor practice proceeding involving a former fellow employee, Barbara Frazier. Frazier was discharged by the union in October 1972, and immediately initiated proceedings against the union, alleging that her discharge was violative of the Act. According to Pennacchini,
Pennacchini was not called as a witness by either side at the Frazier hearing, although the union could have subpoenaed her testimony under § 11(1) of the Act. Approximately one month later, Brown fired Pennacchini in a termination letter that accused her of "extraordinary disloyalty" and of "conveniently" forgetting certain facts that tended to incriminate Frazier.
Shortly after receiving the termination letter, Pennacchini filed an unfair labor practice charge against the union. The Administrative Law Judge concluded that Pennacchini "was an essentially truthful witness." 219 NLRB at 1194. He also concluded that the union had terminated Pennacchini "because she refused to appear voluntarily as a witness in the unfair labor practice proceeding involving a former fellow employee, on the ground that she had no direct knowledge of the matters about which she was to be questioned." Id. The Board adopted the findings and conclusions of the Administrative Law Judge, noting that it was "abundantly clear that Pennacchini's discharge was motivated, at least in part, by her refusal to cooperate with the Respondent, . . . when, in the presence of Brown and the Respondent's counsel, she disclaimed firsthand knowledge of Frazier's shortcomings." 219 NLRB at 1188.
We have carefully reviewed the record, and conclude that the Board's findings of fact are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). According to Pennacchini's credited testimony, she was asked by the union if she would testify in support of certain allegations against Frazier
We recognize that Pennacchini's discharge may have been motivated by factors other than her refusal to testify: indeed, the termination letter suggests several possible explanations.
As we read the Board's findings, Pennacchini was fired because she would not testify in support of the union's position at the Frazier unfair labor practice proceeding. The principal legal issue in this case is whether such a discharge constitutes a violation of § 8(a)(4) of the Act. We believe that it does.
Although the specific language of § 8(a)(4) refers only to an employee who "has filed charges or given testimony," the Supreme Court has read the statute to protect other employees as well. In NLRB v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972), the Court held that § 8(a)(4) precludes the discharge of an employee for giving written sworn statements to a Board field examiner. The employee had not "filed charges or given testimony," but the Court felt that Congress had intended to protect employee participation in the investigatory, as well as the hearing stages of Board proceedings.
This interpretation was consistent with the purpose of the section, which was to ensure that all persons with information about unfair labor practices "`be completely free from coercion against reporting them to the Board.'" Id. at 121, 92 S.Ct. at 801, quoting Nash v. Florida Industrial Comm'n, 389 U.S. 235, 238, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967). Such "complete freedom" is necessary, said the Court, "`to prevent the Board's channels of information from being dried up by employer intimidation of prospective complainants and witnesses.'" 405 U.S. at 122, 92 S.Ct. at 801, quoting John Hancock Mut. Life Ins. Co. v. NLRB, 89 U.S.App.D.C. 261, 263, 191 F.2d 483, 485 (1951).
Similar considerations militate in favor of extending statutory protection to the activity involved in this case. Although Pennacchini was not prevented from reporting information to the Board, the coercion applied against her had a direct bearing on a pending Board proceeding. Had she acquiesced in her employer's request that she testify against Frazier, she could very well have perjured herself before the Board. The result would have been more serious than a closing of "channels of information" to the Board. It would have been the outright misleading of the Board. Coercing employees to give untrue testimony just as surely undermines the integrity of Board proceedings as does coercing employees to give no testimony at all.
We think that the "integrity of the Board process in its entirety" would be seriously undercut if employers were allowed to freely discharge employees who because of lack of knowledge refuse to testify in support of the employer position at an unfair labor practice hearing.
The legislative history of § 8(a)(4) supports application of the statute in this case. In the Senate debates on the Wagner Act, of which § 8(a)(4) was a part, Senator Wagner gave the following example of the kind of coercion that § 8(a)(4) was designed to alleviate:
Coercing employees to sign petitions with which they do not agree is closely analogous to coercing employees to give testimony they believe to be false. The intent of the Act's authors was that workers should not feel compelled by the threat of employer retaliation to misrepresent their own knowledge or beliefs on matters relevant to the Act.
Respondent argues that protecting a refusal to testify will actually dry up channels of information to the Board by encouraging the withholding of evidence. What we are protecting here, however, is not simply a refusal to testify: if that were the only issue, then the union would have subpoenaed Pennacchini, as the Act clearly permits it to do. See 29 U.S.C. § 161(1). Rather, we are protecting employees from pressure to deliver false or misleading information to the Board. Section 8(a)(4) by itself neither encourages nor discourages testimony: it simply leaves employees free to
Respondent has maintained throughout the proceedings that Pennacchini was a "managerial" employee, not subject to the protections of the Act. NLRB v. Bell Aerospace Co., 416 U.S. 267, 289, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). Pennacchini's job involved preparation of the union newspaper. The union contends that, in that capacity, she exercised such independence of judgment as to identify her with management. The Board expressly adopted the finding of the Administrative Law Judge that Pennacchini was not a managerial employee. 219 NLRB at 1188 n. 3.
Our standard of review on this issue is whether the Board's decision has "warrant in the record" and a "reasonable basis in law." NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). See also K. C. Davis, Administrative Law of the Seventies § 30.00 at 691 (1976). We find that standard to be fully met in this case. "Managerial" employees are those "who formulate, determine, and effectuate an employer's policies." Eastern Camera & Photo Corp., 140 NLRB 569, 571 (1963), cited with approval in NLRB v. Bell Aerospace Co., 416 U.S. 267, 290 n. 19, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). The determination of an employee's managerial status "depends upon the extent of his discretion, although even the authority to exercise considerable discretion does not render an employee managerial where his decision must conform to the employer's established policy." 140 NLRB at 571. According to Pennacchini's credited testimony, she had nothing to do with the policies concerning what should be printed in the union newspaper and never decided what should be included in an article. She would always submit items suggested for publication to the union's chief executive officer for approval, and rarely (if ever) expressed an opinion to him on the substance of the articles she was directed to publish. Her other duties were to proofread collective bargaining agreements, prepare flyers and handbills, construct photographic layouts, and occasionally run the duplicating machine. She did not attend any strategy meetings of union officials.
This evidence provided a sufficient basis upon which the Board could reasonably conclude that Pennacchini did not "formulate, determine, and effectuate" her employer's policies. There is "warrant in the record" to support the premise that her job-related decisions had to "conform to the employer's established policy," and were not the result of her independent judgment. In this regard, this case is distinguishable from Wichita Eagle & Publishing Co., Inc. v. NLRB, 480 F.2d 52 (10th Cir. 1973), cert. den. 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 758 (1974) where the Court found an editorial writer of a daily newspaper to be a "managerial" employee. The writer in Wichita Eagle "could, and did, propose topics for editorials, [and] propound her own viewpoint in an effort to influence editorial policy on various subjects." Id. at 55. Here, there was ample testimony — which the Board found credible
Respondent also argues that reinstatement is an inappropriate remedy because "there is no position to which Pennacchini can be reinstated."
The situation here is distinguishable from that in NLRB v. Schnell Tool & Die Corp., 359 F.2d 39 (6th Cir. 1966), where this Court refused to enforce a Board reinstatement order against employers who had sold their businesses subsequent to violating the Act. Issuance of an enforcement decree there would have been a "vain act" because any reinstatement order would have been ineffective against the successor employers, whose liability under the Act had not yet been determined by the Board. Here, the employer against whom enforcement is sought is the same employer found in violation of the Act.
Likewise distinguishable is Trico Products Corp. v. NLRB, 489 F.2d 347 (2d Cir. 1974), where the Second Circuit refused to order reinstatement of employees who would have been laid off in any event for economic reasons. Respondent here admits that the Union still publishes a newspaper, albeit through an independent contractor. The fact that an employer may have hired an independent contractor to do the work of a wrongfully discharged employee does not preclude the reinstatement remedy. Fibreboard Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). See also NLRB v. Jackson Farmers, Inc., 457 F.2d 516, 518 (10th Cir. 1972).
Respondent further urges that reinstatement would be improper because of a "basic antagonism" between Pennacchini and the union president (Brown).
These cases involved acts of employee antagonism far more flagrant than that alleged here. Pennacchini did not threaten union officials and in no way disrupted her employer's work. Of course, Pennacchini's prior opposition to Brown's re-election is likely to cause some friction if she resumes her former position. We are, however, bound to give "special respect" to the Board's choice of remedy, based on its judgment as to how effectively to promote the goals of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). As noted by the First Circuit in a similar case, the Board "may have believed that a less complete remedy would leave doubt as to whether the Act fully protected the rights of employees." Trustees of Boston Univ. v. NLRB, 548 F.2d 391, 393-94 (1st Cir. 1977). Under these facts, we cannot say that the reinstatement order constituted an abuse of discretion.
We have considered all of Respondent's other arguments and find them to be without merit.
We find that there is substantial evidence to support the Board's findings, accordingly enforcement is GRANTED.
Respondent suggests that a finding that Pennacchini exercised "considerable independence of judgment respecting the specific content of the editorials she wrote" compels a finding that she was managerial employee. As we interpret the Administrative Law Judge's decision, and the testimony he credited, Pennacchini's independence of judgment went only to the form, and not the substance of the editorials.