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Swinick v. National Labor Relations Board

December 30, 1975

FRANCES SWINICK, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT



PETITION FOR REVIEW OF ORDER OF NATIONAL LABOR RELATIONS BOARD (Case No. 22-CA-5631).

Van Dusen, Maris and Hunter, Circuit Judges.

Author: Hunter

HUNTER, Circuit Judge:

Frances Swinick petitions this court under section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f) (1970),*fn1 to review and set aside an order of the National Labor Relations Board (the "Board") dismissing in its entirety an unfair labor practice complaint against W. T. Grant Company (the "Company"). W. T. Grant Co. v. Swinick, 214 NLRB No. 96 (Nov. 6, 1974). Petitioner also moves this court for an order pursuant to section 10(e) of the Act, 29 U.S.C. § 160(e) (1970),*fn2 remanding the case to the Board for the purpose of taking additional evidence.

On November 20, 1973, the General Counsel of the Board, following the filing of charges by petitioner, issued an unfair labor practice complaint against the Company. The complaint alleged that the Company had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3) (1970),*fn3 by coercively interrogating employees concerning union activities, by threatening employees with economic reprisals if they became members of or gave assistance to a labor organization, and by discharging and refusing to reinstate employee Frances Swinick because of her efforts to organize the Company's employees. After a hearing on these charges, the administrative law judge issued an opinion and order in which he concluded that the Company had engaged in unfair labor practices by dismissing petitioner because of her union organizing activities. He ordered the Company to reinstate petitioner and provide her with back pay. W. T. Grant Co. v. Swinick, Case No. 22-CA-5631 (Feb. 25, 1974). Exceptions were taken from the administrative law judge's order, and on November 6, 1974, the Board reversed the conclusions of the administrative law judge and dismissed the complaint against the Company in its entirety. W. T. Grant Co. v. Swinick, 214 NLRB No. 96 (Nov. 6, 1974).

We vacate the order of the Board and, pursuant to section 10(e), remand the case to the Board for the purpose of taking additional evidence. Because of our conclusion in this regard, we do not reach the question whether the findings of the Board are supported by substantial evidence on the record considered as a whole. See 29 U.S.C. § 160(f) (1970).

I

Because we must determine the materiality of the evidence sought to be adduced on remand, see p. 8 infra, it is necessary to review the evidence and testimony presented at the hearing.

At the hearing before the administrative law judge, petitioner testified that many fellow employees of the Company's Somerset, New Jersey store were dissatisfied with their working conditions and that they had approached petitioner and had asked her to investigate the possibility of organizing a union in the store. She stated that on September 21, 1973, she met with union representatives of District 65, Distributive Workers of America and that on the same day she approached employees at the Somerset store to determine how many employees would be interested in attending a meeting to discuss the union. According to petitioner, approximately 50 employees signed her address book as an expression of interest in the union.

The focus of much of the testimony at the hearing concerned three conversations that occurred on September 22, the day on which petitioner was discharged, between various of the Company's management personnel and employees. The first conversation involved Store Manager Anthony Renna, Operations Manager James Downs and employees Mary Vail and William Molnar (the "Renna Conversation"). Petitioner testified that while away from her regular station in the toy shop, she overheard Renna ask the employees what petitioner was doing and heard the word "union" mentioned. Vail later testified that she had spoken to Renna and Downs about petitioner's union organizing activities but that she could not recall whether the word "union" was mentioned during the Renna Conversation.

The second conversation, occurring later that same day, involved Department Manager Ray Patenaude and employees Vail, Molnar, Doug Tompkins and Tom Iacorino (the "Patenaude Conversation"). Petitioner stated that Patenaude told the employees "not to join the union," and that "things would be bad or tough for them if they joined the union." Vail and Molnar testified that Patenaude related to the group his prior experiences with a different union. Patenaude claimed that he was merely expressing his opinion about unions in response to an employee question.

The third conversation took place at the customer service desk and involved Department Manager Kenneth Bergen, employee Ann Piotrowski and customer Marlene Kimbell (the "Bergen Conversation"). According to petitioner's testimony, employee Piotrowski informed Bergen that petitioner, who was standing five feet from Bergen, was organizing a union at the store. Bergen then stated that he was aware of petitioner's union activities and that she was going to be fired. In his testimony, Bergen denied the statements attributed to him.

Shortly after the conversation, at about 5:00 or 5:30 p.m. that same day, Bergen apprised petitioner that he was reducing her work schedule from 35 to 25 hours per week. Petitioner testified that she then asked him for her new schedule. Bergen testified that petitioner claimed that she could not meet the new schedule because of transportation difficulties. On rebuttal, petitioner denied that she had made this statement and asserted that she lived within walking distance of work and that she had never missed work because of transportation difficulties.

At 5:45 p.m., petitioner was summoned to the personnel office and informed by Downs and Bergen that she was being discharged. Petitioner testified that she asked them if she was being fired because of her union activities and that Downs stated that this was the first time he had heard about her involvement with union organizing activities. In their testimony, Downs, Bergen and Renna asserted that petitioner's hours were reduced because of the need for payroll reduction*fn4 and that she was discharged because they believed she could not meet the new schedule due to transportation difficulties. They testified that they had not discussed with ...


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