The M. O'Neil Co.

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.]