A.L.S.A.C.

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1532 (N.L.R.B. 1986)

1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Lebanese Syrian Associated Charities, Inc.
d/b/a A.L.S.A.C. and Carol J. Collinsworth.
Case 26-CA-10368
10 January 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 31 December 1984 Administrative Law
Judge Nancy M. Sherman issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , American
Lebanese Syrian Associated Charities , Inc. d/b/a
A.L.S.A.C., Memphis , Tennessee , its officers,
agents , successors , and assigns , shall take the action
set forth -in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless,the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
8 In agreeing with the judge that the Respondent unlawfully dis-
charged employees Carney and Collinsworth because they engaged in
protected concerted activity, we additionally find that the Respondent's
claim of confidentiality for the salary list at issue here is seriously under-
cut by the fact that the document was left at a copier machine which was
available for use by employees other than those who would ordinarily
have had access to the list We, however, disavow any suggestion by the
judge that the Respondent may not have a legitimate and substantial in-
terest in keeping a list of this type confidential
James Fuller, Esq., for the General Counsel.
Michael C. Speros, Esq., and Richard M. Kobdish, Jr.,
Esq., of Memphis, Tennessee, for the Respondent.'
Alan Chambers, Esq., of Memphis, Tennessee, for Carol
J. Collinsworth and Jacquelyn S. Carney.
DECISION
STATEMENT OF THE CASE
J. Collinsworth on August 30, 1983, and amended on
March 16, 1984, and a complaint issued on March 16,
1984, against Respondent American Lebanese Syrian As-
sociated Charities, Inc. d/b/a A.L.S.A.C. The issues pre-
sented are (1) whether the Board has and should assert
jurisdiction over Respondent's operations; and (2) if so,
whether Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act by (a) maintaining a rule
which forbids discussion of salaries between employees,
and (b) discharging Carol J. Collinsworth and Jacquelyn
S. Carney.
On the basis of the entire record, including the de-
meanor of the witnesses, and after due consideration of
the brief filed by Respondent and the brief filed by the
General Counsel and relied on by counsel for Collins-
worth and Carney, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a nonprofit, nonsectarian Illinois corpo-
ration. Respondent's national headquarters are located in
Memphis, Tennessee. In addition, Respondent has eight
regional offices located in Washington, D.C.; Boston,
Massachusetts; Atlanta, Georgia; New Albany, Indiana;
Memphis, Tennessee; Chicago, Illinois; Austin, Texas;
and San Fransico, California.' Also, Respondent has spe-
cialty offices in New York, New York, and in Los Ange-
les, California. These 10 offices coordinate activities in
all areas of the country, including Alaska and, Hawaii,
and the United States island territories.
Respondent's sole purpose is to serve as a fundraising
arm for St. Jude Children's Research Hospital (St. Jude
Hospital) in Memphis, Tennessee. During the fiscal year
ending June 30, 1983, St. Jude Hospital received more
than $42 million in support. St. Jude Hospital's "program
services" expenses for that year exceeded $30 million.
Since 1976, Respondent, which is St. Jude Hospital's
principal fundraising arm, has raised more money each
year than was needed for St. Jude Hospital's operating
expenses the following year. During either the calendar
or (more likely) the fiscal year during which the May
1984 hearing was conducted, Respondent was attempting
to raise $53 million for St. Jude Hospital. Respondent has
obtained contributions, not only from donors throughout
the United States, but also from donors in foreign coun-
tries. The complaint alleges, and the answer admits, that
Respondent's Memphis, Tennessee facility, where „the
two claimants were employed, annually received contri-
butions in excess of $1 million from various points in the
United States other than Tennessee. The complaint fur-
ther alleges, and the answer admits, that Respondent's
Memphis, Tennessee facility annually receives products,
goods, and materials valued in excess of $50,000 directly
from points outside Tennessee. At the time of the May
1984 hearing before me, Respondent employed a total of
125 persons. During the fiscal year ending on June 30,
1983, Respondent, St. Jude Hospital, and St. Jude Hospi-
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Memphis, Tennessee, on
May 29 and 30, 1984, pursuant to a charge filed by Carol
' A regional office in Denver, Colorado, was closed in July 1983
during the course of the alleged unfair labor practices herein
277 NLRB No. 189
A L.S.A.C.
tal Foundation, Inc. (another fundraising arm of St. Jude
Hospital) spent more than $8 million for fundraising ac-
tivities, including salaries and benefits exceeding
$915,000.
Respondent's operations in the District of Columbia,
standing alone, show that Respondent is engaged in com-
merce within the meaning of the Act. W. W. Chambers
Co. v. NLRB, 279 F.2d 817 (D.C. Cir. 1960), cert. denied
364 U.S. 880 (1960), enfg. 125 NLRB 633, 636 (1959);
Westchester Corp., 124 NLRB 194, 196 (1959). The same
conclusion is called for even disregarding such District
of Columbia operations. NLRB v. St. Louis Christian
Home, 663 F.2d 60, 62-63 (8th Cir. 1981); Denver Post of
the National Society of the Volunteers of America v.
NLRB, 732 F.2d 769 (10th Cir. 1984); NLRB v. Southeast
Assn. for Retarded Citizens, 666 F.2d 428 (9th Cir. 1982);
NLRB v. Children's Baptist Home of Southern California,
576 F.2d 256 (9th Cir. 1978); Damon House, 270 NLRB
143 (1984); Volunteers of America-Minnesota-Bar None
Boys Ranch, 269 NLRB 1049 (1984).
Moreover, in my judgment, Respondent's operations
meet the Board's existing standards for assertion of juris-
diction. Salvation Army, 225 NLRB 406 (1976); Howard
University, 224 NLRB 385, 386 fn. 9 (1976); Westchester
Corp., supra; Damon House, supra; Volunteers of America,
supra; Michigan Eye Bank, 265 NLRB 1377 (1982); Sie-
mons Mailing Service, 122 NLRB 81, 84-85 (1958). In
view of Respondent's District of Columbia operations,
Respondent's contention that the Board should not assert
jurisdiction herein is likely barred by Section 14(c) of the
Act, which requires the Board to assert jurisdiction over
any labor dispute over which it would assert jurisdiction
under the standards prevailing on August 1, 1959. Na-
tional Truck Rental Co., 114 NLRB 106, 108 (1955); W.
W. Chambers Co., supra, 984 (1959), citing M. S. Ginn &
Co., 114 NLRB 112 (1955), and Westchester Corp., supra;
2 Leg. Hist. 1153-1154 (LMRDA 1959), cited in McCul-
loch Y. Sociedad Nacional de Marineros, 372 U.S. 10, 20
fn. 10 (1963); cf. Howard University, 211 NLRB 247
(1974), 224 NLRB 385, especially 386, fn. 9 (1976). In
any event, any request for modification of the Board's ju-
risdiction standards to exclude Respondent's operations is
directed to the Board's power and not mine.
Moreover, because of St. Jude Hospital's dependence
on Respondent's operations, refusal to assert jurisdiction
here would not necessarily be called for by a return (as
proposed by Respondent) to Ming Quong Children's
Center, 210 NLRB 899 (1974).2 St. Jude Hospital is a
nonsectarian, nonprofit research hospital for children
with catastrophic diseases. The Hospital is engaged in
commerce within the meaning of the Act. Thus, as pre-
viously noted, St. Jude Hospital annually receives mil-
lions of dollars collected by Respondent, through its of-
fices in various States, from donors throughout the
United States and foreign countries. Moreover, during
each of the fiscal years ending on June 30, 1983, and
June 30 1982, St. Jude Hospital received more than $7
2 Relied on in Chairman Dotson's dissenting opinions in Damon House,
supra; in Dorchester Day Care Center, 271 NLRB 1245 (1984), in Volun-
teers of America, Los Angeles, 272 NLRB 173 (1984), and in the cases
cited in that dissent Ming Quong was overruled in Boys & Girls Aid Socie-
ty of San Diego, 224 NLRB 1614 (1976)
1533
million from agencies of the Federal Government. Simi-
larly, in previous years, St. Jude Hospital received mil-
lions of dollars in grants from the Federal Government
and the Federal agencies. Further, St. Jude Hospital pa-
tients, staff, and students come from throughout the
world. As to even nonprofit health care institutions sub-
ject to Congressional power under the Constitution's
commerce power, the 1974 amendments to the Act and
their legislative history show a Congressional intent to
extend the Act and its underlying policies to all health
care institutions whose activities have a substantial
impact on commerce, in order to avoid industrial strife
which interferes with the full flow of commerce. East
Oakland Community Health Alliance, 218 NLRB 1270
(1975); St. Elizabeth` Community Hospital v. NLRB, 708
F.2d 1436, 1443 (9th Cir. 1983). The Board has conclud-
ed that hospitals whose gross revenues exceed $250,000
annually have a sufficiently substantial impact on com-
merce, and present a sufficient risk of interference with
the full flow of commerce in the event of industrial
strife, to warrant assertion of jurisdiction over their oper-
ations. East Oakland Community Health, supra, 218
NLRB at 1271. Accordingly, the Board would plainly
assert jurisdiction over St. Jude Hospital, whose reve-
nues for the fiscal year ending June 30, 1983, exceeded
$60 million. As previously noted,-contributions procured
by Respondent more than covered St. Jude Hospital's
operating costs during this period. Accordingly, and par-
ticularly because St. Jude Hospital never turns away pa-
tients for inability to pay ,3 a suspension of Respondent's
operations because of a labor dispute would likely have
on the Hospital's operations an adverse impact as serious
as the impact of a labor dispute among the Hospital's
own employees, a dispute over which the Board would
assert jurisdiction in order to assure the full flow of com-
merce.4 No such situation was presented in Ming Quong.
Cf. St. Aloysius Home, 224 NLRB 1344 (1976), where the
Board was divided as to the health care amendments'
impact on the Board's jurisdictional policies regarding
other nonprofit operations.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. TheAllegedly Unlawful Rule
Respondent has a practice of issuing a copy of its em-
ployee handbook to each employee at the time of his
hire. The employee is required to sign and date a state-
ment, which Respondent keeps on file, that he has re-
ceived and read the handbook. Respondent issued a re-
vised copy of this handbook in November 1979. Inferen-
tially about June 1981, Respondent inserted in the hand-
3 St Jude Hospital accepts insurance payments on policies carried by
patients' parents However, there is no direct cost to a child 's family for
any part of the child's treatment at St Jude Hospital. All drugs and
medication are furnished free , including those to be administered after the
patient has left the hospital At least on occasion, St. Jude Hospital pays
for the airfare and lodging of the patient 's family
4 As to this effect on St Jude Hospital of a labor dispute at Respond-
ent's operation , it is immaterial that Respondent 's employees and St. Jude
Hospital's employees are separately supervised, and that Respondent's
employees are not union represented whereas some of St Jude Hospital's
employees are union represented
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
book, immediately after a list of the paid holidays ob-
served by Respondent, a memorandum from Respond-
ent's executive director stating that somewhat different
holidays would be observed after January 1, 1982. Subse-
quent to the insertion of this memorandum, Respondent
gave out otherwise unchanged copies of this handbook
until May 1, 1984, about 6 weeks after the complaint and
about a month before the hearing in this case. Through-
out this entire period, the handbook contained the fol-
lowing provision:
DISCUSSION OF SALARIES
The discussion of salaries between employees is
expressly prohibited.
Failure to observe the policy prohibiting discus-
sion of salaries between employees can compromise
your own salary bargaining position. It may be con-
sidered during your periodic performance evalua-
tion, and may result in disciplinary action being
taken.
Field staff having. supervisory control over other
employees will insure that their administrative pro-
cedures do not reveal the pay scale or salary levels
of other employees.
Respondent conceded at the outset of the hearing that
the rule as it existed with respect to discussion of salaries
was an unlawful rule. See Jeannette Corp., 217 NLRB
653, 653-654, 656 (1975), enfd. 532 F.2d 916 (3d Cir.
1976); Blue Cross-Blue Shield of Alabama, 225 NLRB
1217, 1218-1220 (1976). I disagree with the contention in
Respondent's brief that under all the circumstances, it
would be inappropriate for this rule to be found a viola-
tion of Section 8(a)(1).
Respondent heavily relies on its action in circulating
about March 1982 an article from "White Collar Man-
agement" which refers (although largely devoted to the
statutory protection afforded group action not involving
unions) to the unlawfulness of a rule which forbids em-
ployees to discuss their salaries with each other and re-
quires employees to keep salaries confidential from co-
workers.5 However, although the handbook was given
to all 125 persons in Respondent's 11 offices between
California and Massachusetts and between Texas and Illi-
nois, the "day file" was routed only to Respondent's 12
to 14 department heads, directors, and coordinators in
Respondent's 50-person Memphis headquarters; and was
removed from the "day file" after about a week. More-
over, after routing this "day file" in March or April
1982, Respondent continued, until the May 1984 comple-
tion of the revised handbook, to give newly hired em-
ployees handbooks which contained the foregoing rule,
without any indication that the rule was no longer in
effect. Furthermore, although Director of Development
William J. Kirwen had admittedly been aware since mid-
1980 that this rule was unlawful, and Associate Director
of Development David McKee had admittedly known
this since 1979, until May 1984 Respondent never took
5 Although this issue bears a 1980 copyright date, Director of Devel-
opment William Kirwen testified that he first received it in late 1982 or
early 1983
any steps (laying to one side the circulation of the "day
file") to alter the 1979 handbook in this respect, even
though (as previously noted), the "holidays" portion of
the handbook was revised after Kirwen and McKee
became aware that the rule against salaries discussion
was unlawful.
Although Kirwen testified on May 30, 1984, that as to
incumbent employees, Respondent had retrieved the
1979 manual and issued the May 1, 1984 manual, data
entry clerk Martha Washington credibly testified that she
had not seen it until the General Counsel showed it to
her about May 16, 1984.6 She further credibly testified
that when she started working for Respondent in late
1979, her fellow employees told her that the employee
handbook prohibited discussion of salaries. Also, she cre-
dibly testified that she had had " discussion of salaries in
general" with other employees about salaries, but not
"specific amounts," during the first 2 years of her em-
ployment with Respondent; that so far as she knew, man-
agement was unaware of these discussions; that she had
not thereafter had even general discussions about sala-
ries; and that no supervisor had ever told her she could
discuss salaries . Marilyn Elledge , a rank-and-file employ-
ee between the beginning of 1981 and her promotion to a
management job in February 1983, credibly testified to
the belief that the rule against discussion of salaries had
been in effect until the issuance of the May 1, 1984 hand-
book. She further credibly testified that she had never
been told by any company official that this rule was not
applicable; and, although she was on the "day file" rout-
ing list, credibly testified that she did not recall having
seen the "White Collar Management" article. She also,
credibly testified that this rule had caused her to refrain
from discussing salaries with other employees, except for
Collinsworth (see infra part II,B,I,c) and, perhaps,
Carney. Although Associate Director of Development
McKee testified that he had known since 1979 or 1980
that the discussion-of-salaries rule in the manual was im-
proper or unlawful, employee Dianna Stewart, his secre-
tary between June 1982 and at least March 1983, credi-
bly testified that no supervisor ever told her that the rule
against discussion of salaries was no longer in effect. a
Further, she credibly testified that she had never seen
the "White Collar Management" article." Denise Craft,
who worked for Respondent as a secretary between Oc-
tober 1982 and March 1984, credibly testified to the
belief that management did not want employees to reveal
their salaries to other employees. Furthermore, there is
no evidence that Respondent ever advised the employees
that the salary-discussion rule in the 19-page 1979 hand-
book was not included in the 31-page 1984 handbook.
In view of the foregoing, I conclude that an unfair
labor practice finding and cease-and-desist order are
6 Although Kirwen testified that each employee was required to sign a
statement that he had received and read the new manual, Respondent
produced no such statement signed by Washington
I For demeanor reasons, I do not credit McKee's testimony that in
January 1983 he told her, although without mentioning the handbook,
that it was all right to discuss salaries. See infra part II,B,I,d.
9 Although the cold transcript of her testimony suggests that she be-
lieved the handbook rule applicable to discussion of management' s sala-
ries only, her demeanor persuaded me that she was not sure about this
A.L.S.A C
called for notwithstanding Kirwen's,and McKee's testi-
mony, corroborated by the prehearing affidavit of Col-
linsworth (an employee in Respondent's national head-
quarters in Memphis), that employees discussed salaries
in the known presence of management, and that manage-
ment knew such discussions (including discussion of spe-
cific salaries) were taking place but did not reprove the
participants.9 See Rosewood Mfg. Co., 269 NLRB 782,
785 (1984); Quartrol Corp., 226 NLRB 120, 120 fn. 1,
122-123 (1983); Lenox Hill Hospital, 225 NLRB 1237,
1243 (1976). See generally Passavant Memorial Area Hos-
pital, 237 NLRB 138, 138-139 (1978).10
B. The Allegedly Unlawful Discharges
1. Facts
a. The "salary increases" list
Respondent does not recognize any union as the repre-
sentative of any of its employees. Respondent has a prac-
tice of giving to each person on its payroll an annual
salary review on the anniverary of his starting to work
in his present position. The review form filled out by the
employee's supervisor has a place for the employee's
comments. Kirwen testified that an employee who is dis-
satisfied with his evaluation has the right to protest in
writing through a supervisor; and that Respondent per-
mits bargaining on an individual basis for pay raises.
McKee testified that an employee is permitted to make a
written submission before the decision is made to grant
an increase or to fix the percentage of increase ; that an
employee in the Memphis office can make an oral sub-
mission to him or Kirwen (but McKee did not testify
about how often the employees did this); and that em-
ployees can and frequently do attach documents to their
review forms. Collinsworth, who received three such
evaluations, testified that for the most part, an employee
is reviewed and told what his increase is going to be,
"and that's the end of it"; but that the employees have
the option of yearly one-on-one bargaining to improve
their salaries. Respondent also has apractice of budgeting
for each fiscal year, which begins on July 1, a particular
sum from which all salary increases are to be taken.
At the end of February 1982, Personnel Director
Betty Bodry prepared, and her secretary Bobbie Taylor
typed, a document which set forth the names of all per-
sons on Respondent's payroll who had received a salary
9 Collinsworth testified that when she told Kirwen in November 1982
that employees were discussing salaries, he did not ask her for their
names but "did seem,nervous about it." There is no evidence that he told
her that management had no objection to this activity -
i° As to what action (if any) should be taken in connection with the
salary-discussion rule, I attach little significance to the testimony of em-
ployee Kini Kedigh, a writer information specialist who worked through
March 1984, that when hiring her in October 1982, Director of Commu-
nications Paul Parham asked her not to disclose her salary to other em-
ployees. Parham implied that he was basing his request on the fact that
he had to get permission from his supervisors to pay her as much as she
had insisted on and did not tell her that she would be disciplined if she
failed to honor his request This interview with Parham aside , no supervi-
sor ever told Kedigh that she could or could not discuss salaries with
other employees . Kedigh never discussed specific salaries with any of the
other employees , although she did join in discussions to the effect that
"you never make enough money "
1535
review and an increase between June 29, 1981, and Feb-
ruary 26 , 1982 . 11 Set forth after each name was the date
of the increase ; that person 's yearly salary before and
after the increase; the total amount and percentage of the
increase; the total amount and percentage attributable to
"merit" ; and the total amount and percentage attributable
to a change in that person 's job . Also, the document set
forth the amount budgeted for increases during the fiscal
year and noted the amount still available therefor under
the budget.
The document consists of five legal-size pages. At the
top of each page are typed in capital letters and under-
lined the words "Salary Increases" and the word "Confi-
dential ." Other than Bodry and Taylor, the only people
who were supposed to have access to this document
were National Executive Director Baddia Rashid, Con-
troller Dennis Morlok , Kirwen , and McKee . The docu-
ment is handed to these four executives in a sealed enve-
lope marked confidential.
b. The claimants ' acquisition of the "salary increases"
list
While on Respondent's payroll, Carney was secretary
to the director of special projects. After her annual
salary review , she had received a merit wage increase on
February 22, 1982. About March 1, 1982, when she went
to the office copier machine to copy some material in
connection with her job duties, she found a copy of the
previously described "salary increases" list, lying face
up, on a copy-machine feed grill where a multipage
original is to be placed if the operator wants to make
several collated copies. Carney picked up these pages,
looked at them, and laid them back. She then copied the
material she had brought with her, picked up a pile of
papers from the tray into which the machine discharges
completed copies, and returned to her office. When
bringing these papers back to her office , she found, at
the bottom of the copies which.she herself had made, a
copy of the "salary increases" list.12
On the following day, Carney brought the "salary in-
creases" list into the office of communications specialist
Collinsworth. Collinsworth had received a wage increase
following her November 1981 salary review. However,
she had sent memoranda to her superior (inferentially,
Paul Parham) alleging that her salary was still inad-
equate. Also, Parham had sent a memorandum to
Kirwen stating that his and Collinsworth's research of
magazines which set forth salary lists elsewhere showed
that she should be paid more, and that perhaps top man-
agement did not understand the job she was doing.
Carney showed Collinsworth the list and said that
Carney was upset because the list showed that she was
being paid less than other secretaries who had less serv-
ii The last line on the document begins "year-to-date 3/1/82." From
this date, the last entry under "total amount available" on p 4 , and the
entries under that heading on p. 5 , I conclude that the date-of-increase
entry "4/26/82" was a typographical error for "2/26/82 "
12 My findings on how Carney obtained a copy of the salary list are
based on her testimony on cross-examination , For demeanor reasons, I
accept such testimony in preference to her direct testimony that she her-
self made a copy of the list.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ice with Respondent than she did. The two women had a
discussion during which each of them compared her own
salary to those of other employees on the list who were
"on the same level" that she was. Carney said that she
was not sure what to do with the list, that she did not
know what Respondent would do to her if she turned it
in, and that she knew she could not use it for anything
because the employees were not allowed to discuss sala-
ries. The employees agreed that because they were not
authorized to have the list and should not have it, and
because the employee manual forbade them to discuss
salaries, they would not tell anyone else about it or give
anyone else copies. Later, Collinsworth borrowed Car-
ney's copy of the list and made a copy for herself. 13
From time to time thereafter, the two women discussed
this document with each other in connection with other
employees' promotions or other employees' complaints
about their wage increases. Both women generally kept
their copies of the list at home.14 Collinsworth learned
on an undisclosed later date, but before August 11, 1983,
that the document was part of Bodry's files. Collins-
worth never told Bodry or anyone else in the personnel
section that Collinsworth had a copy of the list, or at-
tempted to return it. Carney never made any attempt to
find out whom the list properly belonged to.
Carney credibly testified that she kept the "salary in-
creases" list because she was curious about the salaries of
others who had the same type of position that she did.
Collinsworth credibly testified that she initially took this
list "out of curiosity." Her prehearing affidavit states that
she and Carney "only wanted to keep the salary list be-
cause we were curious as to other salaries, and wanted
to see how we compared. I realized that even if I did not
compare favorably, I could not utilize the list for salary
negotiations with the employer. That is not why I
wanted the information, that is, for use in salary negotia-
tions . . . . Actually the confidential salary list only had
`aggravation value' to us in that we would see what
others, who we felt less deserving, were making, perhaps
more than us." She credibly explained that in so stating
that she "could not utilize the list for salary negotia-
tions," she had meant that she could not during negotia-
tions state that she had a copy of the list.
C. Collinsworth's showing of the list to then employee
Elledge
At the time that Collinsworth obtained a copy of the
list about March 2, 1982, she believed that Respondent's
rules prohibited employees from discussing salaries. Col-
linsworth was on the "day file" circulation list. On an
undisclosed date after she obtained the list but before
April 23, 1982, Collinsworth read and photocopied the
13 This finding is based on Carney's preheating affidavit, corroborated
by employee Craft's testimony (received without objection or limitaion)
that Carney told this to her For demeanor reasons, I do not credit either
Carney's denial of her conversation with Craft, or Carney's and Collins-
worth's testimony that Carney gave Collinsworth a copy. Carney testi-
fied at one point that she made a copy for Collinsworth, and later that
this copy was not made for her specifically
14 As to Carney, this finding is based on her testimony For demeanor
reasons, I do not credit Craft's testimony that Carney kept her copy in a
bag which she carried with her to and from work. See also infra fns. 30,
36, 39.
"White Collar Management" article about rules of this
nature (see supra, part II,A). This article led her to con-
clude that the rule had not been done away with, but
that if the matter ever came up, the NLRB ruling de-
scribed in the article would be in her favor.
On April 23, 1982, Collinsworth and then employee
Marilyn Elledge attended a seminar, to which Respond-
ent had sent them, on how to advance on the job, includ-
ing how to negotiate about salaries.15 While the two
women were driving home from the seminar in Elledge's
car, she said that she was unhappy about her inability to
obtain a wage increase after her supervisor's resignation
had caused some of his duties to be added to her own.
Collinsworth, who was Elledge's personal friend, gave
her a general description of the "salary increases" list
and offered to let her see it to help her obtain a satisfac-
tory wage increase.
The two women stopped off at Collinsworth's apart-
ment, where Elledge looked at the list.16 Collinsworth
told her that Collinsworth had obtained the list from
Carney, who had found it at a copier.17 Collinsworth
told Elledge that she could not use it during her salary
discussion when she was trying to negotiate her salary
because "it would just come back and get us both in
trouble." Collinsworth said that the list was "just some-
thing for [Elledge's] personnel information. It would go
no further." Collinsworth told Elledge that she could not
mention the list specifically. However, Collinsworth said
to Elledge that what she saw on the list could help her
know that the increase she was asking for was not out of
line for the job she was about to be doing.""
In November 1982, Parham conducted Collinsworth's
annual salary review interview. She did not mention the
"salary increases" list.
d. Carney's salary discussions and her use of the list
Although Carney's name was not on the "day file"
routing list, she had physical access to the "day file."
She credibly testified that until after her August 1983
discharge, she never saw the "White Collar Manage-
15 The evidence fails to show whether Respondent knew that the semi-
nar included the subject of salary negotiations
i6 This finding is based on the testimony of both women However, in
testifying before the unemployment compensation authorities, Collins-
worth denied disseminating the information on that list to anyone Before
me, Collinsworth testified, "I'm sorry I lied about it but I didn't see any
purpose in jeopardizing her job "
i7 This finding is based on Elledge's testimony. Although she could
not recall who Collinsworth said had found it, Elledge testified, in effect,
that Collinsworth gave her that employee's name
18 My finding that Collinsworth made this statement is based on her
testimony Elledge is a well-educated woman who in February 1983
became a member of Respondent's management, and who had attended,
just before Collinsworth showed her the list, a seminar which dealt with
how to negotiate about wages I do not accept Elledge's rather evasive
testimony about whether she believed that the resemblance between her
new (April 1982) job and the job done by her former supervisor was rele-
vant to how much Elledge should be paid. Accordingly, and for demean-
or reasons, I do not accept her denial, in effect, that Collinsworth made
the statement attached to this footnote. Further, because of Collins-
worth's credited testimony in this respect, I also credit her testimony that
she told Elledge about the list in order to help her know where she stood
and to be able to "maybe negotiate [a] better position" notwithstanding
Collinsworth's failure to make such a statement in her prehearing affida-
vit
A.L S.A. C.
ment" articlefl9 and did not know that she could not
lawfully be discharged for discussing salaries. In 1982,
both before and after obtaining a copy of the list, Carney
talked with employee Gay Sides, who believed her own
salary was too low, about salaries in general. In the latter
part of 1982, Carney talked in general about salaries with
employee Renee Hutton. In late 1982 or early 1983,
Carney talked in general about salaries with employee
Carolyn Welch. Carney did not show the "salary in-
creases" list to any employee except Craft (see infra) and
Collinsworth.
During a telephone conversation in early January
1983, when both Carney and employee Dianna Stewart
were at home, they expressed to each other dissatisfac-
tion with their respective salaries. Stewart said that their
salaries were probably held down by the fact that Re-
spondent was a nonprofit organization. Carney comment-
ed that some of Respondent's executives (Rashid,
Kirwen, and McKee) were well paid, and quoted exact
figures for their respective salaries.20 Carney said that if
Rashid was paid less, perhaps some of the employees
could be paid more. A few days later, Stewart told
McKee, her immediate supervisor, what Carney had told
her. McKee, who (as previously noted) was one of the
legitimate recipients of the salary list, seemed concerned,
and asked Stewart whether she had seen a list. She truth-
fully said no.2 i A few days later, McKee told Kirwen
that Stewart and Carney were discussing specific sala-
ries.
About March 1983, employee Craft came into Car-
ney's office which was adjacent to her own. Craft was
crying. She said more work was being put on her, she
thought that she needed help or more money, and she
had been told that Respondent could not pay her any
more. Carney happened to have with her a copy of the
"salary increases" list, which Carney had brought down
to the office with other papers in order to clean out her
personal papers at lunchtime. For Craft's benefit, Carney
showed her the list, and said that Carney had found it on
the copy machine. Craft asked Carney for a copy of the
list, but Carney refused. During the two women's con-
versation, which lasted about an hour, Carney expressed
unhappiness at her own failure to receive a promotion.22
19 As previously noted , this article was in the "day file" for a 1-week
period in March or April 1982 For this and demeanor reasons , I do not
credit Craft's testimony that Carney showed her the article about August
1983, but before Carney's discharge
20 My finding that Carney purported to tell Stewart these executives',
exact salaries is based on Stewart 's testimony For demeanor reasons, I
do not accept Carney's denial
21 My finding about the date of Stewart 's conversation with McKee is
based on his testimony , which is corroborated by Kirwen's testimony
about when McKee reported this conversation to him (see infra) My
findings about the substance of the Stewart -McKee conversation are
based on her testimony, which is partly corroborated by Kirwen's testi-
mony about the substance of McKee 's report to him Although I believe
her recollection of the substance of and what occasioned this conversa-
tion was better than she admitted , for demeanor reasons I regard her ver-
sion as more reliable than McKee 's He testified that Stewart told him
that Carney was discussing salaries and was offering to give specific
salary information , that he said there was nothing wrong with this, that
she did not mention a salary list, and (at least impliedly) that neither did
he
22 My findings in this paragraph are based almost entirely on Carney's
testimony Although Carney in effect testimonially denied to the unem-
1537
On an undisclosed later date or dates, Carney told Craft
that Collinsworth had seen the list and had made herself
a copy (see supra fn. 13).23
e. Elledge's promotion to a management job
In February 1983, Elledge received a promotion to a
management job. In the course of the discussions which
led to this promotion, she told management about the oc-
casion when Collinsworth had shown Elledge the list
and the two had discussed how inspection of the list
might assist Elledge in her April 1982 salary negotiations
in connection with her promotion to another job as a
rank-and-file employee (see infra part II,B,l,n,(2).
f. Collinsworth's discussion of the list with former
employee Sheya
In April 1983, Collinsworth took a trip to Denver,
Colorado, where she stayed at the home of Rhonda
Sheya. While at Sheya's home, Collinsworth had a dis-
cussion with Sheya, who until the previous month had
been Respondent's field representative in the Denver
office Sheya said that Denver Regional Director Gary
Schrenk, who had been her immediate supervisor when
she was working for Respondent'24 was not happy with
his salary, and that he believed other regional directors
were being paid more than he. Collinsworth said that she
believed this to be true. Sheya asked how she knew. Col-
linsworth said that she had a list . Sheya asked how she
herself had fared compared to the other regional repre-
sentatives . Collinsworth said she had not seen the list for
a while and did not remember , but that Sheya's salary
had probably been about the same as the other represent-
atives' salaries had been. Sheya asked Collinsworth about
the salary of a few other people, but Collinsworth did
not know. The two women exchanged comments to the
effect that the men made more than the women and the
whites generally made more than the blacks. To Sheya's
remark about one person 's salary, Collinsworth replied
that it was not what Sheya thought it was.25
g. Management 's discussions with regional
representatives about wages and with Regional
Director Schrenk about the list
On a date in the first 6 months of 1983, four or five of
Respondent's seven or eight regional representatives
(who are admittedly employees) came from the field to
Respondent's Memphis office for a training session. At
ployment compensation authorities that she had shown the list to Craft
and discussed it with her, both women testified otherwise before me For
demeanor reasons , I do not credit Craft 's testimony that Carney showed
her the list after expressing disappointment about the promotion and said
that if she was ever fired "or anything" she would use it to help her
against Respondent . I credit Carney' s denial that she made this last
remark Also for demeanor reasons , I do not credit Craft's denial that she
asked for a copy of the list
23 For demeanor reasons , I accept Carney's dental of Craft's testimony
that Carney said employee Pat Caldwell had seen a copy
24 McKee testified that regional directors hold "management type
jobs" and are responsible for all the staff within their respective offices
25 At the time this conversation occurred , Sheya was working for a
neurological institution The record fails to show whether it engaged in
fundraising activities Cf infra fn 57 and attached text
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their group request, Kirwen discussed salaries with them
as a group. Kirwen credibly testified that he inferred
from this discussion that they had previously discussed
salaries among themselves. The regional representatives
expressed to Kirwen the view that they were being un-
derpaid. Kirwen thanked them for approaching him and
eventually used their expressed opinion about appropri-
ate salary levels as a guideline to expand upward the
salary ranges for their job. None of them were disci-
plined for discussing salaries among themselves.
The record fails to show whether anyone from Re-
spondent's Denver office participated in this discussion.
In May 1983, Denver Regional Director Schrenk tele-
phoned Collinsworth and asked her to give him a copy
of the "salary increases" list. She told him that she did
not have one and further said that she could not and
would not get him one. At the end of May or early June
1983, while McKee was in Denver, Schrenk told him
that someone had sent Schrenk a list anonymously.26 In-
ferentially thereafter, McKee told Kirwen that Schrenk
had a salary list. On an undisclosed date in July, Schrenk
told McKee that Schrenk had obtained his copy of the
list from Sheya.27 McKee testified that because Sheya
had worked mainly with "special projects," on which
Carney also worked, Respondent concluded from
Schrenk's statement that Carney had probably given the
list to Sheya. At the hearing, Carney credibly denied
having done so.
h. McKee's discussion with employee Craft about the
list
On August 9 or 10 , 1983 at the insistence of employee
Craft, she spoke with McKee in his office . She told him
that she thought that she was entitled to a wage increase
because of recent increases in the volume of work she
had to do. She further told him that she had seen a
salary list which afforded justification to her claim and
showed that Respondent could afford to give her a raise
(see infra fn. 28). He asked her to describe the list. she
did so, and said that Carney had shown it to her.28
26 This finding is based on McKee's testimony, received without ob-
jection or limitation.
29 My findings in these two sentences are based on Kirwen's and
McKee's testimony, which was not received to show the truth of
Schrenk's representations
28 My findings in the second sentence and much of the third sentence
in this paragraph are based on inference from (1) McKee's testimony that
Craft initiated the meeting, (2) Craft's credible testimony that she be-
lieved, before Carney showed her the list, that Craft was entitled to a
wage increase because her workload had increased, (3) Carney's credible
testimony (received without objection or limitation) that Craft had so
stated to Carney, and had further expressed to Carney the belief that the
salary list shown her by Carney belied any claim by Respondent that it
could not afford an increase,' (4) McKee's credible testimony that during
his meeting with Craft, her work volume was discussed and she told him
about Carney's list, (5) McKee's testimony that the volume of work in
Craft's department was in fact very heavy; and (6) McKee's testimony
that Craft did complain to him on an unspecified date about the amount
of work she was doing and his tacit admission that she concomitantly
complained about her pay (although "I don't recall at that session") In
view of the foregoing, McKee's alleged inability to recall what caused
Craft to come in and want a conversation, and demeanor considerations,
I find that she requested the meeting to complain about her workload
and her pay, notwithstanding McKee's denial that on that day they dis-
cussed her salary and she complained about her workload See NLRB V.
Walton Mfg Co, 369 U.S. 404, 408 (1962) For demeanor reasons, I dis-
As a consequence of McKee's conversation with Craft,
he telephoned Kirwen, who was on vacation, on August
10 or 11. McKee asked what to do next. The two men
decided that McKee should have a meeting with Carney
to see if she had the salary list and to get it back.29
i. McKee'' discussion with Carney about the list;
Parham's discussion with Collinsworth about the list
On August 10 or 11, McKee asked Carney to come to
his office. When she reached his office, he told her that
Respondent had known for 6 months that she had a con-
fidential list in her possession and asked if' she had the
list. She said yes. He said he knew she had given a copy
to Collinsworth. Carney said yes. He asked whether she
had given a copy to anyone else. She truthfully said no.
He asked whether anyone else in the building had a
copy. She said, not as far as she knew, but she had left it
on the copier and did not know whether anybody else
had made a copy. He asked when she had found it. She
said about 18 months earlier. He asked her to bring the
list to him. She said truthfully that she did not have it
with her that day,30 but said that she would be "glad" to
give it to him and would bring it in the following morn-
ing. He told her that her job was not in jeopardy if she
gave him the list, and that he just wanted to be able to
tell his supervisor that she no longer had the list in her
possession.
My findings about the Carney-McKee conversation
are based on a composite of credible parts of the two
participants' testimony. Carney's preheating affidavit did
not state that McKee said management had known for 6
months about her possession of the list, and McKee in
effect denied making this statement However, I credit
Carney because she was the source of Collinsworth's list
and it is undenied that, about a week later, management
told Collinsworth that it had known for 6 months about
her possession of the list. For similar reasons, and even
though Carney testified at her unemployment compensa-
tion hearing that she had never told management about
giving Collinsworth a copy of the list, I credit Carney's,
testimony before me that it was McKee who first
brought Collinsworth's name into the conversation and
do not accept McKee's testimony otherwise. The credi-
bility of McKee's testimony in this respect is drawn into
question by his initial testimony that Carney said that she
had "shared" the list with Collinsworth and nobody
credit McKee's uncorroborated and somewhat unlikely testimony that as
a "spinoff" of this conversation, Craft told him that she was a little dis-
turbed because, more than 4 months earlier, she had seen the list that
Carney had and thought somebody should know about it. Craft, whom
Respondent called as a witness, gave rather sketchy testimony about this
conversation
29 My findings in this paragraph are based on credible parts of Kir-
wen's and McKee's testimony For demeanor reasons, and in the absence
of corroboration by Kirwen, I do not credit McKee's testimony that the
two men did not know what list it was and wanted to get the list to see
what list it was Such testimony is difficult to reconcile with his further,
testimony that he was already concerned with retrieving all copies of the
list.
20 My finding that this statement was true is based on her testimony I
do not credit Craft's testimony otherwise (see infra fns 36, 39, supra fn
14)
A.L.S.A.C. 1539
else3 t and that he did not learn until the following week
that Carney shared the list with other individuals too;
McKee testified that he had called Carney into the office
for the very reason that Craft had said Carney had
shown the list to Craft . Moreover , even McKee 's version
of the conversation draws into question the honesty of
his testimony that he did not imply to Carney that if she
turned the list in, she might have a better chance of
keeping her job.32 For the reasons set forth in this para-
graph , and after considering the witnesses ' demeanor,
concerning this conversation I credit only the testimony
which is reflected in my findings in the preceding para-
graph and the testimony of either which is directly cor-
roborated by the other . Specifically , I do not credit
McKee's testimony that he said that he knew Carney had
been discussing salaries but that Respondent 's concern
was the list , that he asked her whom she had discussed
salaries with , and that she said Collinsworth.
Later that day, Bill Rogers , who was Carney 's imme-
diate supervisor , asked her what the problem was.
Carney replied that there was no problem, that she had
found a list of salaries on the copy machine and "they"
wanted it back , and that she was going to take it in to
McKee the next morning . Rogers said that he wanted to
be clear in his mind because he was going on a week's
vacation.
About the same day as Carney's conversation with
McKee, Collinsworth 's immediate supervisor Paul
Parham asked Collinsworth if she had a salary list. She
said no . He asked her if she had ever had one . She said
yes, and that she had told Carney that possession of the
list could get Carney into trouble. He said that that was
all he wanted to know . Thereafter, and inferentially that
same day, Collinsworth asked Elledge if she had told
anyone about the list . Elledge untruthfully said no. Col-
linsworth said that she knew who it was, then, who
did.33 Collinsworth said that she was not going to men-
tion Elledge and put her job in jeopardy . 34 Later (infer-
entially) that same day, Collinsworth telephoned Sheya
and asked whether she had mentioned the list to anyone
at any time . Thereafter, in order to find out who had
"leaked the story," Collinsworth had several other con-
versations with Sheya about the list. During one of these
conversations , Sheya said that she had told Schrenk
about it. 3 s
31 Later, he testified that Carney said that she "gave" a copy to Col-
linsworth.
32 McKee testified that he told Carney that his two supervisors
(Rashid and Kirwen ) were both on vacation that week , that Rashid had
to approve "hiring and firing . or any personnel action of any magni-
tude," and that "with their absence, I wasn 't sure what was going to
happen, but I knew that it would probably be better if she turned the list
33 My finding that these remarks were made is based on Elledge's tes-
in
timony. For demeanor reasons , I do not accept Collinsworth 's denial.
34 This finding is based on Collinsworth's testimony . For demeanor
reasons , I do not accept Elledge's rather uncertain denial.
35 This finding is based on Collinsworth 's testimony , received without
objection or limitation.
j. Events between the, claimants ' discussion of the list
and their discharge
On the morning after McKee 's August 10 or 11, 1983
conversation with Carney , she used Respondent's copy
machine to duplicate her copy of the salary list and then
gave McKee the copy which she had picked up from the
copy machine in March 1982 . Although she testified that
she knew that McKee wanted all extant copies (cf. supra
fn. 29), she did not tell him that she had made another
copy . There is no credible evidence that management
knew at any relevant time about Carney 's retention of
this copy.36
Kirwen returned to the office , following his vacation,
on Monday, August 15 . That day , McKee reported his
conversation with Carney to Kirwen face-to -face, and to
Rashid by telephone. Rashid told McKee to investigate
the situation and find out how far the list had been dis-
seminated.
On August 15 and 16 , McKee got in touch with the
employees who had contact with Carney . He asked em-
ployee Sides to come into his office and discuss whether
Carney had "shared" with her a four- or five -page docu-
ment containing salary information and stamped "confi-
dential." She untruthfully said that Carney had shown
her the list. McKee asked employee Julie Russell into his
office to discuss whether the list (which he described to
her as he described to Sides ) was shared with Russell.
She said that the information had been volunteered by
Carney but that Russell had not wanted to see it and, in
consequence , had told Carney that Russell was not inter-
ested . 37 Also, McKee obtained a signed statement from
Elledge, who by this time was a member of management,
that Collinsworth had shown her confidential salary in-
formation (see infra, part II , B,I,n,(2).
k. Carney 's discharge
On August 18, McKee called Carney into Respond-
ent's conference room . Present were Carney , McKee,
Kirwen, Bodry , and company attorney Rossie. McKee
asked Carney if she had given a copy of the list to Col-
linsworth . Carney said that she had , that she was sorry
36 During Carney's termination interview , she was not asked whether
she still had a copy of the list (see infra fn 39 and attached text). Nor is
there any evidence that management tried to retrieve this extra copy on
any other occasion, indeed, Kirwen testified that he never personally had
a discussion with her about getting the document back Accordingly, I
do not accept Craft's and McKee's testimony that she told him that
Carney possessed such ,a copy. My finding that it was Carney who made
this copy is based on Carney 's testimony . I do not credit Craft's testimo-
ny that on the day of Carney's interview with McKee , Carney gave the
list to Craft and asked her to make a copy, which she did , Craft testified
that after making one copy of the list for Carney , Craft had started to
make a second copy for McKee; and, when Carney approached Craft in
the process of making this second copy, Craft gave Carney the old copy,
the new complete copy, and the incomplete copy Craft initially testified
that she had started to prepare a copy for McKee because he asked her
to try to get a copy and later denied that he made such a request. More-
over, Craft testified that she later told McKee that Carney had made a
copy of the list before giving it to him . McKee was not asked whether he
asked Craft to get a copy of the list in Carney's possession.
37 My findings about McKee's conversations with Sides and Russell
are based on McKee's testimony, received without objection or limita-
tion Sides and Russell did not testify. Carney credibly denied showing
the list to Sides Carney was not asked about Russell
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she had done this , and that she had made a foolish mis-
take. McKee asked if Carney had sent a copy to Denver
(Schrenk's home office). Carney truthfully said no.
McKee asked if Collinsworth had done so. Carney truth-
fully said that she did not know. McKee said that the
Denver office had been closed because of a "leak" of
salary information there. He asked whether Carney had
"shared" a copy of the list with anyone other than Col-
linsworth . Carney said no; as previously noted, she had
shown it , to Craft, who. had so advised McKee on
August 9 or 10. Rossie asked if Carney did not know
that this was against "our confidential policy of the
handbook," but he did not specify which rule he was
talking about (see infra fn. 48). She said that she did.
McKee said that she had a choice between resigning
with 2 weeks' severance pay or being terminated.38 He
said that management had reached this decision because
she had discussed and distributed a copy of the list. In
consequence of this meeting , Carney signed a letter re-
signing from Respondent 's employ, effective August 18,
for "personal reasons ." Respondent 's counsel stated at
the hearing that Carney had been constructively dis-
charged. During the meeting, Carney was not asked
whether she still had a copy of the list.39
1. Collinsworth's discharge
That , same day, Kirwen called Collinsworth into Re-
spondent 's conference room . Present were Collinsworth,
McKee, Kirwen, Bodry, and Rossie. Kirwen said that
Respondent had known for 6 months that Collinsworth
had a copy of the salary list. Collinsworth said that she
had had a copy for a short time, but that she had de-
stroyed it . Kirwen asked where she had obtained the list.
She said that Respondent already knew. Someone, prob-
ably Kirwen , said that management believed that Collins-
worth had received her copy from Carney. Collinsworth
neither confirmed nor denied this. Kirwen said that be-
cause she had discussed and distributed the salary list she
was going to have to resign or be terminated . Collins-
worth truthfully denied having distributed any copies of
the salary list. Kirwen asked her whether she had shared
information on the list with other employees , She denied
disseminating the information and asked "how he knew,
you know, why he was accusing [her] of this ."40 He said
that Sheya had told Respondent that Collinsworth had
the list and had talked to her about it. He and Rossie fur-
ther said that Respondent had a written statement from
another individual that Collinsworth had discussed the
information with that individual , but that Respondent
was not going to reveal that individual 's name. Kirwen
told her that she had disseminated information on the
salary list to other employees, that this was confidential
information , and that because she had disseminated that
information , she had a choice between resigning and
being fired. Collinsworth asked what the difference was
between resigning or being fired. Rossie said that if she
was terminated, she would be given vacation and "back
pay"; whereas if she resigned , she would be given 2
weeks' separation pay (see supra fn. 38 ). Collinsworth
asked for some time to think about what she wanted to
do, but was told that she had to make a decision at once.
She chose to resign , in order to make her employment
record with Respondent look better to prospective em-
ployers. She was told to write a letter of resignation, to
give it to Bodry, to clean out Collinsworth's desk with
Bodry present, and to get off the property . Collins-
worth' s resignation memorandum to Parham that day
states that she was resigning "due to circumstances
beyond my control." Respondent 's counsel stated on the
record that Collinsworth had been constructively dis-
charged. During this interview , Respondent referred to
Collinsworth' s access to salary information, specifically
higher salary information , but not to disseminating finan-
cial information . Kirwen did not tell her that she was
being discharged partly for untruthfulness.4 i That
evening, Collinsworth telephoned Elledge and said that
Collinsworth had not revealed that Elledge was aware of
the list.
The 1979-1984 employee handbook states:
An employee . . . will not be discharged or
placed on suspension without just cause . . . . Nor-
mally, an employee will be given at least one oral
and one written reprimand for the same breach of
discipline before suspension or discharge is adminis-
tered . . . . However, [Respondent] reserves the
right to discharge without notice or further pay any
employee . . . who is guilty of malfeasance in the
performance of his or her duties, or misconduct of a
moral nature.
33 Respondent's employee handbook provided that credit for earned
but unused vacation time would be given to employees who resigned
with 30 days' notice or were separated for cause . This latter group would
also receive pay for the time worked and earned up to and including the
time of discharge Under the handbook, 2, weeks' termination notice
would be given to employees who were terminated because their posi-
tions were abolished or they failed to meet the standards of their position
a® This finding is based on Carney 's testimony McKee did not cor-
roborate Kirwen 's testimony that she was so asked and that she denied
having another copy, cf supra fn 36. Moreover, there is no testimony
that during this interview any member of management expressed doubt to
Carney about her alleged representation that she had no more copies and
insisted that she return all copies . Nor is there any testimony that man-
agement made any subsequent effort to retrieve any other copies from
her, indeed, Kirwen testified that he never personally had a discussion
with her about getting the document back In view of the foregoing, and
for demeanor reasons, as to this matter I credit Carney.
40 The quotation is from her testimony
So far as the record shows, Collinsworth had never been
reprimanded for any reason, and Carney's sole reprimand
had been for working overtime without prior approval
McKee testified that he was not sure whether these two
4 i My findings in this paragraph are based on a composite of credible
parts of the testimony of Kirwen , McKee, and Collinsworth, and on Col-
linsworth 's prehearing affidavit (see Rule 801(d)(2)(A) of the Federal
Rules of Evidence) For demeanor reasons, I credit Collinsworth 's testi-
mony that Kirwen alleged that he had a statement from Sheya, and do
not accept his tacit and uncorroborated denial McKee 's testimony is am-
biguous as to whether Respondent 's handbook rules were mentioned,
before the state unemployment compensation authorities Collinsworth
denied, in effect , that they were mentioned ; she testified that she did not
recall Kirwen's specifically stating what rule she was being discharged
under , and Kirwen 's account of the interview did not mention the hand-
book I conclude that the handbook rules were not mentioned.
A.L.S.A C. 1541
employees' conduct constituted "malfeasance or miscon-
duct of a moral nature" within the meaning of this rule.
in. Aftermath
Collinsworth's and Carney's credible testimony shows
that on the day of their discharge, Collinsworth asked
Carney for a copy of the salary list and Carney gave
Collinsworth Carney's remaining copy, and that Collins-
worth gave this copy to her counsel or to the NLRB.
Accordingly, I credit Collinsworth's testimony that she
eventually destroyed her copy of the list. Moreover, in
view of her uncontradicted and credible testimony that
in May 1983 she told Schrenk that she did not have a
copy, I find that she destroyed her copy before this date.
However, I reject her testimony that her destruction of
the list occurred as early as about a month after she re-
ceived it about March 2, 1982. Collinsworth admittedly
showed her copy to Elledge on the evening of the day
they attended the seminar , a date which Respondent's
records fix as April 23, 1982.42 Also, Collinsworth's pre-
hearing affidavit states that she told Sheya in April 1983
that a pay scale was "floating around" and Collinsworth
"had the information ." Furthermore, the specificity of
Collinsworth's April 1983 description of the list to Sheya
makes it somewhat unlikely that Collinsworth had not
seen the list for about a year.
n. Other previously undiscussed factual issues
(1) The alleged telephone call incident
Over timely objection by the General Counsel, Craft
was permitted to testify as follows: On a date as to
which she was uncertain in the extreme (see infra), Craft
was in Carney's office when Carney was having a tele-
phone conversation. Craft heard Carney say that she was
upset about something involving Schrenk and salaries.
After hanging up the telephone, Carney told Craft that
Collinsworth had been the other party to the telephone
conversation; that Collinsworth had told Carney that
Schrenk and Sheya had seen the list; and that Collins-
worth had further told Carney that Sheya had told Col-
linsworth that Schrenk was upset because he was making
less than some of the other regional directors. Carney
told Craft that Carney was upset because Collinsworth
had given the list to Schrenk; Sheya had seen the list in
his briefcase; and this could get Carney into trouble.
This testimony by Craft was received against claimant
Carney to show that the other party to the telephone
conversation was Collinsworth and to show the contents
of their conversation, but not to show the truth of the
representations made to Craft during the telephone con-
versation. This testimony by Craft was not received
against Collinsworth for any purpose. See Rules
801(d)(1)(A) and 802 of the Federal Rules of Evidence.
Carney denied ever having had a telephone conversa-
tion with Collinsworth overheard by Craft that referred
to Schrenk; denied that Collinsworth ever told Carney
on the phone that Sheya saw the list in Schrenk's brief-
case; denied that Collinsworth ever told Carney that
Collinsworth had given a list to Sheya or Schrenk;
denied that Carney ever had a telephone conversation
with Collinsworth which Carney stopped and then told
Craft about; and denied ever telling her that Carney was
upset because Collinsworth had given the list to Sheya
and Sheya saw it, or that Collinsworth was saying that
the list was in Schrenk's briefcase. Carney's testimony in
this respect is indirectly corroborated by Collinsworth's
credible denial that she showed or gave the list to Sheya
or Schrenk.43 Furthermore, although McKee testified
that he relayed to Kirwen and Rashid Craft' s alleged
report to him about this alleged telephone conversation,
Kirwen did not corroborate McKee's testimony in this
respect, and Rashid did not testify. Moreover, although
McKee testified that Craft did not tell him about this al-
leged telephone conversation until after he asked Carney
about the list on August 10 or 11, and Craft' s report as
testified to by him suggests that the alleged telephone
conversation had occurred after he asked Carney about
the list, Craft testified initially that she reported this al-
leged telephone conversation to McKee during the same
conversation when she reported that Carney had showed
her the list, and at one point testified, in effect, that she
thought the alleged telephone call incident occurred on
August 4, or earlier.44 For the foregoing reasons, and
after considering the witnesses' demeanor, I credit Car-
ney's denial of the telephone call incident, discredit all of
Crafts' testimony about it, discredit Craft's and McKee's
testimony that she reported the alleged incident to him,
and discredit McKee's uncorroborated testimony that he
reported it to Kirwen and Rashid.
(2) The date or dates of Elledge's report or reports
to management about Carney, Collinsworth, and the
list
As previously noted , the credible (and, as to Collins-
worth, uncontradicted) evidence show that in August
1983 management told Collinsworth and Carney that it
had known for 6 months-that is , since February 1983-
about their possession of the list . Elledge was promoted
to a management job in February 1983 ; and, as previous-
ly noted , she had learned on April 23, 1982, that Collins-
worth and (at least at one time) Carney possessed copies.
So far as the record shows, no member of management
knew before February 1983 that both of these employees
had copies . Furthermore, McKee testified that Elledge
told him Collinsworth had shown her the list in Febru-
ary 1983-a date which precisely corresponds to El-
ledge's promotion but which is 10 months after the date
(as indirectly shown by Respondent's records) when Col-
42 This same deficiency undermines Carney's testimony that Collins-
worth told her, about a month after receiving the list, that Collinsworth
had destroyed her copy. Moreover, Carney's prehearmg ' affidavit states
that she did not know what Collinsworth did with her copy I do not
credit Carney's uncorroborated testimony that Collinsworth made this
representation to her
43 Collinsworth was not asked whether she had a telephone conversa-
tion with Carney, as described in Craft's testimony which was not re-
ceived against Collinsworth for any purpose
44 She finally testified that all she was sure of was that the alleged tele-
phone call incident occurred after Carney showed her the salary list
about March 1983 and before the discharges on August 18, 1983.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hnsworth showed her the list. Moreover, Respondent
withheld Elledge's written report to it about the incident
from Collinsworth during her discharge interview, and
unexplainedly failed to produce it at the hearing; I infer
that if produced, the report would have shown that El-
ledge told Respondent many months earlier about the in-
cident where Collinsworth showed Elledge the list and
said Collinsworth got it from Carney. Also, certain por-
tions of the testimony of McKee, Kirwen, and Elledge
indicate that management 's receipt of at least an oral
report from Elledge about that incident preceded the in-
vestigation ordered by Rashid on Monday, August 15, in
consequence of McKee's Wednesday, August 10, or
Thursday, August 11, conversation with Carney.45 Fur-
thermore, McKee testified that his August 1983 basis for
selecting employees to ask about Carney and the list was
whether the employees had contact with Carney. If Re-
spondent had previously been ignorant of Elledge's expo-
sure to the list, it is difficult to explain why McKee (ac-
cording to him) asked Elledge whether it had been
shown to her by Carney, with whom Elledge had not
been associated on the job since her February 1983 pro-
motion; indeed, Elledge's version of this alleged August
1983 conversation with McKee did not corroborate his
testimony that Carney was mentioned.
For the foregoing reasons, and for demeanor reasons, I
do not credit Kirwen's testimony that he did not learn
until August 1983 that Carney or Collinsworth had a list
of salaries, or McKee's testimony that nobody told him
until August 9 or 10, 1983, that Carney had shown or
given someone a copy of the list. Rather, I conclude that
in the course of the discussions which led to Elledge's
February 1983 promotion, Elledge gave management a
complete and accurate account of her April 1982 conver-
sation with Collinsworth about Carney and the list.
2. Analysis ' and conclusions
a. Respondent's motivation for the discharges
The initial question presented is Respondent 's motiva-
tion for the discharges. Various considerations cast into
question the truth of Respondent 's contentions regarding
its motivation . Thus, Respondent 's reliance on the dis-
chargees' untruthfulness in connection with the list is ob-
viously pretextual . There is no evidence whatsoever that
Respondent even mentioned this alleged motive until the
hearing before me, more than 9 months after the dis-
charges. Even before me, Kirwen initially did not men-
tion either employee's untruthfulness in testifying to
what he then asserted were the only reasons for their
discharge . Furthermore , Kirwen did not corroborate
McKee 's testimony that the untruthfulness by Carney
which allegedly was a partial motive for her discharge
45 McKee testified, in effect, that it was these Monday, August 15 in-
structions from Rashid which led McKee to procure Elledge's written
statement about the Collinsworth incident Elledge testified that there
was a time interval between the date on which she orally told McKee
about the Collinsworth incident and the date on which Elledge gave him
her written statement about the incident Even if this interval was only
the 3 or 4 days to which she testified, Kirwen could not have received
this document as early as he said he did-namely , "a few days" before
the Thursday, August 18, discharges-if her oral report had been made
no earlier than August 15
included her assertion during her August 10 or 11 con-
versation with McKee that she had not shared the list
with anyone but Collinsworth and Carney' s statement
during that interview (which statement was in fact true;
see supra fn. 14) that she did not have the list at the
office.46 Moreover, McKee's testimony that until several
days after this conversation he believed that this was an
"honest conversation" is belied by his testimony that he
had asked Carney to come into his office because of a
conversation in which Craft told him that Carney had
shown the list to her. Further, although McKee testified
that he did not know whether Carney and Collinsworth
would have been discharged if they had told the truth
regarding their use of the list, Kirwen testified that they
would have been discharged even if they had been truth-
ful about it.47
Moreover, although Respondent has contended at all
times that the claimants were discharged at least partly
because they disregarded the at least allegedly confiden-
tial character of the "salary increases" list, Respondent
has taken inconsistent positions as to how the list ac-
quired this character. More specifically, although
Kirwen told Collinsworth and the unemployment com-
pensation authorities that the specification of manage-
ment salaries was a principal reason for the list's confi-
dentiality, his prehearing affidavit to a Board investigator
states that the discharges were motivated by the fact that
the list was a confidential document regardless of con-
tent. Before me, Kirwen and McKee similarly disavowed
any reliance on its content and also testified that the dis-
charges had nothing to do with the fact that the list con-
tained management salaries. Further, McKee testified
that the discharges had -nothing to do with the fact that
the document contained employee salaries. Moreover, at
the close of the General Counsel's casenn-chief, Re-
spondent's counsel stated that the claimants were dis-
charged because "they had the possession of a confiden-
tial document that just happened to have some salary in-
formation on it. And, they disseminated that, as well."
Indeed, Kirwen's testimony has to some extent varied as
to just what activities in connection with the list had led
to Respondent's discharge decision. He initially testified
that the only reason for Collinsworth's discharge was
"submitting confidential information"; that Carney was
discharged "For the same reasons, for disseminating con-
fidential information"; that this was the only reason for
Carney's discharge; and that the "confidential informa-
46 As an instance of Carney 's untruthfulness , Kirwen referred to Car-
ney's alleged August 18 denial that she still had a copy of the list How-
ever, the credited evidence shows that she was not asked that question
and that neither Craft nor (so far as the record shows) anyone else told
management that Carney still had a copy (supra part II,B,I,k)
4' Respondent 's postheanng brief asserts (emphasis in original), "The
fact that Carney and Collinsworth were untruthful with .. management
after they were confronted had some effect on the decision, to terminate
them However, their failure to tell the truth was not an independent
reason for their termination, and they would have been discharged even if
they had been totally honest . . Nevertheless their continuing deceit
and defiance of management certainly solidified [Respondent 's) resolve
that they were two people who could not be trusted with confidential
information of the type that routinely had been made available to them in
the performance of their duties" (pp. 12-13) As to the assertion in this
last statement , see infra part II, B, 2,b
A.L.S.A.C.
tion" consisted of the "salary increases" which he de-
scribed as a "Confidential document that lists the salaries
and the evaluations of all the employees depending on
the time of the year." A little later Kirwen testified that
by the word "disseminating" he meant "the actual
giving" of a copy of the document to somebody else,
that Carney was terminated for such conduct, and that
Collinsworth was discharged for "sharing confidential in-
formation, not disseminating."
Kirwen and McKee testified, and Respondent's post-
hearing brief asserts (p. 6), that Carney and Collinsworth
were discharged under the following portion of part VI
of the 1979-1984 handbook:
CONFIDENTIAL INFORMATION
Because of the nature of the work we do, you have
access to information that is of a confidential nature.
This information should not be discussed except
with authorized persons. In any situation arising
about which you have a question, please advise
your immediate supervisor . Information concerning
the diagnosis , prognosis or current condition of any
patient is considered confidential and is not to be re-
leased under any circumstances.
However , Kirwen and McKee admitted that neither the
claimants nor any other employees were ever informed
that this rule covered salary information ' 411 and McKee
testified that Respondent 's director of information was
responsible for determining whether "information about
ALSAC and the hospital" was to be withheld from "the
general public" as confidential . Moreover, there is no
evidence that before the hearing Respondent ever stated
to anyone that Carney and Collinsworth were dis-
charged for breach of that rule (see supra fn. 48), which
in any event at least arguably refers only to information
other than that involved here-namely , patient , informa-
tion and information available to Respondent 's employ-
ees because of the nature of the work they did.49
The record shows that at least until Carney and Col-
linsworth were discharged on August 18, 1983, Respond-
ent took no action against employees who discussed sala-
ries but did nothing more . Thus, as early as January
48 Their testimony in this respect indirectly corroborates Carney's
credited testimony that during her termination interview, she was not
told what rule she had violated.
41 This reading of the "Confidential Information" rule is to some
extent supported by the fact that revealing the content of the "salary in-
creases" document was rather clearly forbidden by the unlawful "Discus-
sion of Salaries" rule in the same handbook
I find no record support for the suggestion in Respondent's brief (p
21) that Carney regarded the "salary increases" list as coming within the
scope of the "Confidential Information" rule. Collinsworth's preheating
affidavit listed several kinds of "confidential" information whose disclo-
sure was a dischargable offense However, the record contains no specific
reference by her to the "Confidential Information," part VI, rule; she was
never advised by any supervisor that salary information was included
under that rule; the items mentioned in her affidavit do not include pa-
tient information, although it is clearly covered by that rule, and she cre-
dibly testified that her initial decision not to distribute and discuss the in-
formation that she had obtained from the "salary increases" list was
based on the unlawful "Discussion of Salaries" rule I discuss infra, part
II,B,2,b Respondent's contention that the claimants' action with respect
to that list led Respondent to believe that they might in the future release
"confidential" information unrelated to their statutory rights.
1543
1983, McKee learned that employees Carney and Stew-
art had been discussing salaries with each other; but Re-
spondent took no action against Stewart and no immedi-
ate action against Carney. As early as February 1983,
Respondent learned that Elledge and Collinsworth had
been discussing salaries with each other, but Respondent
thereafter promoted Elledge and it took no immediate
action against Collinsworth. Sometime during the first 6
months of 1983, Kirwen inferred that four or five of Re-
spondent's regional representatives had been discussing
salaries with each other. They were not disciplined for
this conduct; indeed, Kirwen later used their expressed
opinion about salary levels to expand upward the salary
ranges for their job. McKee learned on various dates be-
tween August 10 and 17, 1983, that Craft, Sides, and
Russell had discussed salaries with Carney; but Respond-
ent took no action against Craft, Sides, and Russell.
Furthermore, the record shows that Respondent had
known -since February 1983 that Collinsworth had ob-
tained a copy of the list through Carney and had shown
it to Elledge. Moreover, McKee's discussion with Stew-
art about January 1983 had made him aware that Carney
was revealing management's exact salaries and had given
him good reason to suppose that Carney had the "salary
increases" list. Also, McKee testified that he concluded
in July 1983 that Carney had given a copy of the list to
former employee Sheya and that Sheya had given it to
Regional Director Schrenk. However, until August 1983,
Respondent had taken no action against Carney, Collins-
worth, or Schrenk and had made no effort to retrieve
the list from them.
I infer from the foregoing that Carney's and Collins-
worth's August 18, 1983 discharge was precipitated by
Craft's August 9 or 10, 1983 express reliance on the list
in support of her claim to McKee that she was entitled
to a wage increase and Respondent could afford to give
her one. Craft's argument led Respondent to suspect or
ascertain that in deciding what wage increase to seek and
accept in 1982, Elledge had been guided by the list
which Collinsworth had shown her.50 Accordingly, I
conclude that Respondent discharged Carney and Col-
linsworth because they had made information from the
"salary increases" list available to other employees and
such employees were using this information as a basis for
their salary discussions with Respondent. Moreover, I
infer from the probabilities of the case that Respondent
believed (and correctly so) that Carney and Collinsworth
had revealed this information to other employees in the
course of discussions about obtaining wage increases and
for the purpose of improving the employees' ability to
maximize such increases.5 i To the extent inconsistent
with this finding, I do not accept Kirwen's and McKee's
testimony, or the contention of Respondent's counsel,
so When showing the list to Elledge, Collinsworth had cautioned her
not to specifically mention it during her salary discussion
6' I do not credit McKee's testimony that he did not believe that
Carney used the information on the list to assist other employees and that
he had "no idea" why she shared it with them His testimony in this re-
spect is inconsistent with my findings as to his discussion with Carney
about August 9, 1983 Moreover, he disingenuously testified that he did
not see how the information on the document could be useful to an em-
ployee who wanted to negotiate his own pay increases.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the claimants' discharge was not motivated by their
discussion of salaries with other employees.
b. Whether the discharges violated the Act
Laying to one side the use of the "salary increases"
list, Section 7 of the Act protected employee Collins-
worth's April 1982 conversation with employee Elledge
about how Elledge could obtain a satisfactory wage in-
crease, and employee Carney's March 1983 conversation
with Craft about how Craft could obtain a wage increase
in view of Respondent' s claim that it could not pay her
any more. NLRB v. Peter Cailler Kohler Swiss Chocolate
Co., 130 F.2d 503, 505-506 (2d Cir. 1942), cited with ap-
proval in Houston Contractors Assn. v. NLRB, 386 U.S.
664, 668-669 (1967), and in NLRB v. J. Weingarten, 420
U.S. 251, 261 (1975); Morrison-Knudsen Co. v. NLRB,
358 F.2d 411 (9th Cir. 1966); Supreme Optical Co., 235
NLRB 1432 (1978), enfd. 628 F.2d 1262 (6th Cir. 1980);
Kawasaki Motors Corp., 268 NLRB 936 (1984).52 Ac-
cordingly, Carney's and Collinsworth's discharge partly
because of these conversations violated Section 8(a)(1)
even assuming that Respondent could lawfully have dis-
charged them for retaining the "salary increases" list,
copying it, showing it to others, and revealing its content
to others. The discharges were unlawful because Re-
spondent has plainly failed to bear the burden of show-
ing that Carney and Collinsworth would in any event
have been discharged for the above-specified conduct in
connection with the list (see NLRB v Transportation
Management Corp., 462 U.S. 393 (1983)). Indeed, Re-
spondent had known for months prior to the discharges
that Collinsworth had obtained a copy of the list from
Carney, that Collinsworth had showed it to Elledge, and
that Carney had revealed to Stewart the manegement
salaries specified on the list. Moreover, Respondent had
suspected for weeks that Carney had given a copy of the
list to former employee Sheya and that Sheya had given
it to Regional Director Schrenk.
Respondent's conduct in treating the "salary increases"
list as confidential denied its employees the very infor-
mation needed to discuss wages with each other, and
thereby adversely affected the employees' statutory right
to discuss wages.53 However, Respondent can nonethe-
less lawfully enforce that policy if its legitimate and sub-
stantial business interests in support of that policy out-
weigh the employees' interest in learning and discussing
each other's wages. International Business Machines
Corp., 265 NLRB 638 (1982); Altoona Hospital, 270
NLRB 1179, 1180 (1984).
Kirwen testified that Respondent considered the infor-
mation on the "salary increases" list to be confidential
because Respondent wishes to protect each individual
employee's privacy as to his salary, and as to the quality
52 I need not and do not determine whether, still laying the "salary
increases" list to one side, Carney and Collinsworth could have been dis-
charged for their conversations with each other and with company per-
sonnel other than Craft and Elledge See Jeannette Corp V NLRB, 532
F 2d 916, 919-920 (3d Car 1976), Mushroom Transportation Co v NLRB,
330 F 2d 683 (3d Cir 1964)
53 I regard as wholly insincere Kirwen's testimony that the tendency
of the rule was not to make it so an employee would not know what the
other employees were making in their increase negotiations
of his work as reflected by any merit increase he may
have received; and to withhold from its competitors in
the job market for fund-raising employees the amount of
money available for merit increases, and the size of "key
employees"' salaries, in order to prevent these competi-
tors from hiring such employees away from Respondent.
He testified that Respondent has no objections to em-
ployees knowing the amount of money available for
raises . When asked the reasons for classifying the salary
information as confidential, McKee testified to the em-
ployee privacy consideration, and also gave as a reason
(somewhat inconsistently with Kirwen's testimony) that
the "salary increase" list is intended and used solely for
the purpose of managing Respondent's budget; McKee
said nothing about any desire to prevent other firms
from hiring away Respondent's employees. Further, as
suggested in Respondent's able brief (p. 20 fn. 40), the
employees' suggested privacy interest is in the instant sit-
uation particularly susceptible to protection by Respond-
ent, because the salaries of Respondent's employees are
set (within the rate ranges for their classifications, which
ranges are not specified on the "salary increases" list)54
on the basis of individual merit. I agree that the forego-
ing testimony, if unreservedly accepted, would show le-
gitimate and substantial reasons for Respondent's con-
duct in treating the "salaries increases" list as confiden-
tial. International Business Machines, supra. Furthermore,
although the document was clearly and repeatedly
marked "confidential," and although neither Carney nor
Collinsworth had duties which gave her legitimate access
to it, Carney made no effort to destroy it,55 Collins-
worth made herself a copy, and both women showed the
document to others and revealed to others some of the
information on that list. These circumstances, too, pro-
vide some support for Respondent's contention that the
employees were not engaged in protected activity when
they showed it to other employees. See Bullock's, 247
NLRB 257 (1980), 251 NLRB 425 (1980); International
Business Machines, supra; Roadway Express, 271 NLRB
1230 (1984); Ridgely Mfg. Co., 207 NLRB 193, 196-197
(1973).
However, other evidence counterbalances the weight
which should be accorded the foregoing considerations.
Thus, Kirwen's virtual disavowal of his subordinate
McKee's reliance on the budgetary purpose of the
"salary increases" list provides a substantial basis for dis-
counting the importance of that factor in Respondent's
"confidential" designation. Similarly, although McKee
was not in Memphis when this document was so desig-
nated his status as a high-ranking member of manage-
ment when he testified before me, and the fact that he
was one of the four with legitimate access to the list, call
for a somewhat similar inference from his failure to men-
54 Each employee is advised of his own classification and can find out
from his own supervisor or from the personnel office the rate range
therefor. Normally, discussions among employees are the only way an
employee can determine other employees' classifications
55 I attach virtually no weight to Carney's failure to return her copy.
It was obviously not Respondent's sole copy, and if she had revealed her
possession of the copy by openly returning it she risked discipline flow-
ing from a suspicion by management that she had pilfered the document,
read it, and/or copied it
A.L.S.A C.
tion any desire by Respondent to prevent other employ-
ers from hiring away Respondent's employees.56 More-
over, Kirwen could not recall any specific instance when
any employee ever told management that he did not
want his salary discussed, and McKee gave only one in-
stance, about May 1982. Furthermore, the importance (to
Respondent's "confidentiality" designation) of Respond-
ent's desire to prevent its key employees from being
hired away by wage increases is to some extent dimin-
ished by Kirwen's testimony that Respondent's "confi-
dlentiality" rule would not be violated if an employee
compiled salary information from check stubs which he
happened to discover, and by Respondent 's admitted fail-
ure to forbid "key" (or any other) employees to reveal
their salaries to prospective employers . Moreover, Re-
spondent has elected to become a member of a private
organization (the National Information Bureau), whose
members are other charitable organizations (the very or-
ganizations which would likely be most interested in
hiring away Respondent's "key employees"), and which
requires its members to disclose the salary range attached
to various job titles in "top management " (the very per-
sons whom Respondent 's "competitors" in fundraising
would be most likely to lbe interested in hiring away).57
Finally, and perhaps most importantly , Kirwen and
McKee both testified that the discharge decision had
nothing to do with the fact that the "salary increases"
list included employee and management salary informa-
tion , and Kirwen testified , in effect, that the decision had
nothing to do with the fact that it revealed the amount
of money available for raises . Because the list contains
very little additional information , I find such testimony
almost impossible to reconcile with any contention that
Respondent has a legitimate and substantial interest in
treating the list itself as confidential.
Respondent seems to be contending that the "Confi-
dential" designation on the salary list is entitled to
weight because Collinsworth had access to confidential
information (patient information and fundraising manu-
als) in the ordinary course of her job, Carney had access
to fundraising manuals in the ordinary course of her job
and was also being given data-processing training which
would give her access to other confidential information
(donor files), the disclosure of at least some of these
types of information is plainly forbidden by the "Confi-
dential Information" paragraph in part VI of the 1979-
1984 handbook , 58 and these employees ; disclosure or in-
56 The General Counsel also relies on the fact that Respondent, St
Jude Hospital , and St Jude Hospital Foundation , Inc. publicly released
their total , combined salary expenditures for fundraising activity. Howev-
er, I fail to see how this information would benefit a company which
wanted to hire away particular persons on Respondent's payroll.
59 Although the material filed with the Bureau does not include any-
one's name , some job titles are held by only one person each.
"8 The first three sentences of the "Confidential Information " rule in
the current handbook are the same as those in the 1979- 1984 handbook.
However, the fourth and last sentence of the current rule states, "The
dissemination of confidential information without authority to persons not
authorized is subject to disciplinary action which could result in termina-
tion (see Part I, SEPARATION FOR CAUSE)." This latter rule states,
in part , that a nonprobationary employee may be discharged for, among
other things , "Malfeasance or conduct which violates common decency
or morality" and "Obtaining confidential information without authority
and disseminating to persons not authorized "
1545
formation on the "salary increases" list although it was
marked "confidential" gave reason to suppose that they
would also disclose the confidential information to which
they had legitimate access. Further, Respondent points to
Roadway Express, supra, 271 NLRB 1238. The Board
there held that the presence or absence of a specific
company rule is a factor in deciding whether an employ-
ee's conduct is protected by the Act, but it is not the
controlling factor (at 1239). The Board then went on to
find that an employee was lawfully discharged for taking
bills of lading from his employer 's files and giving them
to a union to assist it in supporting its claim that the em-
ployer was assigning bargaining unit work to nonunit
employees . The Board stated that regardless of the ab-
sence of a written rule, the employer had a right to
expect its employees not to remove records from files to
which they had no proper access. However, in Roadway
Express, the employer discharged the employee, 5 days
after acquiring reason to suspect that he had taken such
records and the day after he admitted taking them, for
the sole reason that he had taken the records . In the in-
stant case, Respondent retained both women in their pre-
vious positions for many months after Respondent had
learned that both of them had shown the "salary in-
creases" list to other employees , during which period the
claimants are not contended to have given Respondent
any further reason to suspect that they were disclosing
any confidential information to which they had access
(proper or otherwise) in the course of their work.59 Nor
did Respondent during this period make any effort (so
far as the record shows) to halt Carney's data-processing
training; indeed , it appears most unlikely that this train-
ing began before Respondent learned in February 1983
that Carney was Collinsworth's source of the document.
Respondent 's inaction very substantially detracts from, if
indeed it does not wholly negate , the weight to be as-
signed to the fact that the list was labeled "Confidential."
For the foregoing reasons, I find that Respondent did
not have a legitimate and substantial interest in keeping
the "salary increases" list confidential and that, accord-
ingly, Respondent could not lawfully discharge employ-
ees for showing it to and discussing it with other em-
ployees. Moreover , International Business Machines,
supra, calls for the conclusion that such discharges
would be unlawful even if Respondent had legitimate
and substantial reasons for its confidentiality policy. It is
true that the panel majority in that case found that the
interests of that employer's employees in learning and
discussing each other's wages did not outweigh that em-
ployer's legitimate business interests in support of its
policy of forbidding the distribution of salary information
which included each employee's level of employment,
salary range , and projected increases and the timing
thereof. But, in so finding , the majority heavily relied on
the fact that that employer did not prohibit employees
The 1984 rules further state that the personnel department will confirm
the amount of an employee 's salary to "sources outside the organization,"
without the , written consent of the employee in question
59 Indeed, McKee testified that so far as he knew , neither of them had
ever disclosed any confidential information other than confidential salary
information
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from discussing their own wages, attempting to deter-
mine what other employees were paid, or compiling or
determining wage information on their own. The Board
further found the record to be insufficient to support a
finding that that employer's confidentiality policy so ad-
versely affected the employees' ability to obtain such in-
formation that any attempt to do so would be meaning-
less. However, in the instant case, Respondent's employ-
ee handbook throughout Carney's employment, and at
least during most of Collinsworth's,60 "expressly prohib-
ited" the "discussion of salaries between employees."
That same provision warned that an employee's failure
to observe that policy could compromise his salary bar-
gaining position, might be considered during his periodic
performance evaluation, and might result in disciplinary
action. International Business Machines points to the con-
clusion that the presence of such an unlawful provision
would cause the employees' interests in learning and dis-
cussing each other's wages to outweigh any legitimate
interest Respondent may have had in keeping confiden-
tial the information on the "salary increases" list. I so
find.
Otherwise, after having maintained what Respondent
had admittedly known for years to be an unlawful confi-
dentiality rule which threatened employees with disci-
pline if they obtained wage information by asking other
employees what they were being paid, Respondent
would be privileged to discharge or otherwise discipline
employees breached another confidentiality policy. The
considerations which have led me to reject Respondent's
contention that no unfair labor practice finding should be
based on this rule have caused me to give little weight,
in connection with whether Carney and Collinsworth
were protected by the Act in showing the list to other
employees and telling them what was on it, to the evi-
dence that Respondent did not punish some employees
who violated the rule, and that Respondent made some
exceedingly modest efforts to advise some of its person-
nel that the rule was unlawful. The record affirmatively
shows that Carney believed the rule to be in effect
throughout her employment; 6 i that Craft (to whom
Carney showed the list) believed that management did
not want employees to reveal their salaries to other em-
ployees; and that Elledge (who accepted Collinsworth's
offer to let her see the list to assist her in salary negotia-
tions) believed that the rule against discussion of salaries
had been in effect until the new handbook was issued,
more than 8 months after the discharges.62 Although
Collinsworth had concluded (after copying the list but
before showing it to Elledge) that the NLRB would
probably find the rule to be unlawful, Collinsworth be-
lieved it to be in effect at all times. In consequence, she
so It is unclear whether Collinsworth's November 1979 hire preceded
or followed the November 1979 issuance of the handbook
61 Although she had access to the "day file" which for I week con-
tained the "White Collar Memorandum," Respondent makes no conten-
tion that her duties included reading the file, which was not routed to
her
fiz In contending that Carney and Collinsworth were engaging in pro-
tected activity when they showed the list to other employees and told
them what was on it, the General Counsel's brief heavily relies on G C
Exh 9 However, the exhibit was received for other, limited purposes
only
did not tell management that she believed the rule to be
"wrong" and intended to violate it.63 Although her testi-
mony is equivocal about whether the unlawful rule af-
fected the nature and scope of her discussions about sala-
ries, Respondent is not entitled to a finding that her con-
duct would have been the same irrespective of that rule.
Transportation Management, supra ; Radio Officers' Union
v. NLRB, 347 U.S. 17, 52 (1954).
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(1) of the Act by discharging Carney
and Collinsworth.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent's operations meet the Board's jurisdic-
tional standards.
3. Respondent has violated Section 8(a)(1) of the Act
by:
a. Maintaining a rule which forbids discussion of sala-
ries between employees.
b. Discharging Carol J. Collinsworth and Jacquelyn S.
Carney.
4. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom and from
like or related conduct. Affirmatively, Respondent will
be required to offer Carney and Collinsworth immediate
reinstatement to the jobs of which they were unlawfully
deprived or, if such jobs no longer exist, substantially
equivalent jobs, without prejudice to their seniority or
other rights and privileges previously enjoyed; and to
make them whole for any loss of pay they may have suf-
fered by reason of their unlawful discharges, less net in-
terim earnings, to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as called for in Florida Steel Corp., 231 NLRB 651
(1977).64 Also, Respondent will be required to remove
from Carney's and Collinsworth's files any reference to
their unlawful discharges, and notify them in writing that
this has been done and that evidence of such unlawful
discharges will not be used as a basis for future personnel
actions against them. Sterling Sugars, 261 NLRB 472
(1982). Because the unlawful rule has been deleted from
Respondent's employee handbook, no such deletion will
be required. However, because the handbook containing
the unlawful rule was distributed to all Respondent's em-
ployees throughout the country, Respondent will be re-
quired to post appropriate notices in all of its offices.
68 When she told Kirwen about November 1982 that employees were
discussing salaries, he did not ask her to name the employees. However,
he "looked nervous about it" and did not tell her that Respondent had no
objection to such activity
64 See generally Isis Plumbrng Co, 138 NLRB 716 (1962)
A.L.S.A.C.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed65
ORDER
The Respondent, American Lebanese Syrian Associat-
ed Charities, Inc. d/b/a A.L.S.A.C., Memphis, Tennes-
see, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule which forbids discussion of sala-
ries between employees.
(b) Discharging employees because they have engaged
in activities protected by Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Carol J. Collinsworth and Jacquelyn S.
Carney immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of
the decision.
(b) Remove from its files any reference to Collins-
worth's and Carney's discharge and notify them in writ-
ing that this has been done and that the discharges will
not be used against them, in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at all its offices copies of the attached notice
marked "Appendix."66 Copies of the notice, on forms
provided by the Regional Director for Region 26, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
65 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
se If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1547
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT maintain a rule which forbids discussion
of salaries between employees.
WE WILL NOT discharge employees because they have
engaged in activities protected by the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act.
WE WILL offer Carol J. Collinsworth and Jacquelyn S.
Carney immediate and full reinstatement to the jobs of
which they were unlawfully depraved or, if those jobs no
longer exist, substantially equivalent jobs, without preju-
dice to their seniority or other rights and privileges, and
make them whole, with interest, for any loss of pay they
may have suffered by reason of their discharges.
WE WILL remove from our files any reference to the
discharges of Collinsworth and Carney and notify them
in writing that we have done so and 1 hat evidence of
their unlawful discharges will not be used as a basis for
future personnel actions against them.
AMERICAN LEBANESE SYRIAN ASSOCIATED
CHARITIES, INC. D/B/A A.L.S.A.C.