Lucky Stores

National Labor Relations Board - Board Decisions

Apr 11, 1984

269 N.L.R.B. 942 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lucky Stores, Inc. and Mary Louise Neilson. Case
32-CA-2533
11 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 9 January 1981 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs and briefs in re-
sponse to each other's exceptions.
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,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I In sec. III,B,3,(b),(2), Causation, of his decision, the judge inadvert-
ently stated that the Respondent's Divisional President Hoover admon-
ished Divisional Vice President Herkal about the fact that Charging
Party Neilson had bid on a job in the bargaining unit, whereas the record
establishes that this admonishment was delivered by Divisional Controller
Peterson. The judge's erroneous finding in this regard does not affect our
ultimate result in this case.
I In affirming the judge's conclusion that Charging Party Neilson was
discharged solely because of suspicions held by the Respondent's officials
that she would divulge confidential labor relations material, we find it un-
necessary to pass on the judge's discussion of the rights of confidential
employees under the Act.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge.
This case was tried before me on September 29, 1980, in
Oakland, California, pursuant to a complaint and notice
of hearing issued by the Acting Regional Director for
Region 32 of the National Labor Relations Board on
April 30, 1980, which is based on a charge and amended
charge filed on March 4, 1980, and April 29, 1980, re-
spectively, Stores, Inc., herein Respondent. The com-
plaint alleges and the answer denies that Respondent ter-
minated the Charging Party because of her union or
other protected concerted activities or in order to dis-
courage employees from joining, supporting, or assisting
a union or engaging in other protected concerted activi-
ties.
All parties' were given full opportunity to participate
at the hearing, to introduce relevant evidence, to exam-
ine and cross-examine witnesses, to argue orally, and to
file posthearing briefs. Excellent and very helpful briefs
were filed by the General Counsel and Respondent.
On the entire record herein and from my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent has been at all times material herein a
California state corporation, with an office and place of
business in San Leandro, California, engaged in the retail
sale of grocery items at various facilities. Respondent, in
the course and conduct of its business operations, annual-
ly derives gross revenues in excess of $500,000 and pur-
chases and receives goods and services at its California
facilities from outside the State of California of a value in
excess of $50,000.
The complaint alleges, the answer admits, and I find
that Respondent is and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORANIZATION
The complaint alleges, the answer admits, and I find
that Office and Professional Employees Union, Local 29,
Office and Professional Employees International Union,
AFL-CIO, herein the Union, has been at all times mate-
rial a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Respondent operates a chain of grocery stores. Its
northern food division, herein the Division, operates
stores in the Pacific Northwest and in northern Califor-
nia. These facilities employ some 10,000 employees es-
sentially all of whom are represented by various labor
organizations in a variety of bargaining units. The Divi-
sion's headquarters is located in San Leandro, California.
Certain of the employees at this location are also repre-
sented by labor organizations in various units. One of
these units is a clerical unit of approximately 200 em-
ployees represented by the Union.
Walter H. Herkal is the vice president and industrial
relations manager for the Division. He is in charge of the
industrial relations department at San Leandro and re-
ports directly to the Division president, John Hoover.
The department is staffed by his assistant and personnel
manager Robert Gill, a secretary, and the employees in
the personnel department. The personnel department has
approximately eight unrepresented clericals, a personnel
I The Charging Party elected to participate only as a witness in the
proceedings.
269 NLRB No. 167
942
LUCKY STORES
specialist, and a supervisor. Herkal has primary responsi-
bility for formulation and implementation of division
labor relations policies including such areas as collective
bargaining, contract interpretation, and contacts with
Federal regulating agencies such as the Equal Employ-
ment Opportunity Commission and the NLRB.
The Charging Party commenced employment with
Respondent as a clerical in the personnel department in
1973 and resigned in late 1977. In mid-1978 she returned
to Respondent's employ as a temporary employee but
soon thereafter accepted permanent employment as sec-
retary to Herkal and Gill. She served in this capacity
until October 5, 1979.2 The Charging Party, as secretary
to Herkal, was a party directly and indirectly to the for-
mulation and implementation of labor relations policies
of the Division. She opened incoming material and pre-
pared and or reviewed outgoing correspondence for
Herkal. Her physical proximity to Herkal's office com-
bined with his habit of leaving his door open during
strategy sessions with management colleagues and during
electronically amplified or "squawk box" telephone con-
versations with others exposed her to essentially all of
Herkal's communications made when in his office.
2. Events leading to the Charging Party's
termination
In May and June the unrepresented employees in the
personnel department raised certain grievances concern-
ing working conditions with management and Herkal,
with the Charging Party serving as their advocate. On
July 3, Herkal met with these employees and the Charg-
ing Party and addressed their grievances. Immediately
following that session he had a separate meeting with the
Charging Party wherein he admonished her, as a confi-
dential employee, not to act on behalf of the personnel
department clerical employees. Gill took the Charging
Party's role in these matters badly and thereafter with-
held normal courtesies and regular work assignments
from the Charging Party, who was offended and re-
sponded in kind. Their continuing mutual hostility soon
became obvious to Herkal.
The Charging Party and Herkal had a conversation
concerning this difficulty, which occurred on September
13 according to the Charging Party's recollection, while
Herkal recalled that it occurred about a month after the
July 3 meeting. 3 Herkal discussed with the Charging
2 All dates hereinafter refer to 1979 unless otherwise indicated.
s Virtually the only facts about which witnesses disagreed at the hear-
ing appeared in the somewhat varying testimony of the Charging Party
and Herkal. Their versions of events and conversations were essentially
corroborative. I found each to be a straightforward witness. They im-
pressed me as equally honest and willing to testify completely and re-
sponsibly without regard to the consequences to their respective posi-
tions. Generally I find it unnecessary to resolve the minor variations in
their testimony and, where not otherwise noted, credit each as to the spe-
cific recollections of things said and done where the other did not deny
the event. Here I credit the Charging Party because of her specific recol-
lection of the date of the conversation and her ability to connect the date
to that of a document she retained. Herkal's placement of the conversa-
tion, while also credible, was not as certain or specific as that of the
Charging Party.
Party her difficulties with Gill. In the conversation the
Charging Party indicated she was unhappy with her cur-
rent circumstances. Herkal said he would look for a dif-
ferent position for her. He thereafter did look for other
positions for her but did not find a position he felt appro-
priate.
A decertification petition regarding the Union-repre-
sented clerical unit at the facility was filed on August 29.
An election in that unit was conducted by the Board on
September 28, and, following resolution of objections
filed by Respondent, the Union was certified as repre-
sentative of employees on April 3, 1980. The Charging
Party's sister, Diane Soares, was at all relevant times a
member of the clerical unit and a public and active sup-
porter of the Union.4 Between September 28 and Octo-
ber 5, Soares was appointed to the Union's negotiating
committee as was unit member Marva Tyler. Tyler was
a friend of the Charging Party and they had lunch to-
gether on a regular basis. The fact of the union negotia-
tions committee appointments was quickly learned by
Respondent.
Herkal at all times regarded the Charging Party as a
loyal and highly competent employee. At the hearing he
denied any belief that the Charging Party had or would
disclose Respondent's confidential information to union
supporters or other unauthorized individuals. The Charg-
ing Party also denied that she had engaged or would
have engaged in such activity. No evidence was intro-
duced to contradict these assertions. Herkal's executive
colleagues, however, took a contrary view and modified
their patterns of behavior in September so as to prevent
the Charging Party from having access to strategic infor-
mation regarding Respondent's decertification election
campaign in the clerical unit and other labor relations
matters. Herkal credibly testified that his relationship and
influence with Respondent's higher management officials
noticeably slipped as a result of their distrust of the
Charging Party and their dissatisfaction with Herkal for
not sharing their suspicion.
September 28, before the election, the Charging Party
signed her name to a public job posting notice, thereby
applying for a position within the represented clerical
unit. Whatever the reality, higher management believed
that this was an act of disloyalty on the part of the
Charging Party. Management believed that an important
issue in the election campaign was whether the Union-
represented employees would be able to achieve equal
wages and working conditions if they chose to be with-
out union representation. Management perceived the
Charging Party's public application for a "union" job to
be an affirmation by an unrepresented employee in a rel-
atively high position-the Charging Party-that a
"union" job was preferable to her own unrepresented po-
sition. Thus, such a public bid was, in management's
view, a strong attack on their argument that an unrepre-
4 Herkal and the Charging Party disputed whether Soares' role as a
union activist was discussed at the time of the Charging Party's hire as
Herkal's secretary. I find this difference unnecessary to resolve because
Soares' union activities were admittedly known and a factor under con-
sideration at the time Herkal determined to discharge the Charging
Party.
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented employee is as well or better off than a union-rep-
resented one.
The fact that other more senior employees who were
in the bargaining unit also had signed up for the posted
job made it unlikely that the Charging Party would be
selected for the position. This was so because vacancies
were filled consistent with the seniority provisions in the
then expired contract. Management believed that the
Charging Party well knew her bid for the job was unre-
alistic because she had no seniority within the unit as
compared to other job applicants who had signed the
posting before her. Therefore management believed her
purpose was not to obtain the position but rather to un-
dermine management's position in the union campaign.
Almost immediately the Charging Party's action in sign-
ing the posting became known. Both Respondent's Divi-
sion president and its controller immediately came to
Herkal and offered the posting as evidence in confirma-
tion of their suspicions of the Charging Party's disloyalty
and in contravention of Herkal's previous assertions of
confidence in the Charging Party. When this occurred,
Herkal determined finally that the Charging Party must
be dismissed.
The following week, Herkal set in motion the process
of severing the Charging Party's employment. He con-
sulted with counsel and notified his superior of his deci-
sion to terminate the Charging Party. He had her termi-
nation paycheck prepared.
On Friday, October 5, Herkal called the Charging
Party into his office. Herkal told her that, although he
had confidence in her, his colleagues did not. In support
of these suspicions he mentioned the union activities of
both the Charging Party's sister and friend and their po-
sitions on the union negotiating committee. He also men-
tioned the Charging Party's action in signing up for the
"union" job. Herkal asked the Charging Party to resign
but made it clear that if she did not resign she would be
terminated. He also suggested however that Respondent
would record her employment severance as voluntary
and that Respondent would not contest any unemploy-
ment claims asserted by the Charging Party. The conver-
sation was an emotional one for each participant. The
Charging Party and Herkal remained in the office until
after its close of business to allow the Charging Party to
collect herself and leave the premises without confront-
ing other employees while she was in an emotional state.
The Charging Party's employ ended on October 5.
She had not been offered reinstatement as of the date of
the hearing. Respondent introduced uncontradicted evi-
dence showing that no disciplinary action had been taken
as of the date of the hearing against employees who par-
ticipated in the June/July grievance matter or against
employees involved in the decertification campaign and
election.
B. Analysis and Conclusions
1. The activities of the Charging Party
There was no dispute at the hearing that three separate
sets of circumstances described above constituted the
sum total of the activities of the Charging Party which-
although there is dispute as to their relative contribu-
tions-caused her termination. First was the Charging
Party's participation as intermediary for the personnel
department employees in the discussions with manage-
ment concerning working conditions in June and July,
with the resulting strain in her working relationship with
Gill. Second was the relationship by acquaintance and
consanguinity of the Charging Party to active union sup-
porters in the clerical unit during the decertification
campaign. Third was the act of publicly signing up for a
"union" or clerical unit position immediately before the
decertification election.
Without discussing the Charging Party's status as a
confidential employee,5 it is clear and I find that each of
these three types of activity is protected activity. The
Charging Party's participation with other employees for
their benefit is protected concerted activity. Salt River
Valley Water Users' Assn. v. NLRB, 206 F.2d 325 (9th
Cir. 1953). Discrimination against the friend or relative
of a union activist is likewise prohibited by the Act. See,
e.g., Hickman Garment Co., 216 NLRB 801 (1975). At-
tempts to utilize a hiring process established in a collec-
tive-bargaining contract are also protected by the Act.
Anaconda Aluminum Co., 160 NLRB 35 (1966); Slot-
kowski Sausage Co., 242 NLRB 731 (1979).6 Thus all the
activities engaged in by the Charging Party were activi-
ties protected under the Act.
2. Confidential employees and confidential
information-the rights of employees under Section
8(a)(1) and (3) of the Act
a. The rights of a confidential employee
The Charging Party clearly meets the Board's narrow
definition of confidential employees as persons "who
assist and act in a confidential [relationship] to persons
who formulate, determine, and effectuate management
policies in the field of industrial relations." (Emphasis
added.) B. F. Goodrich Co., 115 NLRB 722, 724 (1956).
The parties, based on a complete record on the issue,
stipulated that the Charging Party was such an employee
and I so find.
Respondent argues that the Charging Party, as a confi-
dential employee, is "excluded under the Act and may
not engage in protected activity." In support of its argu-
ment Respondent cites various court decisions. 7 Board
law in this area is contrary and has not changed. My dis-
cretion in this area is best illuminated by the following
recent Board admonition to an administrative law judge:
5 See sec. III,B,2, infra, for a discussion of the confidential status of the
Charging Party and the consequence to her rights under Sec. 8(aXl) and
(3) of the Act.
6 Respondent's cited case, Tabernacle Community Hospital, 233 NLRB
1425 (1977), is distinguishable because no collective-bargaining agreement
existed in that case to give constructive concert to the single employee's
activities. Respondent also notes the Seventh Circuit denied enforcement
of Slotkowski Sausage Ca at 620 F.2d 642 (7th Cir. 1980). As is discussed
in greater detail, infra, I am bound by Board precedent.
7 HCREMC v. NLRB, 627 F.2d 766 (7th Cir. 1980); NLRB v. Wheeling
Electric Co., 444 F.2d 783 (4th Cir. 1971); Peerless of America, Inc v.
NLRB, 484 F.2d 1108 (7th Cir. 1973); NLRB v. North Arkansas Electric
Cooperative, 446 F.2d 602 (8th Cir. 1971).
944
LUCKY STORES
Additionally, we would note that the Administra-
tive Law Judge's finding that confidential employ-
ees do not enjoy protection under the Act, although
consistent with the decisions of several courts of ap-
peals, is, with all respect to those courts of appeals,
inconsistent with current Board law. See Hendricks
County Rural Electric Membership Corporation, 236
NLRB [1616] (1978). It is well settled that it is the
duty of an administrative law judge "to apply estab-
lished Board precedent which the Supreme Court
has not reversed." Iowa Beef Packers, 144 NLRB
615, 616 (1965).8
I have no discretion, even were I to disagree with the
Board doctrine, but to apply current Board law. There-
fore, I find that the Charging Party has no fewer rights
under Section 8 of the Act as a result of her confidential
employee status than any other employee subject to the
Act.
b. Rights of employers to protect the confidentiality of
labor relations material
While rejecting any holding reducing the Section 8
rights of confidential employees because of their status as
confidentials, the Board has addressed the question of
guarding confidential information. The Board recognizes
an employer may have a "legitimate desire to protect the
confidentiality of its labor relations matters from disclo-
sure to others." Jos Schlitz Brewing Co., 211 NLRB 799
(1974). As in Schlitz, such a legitimate interest may justi-
fy terminating an employee with a social or marital rela-
tionship to union adherents if the employer suspects the
employee may "leak" confidential information. This right
to take action against an employee in order to protect
the confidentiality of labor relations material applies not
just to "confidential" employees but to all employees.
Confidential employees are not the only employees who
may have access to confidential labor relations material.
Other employees may have legitimate access to such in-
formation and any employee may improperly seek to
obtain it. Thus, even though the Charging Party under
Board law retains the full protection of Section 8 of the
Act, despite her status as a confidential employee, she
like all employees may have proper action taken against
her if it is done in order to preserve labor relations mate-
rial confidentiality.
c. The Employer's standard of care in protecting labor
relations confidentiality
If an employer may take action to protect the confi-
dentiality of its labor relations material, a question re-
mains: What standard of care is an employer held to in
taking such action? Normally an employer is strictly
liable when it takes action against an employee because
of a good-faith but mistaken belief that the employee has
engaged in misconduct during otherwise protected con-
certed activity. NLRB v. Burnup & Sims, Inc., 379 U.S.
21 (1964). Thus, if the employee has not engaged in the
misconduct, despite the employer's belief, the employer
8 Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979); see also
Peavey Ca, 249 NLRB 853 (1980).
stands liable for its actions. It appears however that, in
the case of suspected destruction of the confidentiality of
labor relations materials, the Board has adopted the phi-
losophy of the Roman apothegm that Caesar's wife
ought to be above suspicion. In Illinois Bell Telephone
Co., 228 NLRB 942 (1977), the Board held not improper
an employer's action against an employee who would
soon have potential access to confidential labor relations
material. The basis of the employer's suspicion was the
fact that the employee's brother was a chief steward and
executive board member of the labor organization repre-
senting a significant number of the employer's employ-
ees. In addressing the question of the danger of the sister
leaking confidential information to her brother, the
Board noted:
[T]he fact that the possibility does exist in a more
than conjectural sense entitles the Employer to pro-
tect himself against it. [228 NLRB 942 fn. 1.]
Thus mere doubt appears sufficient to justify action
against an employee with actual or potential access to
confidential labor relations material. 9
d. Summary
In summary, I reject Respondent's affirmative defense
that the Charging Party as a confidential employee is
exempt from the protections of Section 8(a)(1) and (3) of
the Act. I do accept, however, the proposition that an
employer may take action against an employee because it
suspects that employee may divulge or has divulged con-
fidential labor relations material to unauthorized persons.
Further, I find that such suspicion, to be sufficient, need
only be "more than conjectural."
3. Respondent's motive in terminating the Charging
Party I 0
There is no dispute that the Charging Party's activi-
ties, discussed supra, were the basis of Respondent's deci-
sion to discharge her. The fundamental factual issue at
the hearing was the motive of Respondent in acting on
these activities when it terminated her.
If the Charging Party was fired to punish the Charg-
ing Party because of her protected activities, or to
punish others because of their protected activities, or
both, Respondent has violated the Act. If Respondent
terminated the Charging Party solely because of a more
than conjectural suspicion that she might divulge confi-
9 Were strict liability the test, Respondent here has clearly violated the
Act for there is no evidence indicating that the Charging Party at any
time breached the confidentiality of Respondent's labor relations material
and I specifically find that she did not.
10 Respondent at the hearing argued that the Charging Party voluntar-
ily quit. The evidence indicates without contradiction that she was told
by Herkal to quit or be terminated. I find that she was terminated Her
choice to resign or to be fired was in actuality no choice at all. Respond-
ent also litigated the Charging Party's preparations to enter another pro-
fession, presumably in support of the proposition that she would have
voluntarily left Respondent's employ in any case. The evidence did not
show that the Charging Party had a fixed intention to terminate her em-
ployment with Respondent at any specific time. Any further analysis of
such facts, were it otherwise appropriate, would properly take place in
the compliance stage of a proceeding.
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dential labor relations material, its action was not im-
proper.
a. Whether Respondent terminated the Charging Party
to punish others for their protected activity and/or as
an integral part of an illegal pattern of conduct
The complaint alleges as a single violation the dis-
charge of the Charging Party. Respondent presented un-
disputed testimony that no other employee who engaged
in protected concerted or union activity was terminated
or disciplined. There is therefore no evidence of an ille-
gal pattern of conduct by Respondent in the context of
which the Charging Party's discharge must be judged.
Further, there is no evidence that the Charging Party's
discharge was intended to be or actually was held out to
other employees as punishment for or a warning to those
other employees who engaged in union or protected con-
certed activities. On the contrary there is considerable
credible evidence that Respondent sought to have the
Charging Party quit her employ rather than fire her. It
offered to acquiesce in whatever claims the Charging
Party made with the state unemployment authorities.
Herkal allowed the Charging Party to remain in his
office after her termination until after the close of busi-
ness so that she could make her exit without contacting
other employees. No evidence was presented that other
employees were ever told of the reasons for the Charg-
ing Party's discharge. This evidence and the absence of
any contrary evidence indicate that Respondent made no
effort to publicize the basis for the Charging Party's ter-
mination; rather I find it attempted to keep the matter
confidential." I find therefore that the General Counsel
has not sustained its burden of proof with regard to the
contention that Respondent fired the Charging Party to
discriminate or to chill the protected activities of other
employees.
b. Whether Respondent terminated the Charging Party
because she engaged in protected activity or because of
a suspicion that she would disclose confidential labor
relations material
I have found, supra, that the activities of the Charging
Party which-all parties agree-resulted in her discharge
were protected activities. I have further found that a de-
fense in law exists if an employer terminates an employee
because of a more than conjectural belief that the em-
ployee had or would divulge confidential labor relations
material. I have also found that insufficient evidence
exists to support the General Counsel's allegation that
the Charging Party was terminated in order to punish
others for their protected activities. The question re-
mains, given the admitted foundation facts which caused
the discharge: What was the motive of Respondent in
discharging the Charging Party?
I am convinced that Respondent's agent Herkal termi-
nated the Charging Party because of the suspicions of his
superior and peers regarding the Charging Party's ability
I Herkal also delayed the consummation of the Charging Party's ter-
mination until the decertification election was concluded to avoid any al-
legation that the termination affected the balloting.
to maintain confidentiality. 2 I make this finding and spe-
cifically reject the argument of the General Counsel that
retaliation rather than suspicion was Respondent's
motive for terminating the Charging Party for the fol-
lowing reasons.
(1) Animus
First, there is little or no evidence that Herkal bore
any hostility toward the Charging Party a result of her
protected activities. Counsel for the General Counsel
argues Herkal's remarks to the Charging Party when he
learned of the unrepresented clerical claims, "Boy, this is
really something," demonstrate animus toward protected
activity and the Charging Party as a result thereof. He
also asserts that Herkal's instruction to the Charging
Party to abandon her role as intermediary in the person-
nel department grievance matter and his "misleading
Neilson about his intended course of action" also support
such a finding of animus. This evidence is modest in its
force at best and must be discounted by the passage of
time between the conduct and the Charging Party's ter-
mination.
The General Counsel also asserts that the failure to
transfer the Charging Party rather than terminate her
and the use of a unit employee to temporarily fill in for
the Charging Party after her termination each support a
finding of illegal motive by Respondent. I reject these
contentions. Rather I find that Herkal did in fact look
for possible jobs for the Charging Party but that he did
not find anything available. Further I do not find the
record evidence of the circumstances of the Charging
Party's replacement persuasive of any proposition. Busi-
ness necessity and the fact that Respondent's suspicions
were directed only to the Charging Party make Re-
spondent's use of unit member substitutes in the Charg-
ing Party's former position understandable and not so un-
usual as to raise an inference that the discharge was
tainted.
It is true that'the Charging Party's protected activity
as intermediary for the unrepresented clericals resulted in
Gill's displeasure with her ' 3 and triggered the subse-
quent deterioration in their working relationship. This
circumstance then engendered the expression of unhappi-
ness by the Charging Party to Herkal described supra,
and Herkal's attempts to find her another job within the
organization. At the threshold, I am unable to conclude
that this evidence will support a finding that the se-
quence of events is attributable to discrimination against
the Charging Party because of her protected concerted
activity. This is unnecessary to decide, however, because
I am convinced that, even if true, Respondent would
have terminated the Charging Party even if the events
concerning the unrepresented clericals and Gill had
" I further find that the Charging Party was terminated because
Herkal felt the disapproval of his peers and superior who acted as they
did because they were suspicious of the Charging Party and upset with
Herkal for not sharing that suspicion. The difference between these two
theories is not of consequence. Causa causae est causa causati.
13 There is no evidence that Gill sought the Charging Party's dis-
charge or was involved in the decision to discharge her.
946
LUCKY STORES
never occurred. 4 Thus I find that these earlier events
are not controlling in my determination of the validity of
Respondent's actions in terminating the Charging Party.
Ignoring Gill, who did not put pressure on Herkal to
fire the Charging Party, there is no evidence that Her-
kal's management colleagues, who complained to him of
their lack of confidence in the Charging Party, sought to
discriminate against the Charging Party or any other em-
ployee because of union or other protected concerted ac-
tivities.
(2) Causation
The growing pressure on Herkal from his management
colleagues and his superior, Division President Hoover,
to remove the Charging Party from her confidential po-
sition despite his continuing loyalty to her makes it clear
to me that Herkal would have discharged the Charging
Party because of these pressures irrespective of his own
opinions and suspicions regarding her activities. These
individuals demonstrated by their actions in dealing with
Herkal that they were suspicious of the Charging Party's
probity regarding labor relations matters. When Hoover
learned of the union job sign-up by the Charging Party,
in Herkal's testimony, he "hot footed it" to Herkal's
office, the posting in hand, and admonished Herkal:
"See. I told you so. All this precaution that I took-now
it's been revealed. I was right and you were wrong."
Thus the thrust of Hoover's argument goes to labor rela-
tions confidentiality and not protected or union activity.
This evidence, and the absence of persuasive evidence
tainting the motives of Hoover's and Herkal's other col-
leagues, convinces me that the pressure put on Herkal
was based solely on suspicions concerning labor relations
confidentiality.1 5 Inasmuch as I find peer pressure was
the cause of Herkal's discharging the Charging Party, I
further find she was discharged solely because of the sus-
picions, albeit mistaken but more than conjectural, of
higher management officials that the Charging Party was
divulging or would divulge confidential labor relations
material, and because of the pressure Herkal received
from these agents to remove her from access to such ma-
terial. I also find that there is insufficient evidence to
support a finding that the Charging Party was fired in
whole or in part for the purpose of discriminating against
her because of her protected or union activities or the
protected or union activities of others.
"4 Even assuming that the General Counsel established a prima facie
case that these earlier activities would have caused the Charging Party's
discharge, I find that Respondent has met its own burden of proof by
showing that the termination would have occurred in any case because of
later events. This finding frees Respondent from any liability for the as-
sumed wrongful prior circumstances. Wright Line, 251 NLRB 1083
(1980).
is Based on this evidence, I reject the General Counsel's argument
that the timing of the discharge supports a retaliation theory. Rather I
find the timing supports the admitted proposition that the sign-up on the
union posting was "the final straw." The question of motive, however, is
not resolved by the timing of events here.
I therefore find that Respondent did not violate the
Act when it terminated the Charging Party. Accordingly
I shall recommend dismissal of the complaint.
4. Summary and conclusion
I have found that the Charging Party is a confidential
employee but I have rejected Respondent's contention
that this in any way diminishes her rights under Section
8(a)(l) and (3) of the Act. I have also found that the
Charging Party was involved in three circumstances: (1)
She acted as an advocate for certain unrepresented em-
ployees in their attempts to improve their working con-
ditions; (2) she was friends with and the sister of employ-
ees of Respondent who were active in support of the
Union; and (3) she publicly signed a job posting for a job
in the Union-represented unit under contractual rules. I
found in each of these circumstances that the Charging
Party's acts and relationships were protected under the
Act and that Respondent could not discriminate against
the Charging Party as a result thereof. I have found that,
as a result of the three circumstances described above,
Respondent's agents formed a mistaken but more than
conjectural belief that the Charging Party was or would
improperly transmit Respondent's confidential labor rela-
tions material to unauthorized individuals. As a result of
this mistaken belief Respondent terminated the Charging
Party. I find that Respondent's belief as described above
is a legitimate business reason for terminating the Charg-
ing Party. I have found insufficient evidence to prove
Respondent terminated the Charging Party for any other
reason. I find therefore that the Act has not been violat-
ed. Accordingly, I shall therefore dismiss the complaint
in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate the Act by discharging
the Charging Party.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 16
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
I" 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.
947