Roadway Express

National Labor Relations Board - Board Decisions

Aug 27, 1984

271 N.L.R.B. 1238 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadway Express, Inc. and Local 560, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Richard
Erbacher. Cases 2-CA-19359 and 2-CA-19422
27 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 1 March 1984 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting brief and an answer to the Re-
spondent's exceptions, and the Respondent filed a
brief in reply to the General Counsel's cross-excep-
tions.
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 briefs1 and
has decided to affirm the judge's rulings, findings,
and conclusions only to the extent consistent here-
with.
The judge found that the Respondent violated
Section 8(a)(1) and (3)2 of the Act by discharging
employee Richard Erbacher on 15 December 1982.
We find merit in the Respondent's exceptions3 to
these findings.
The facts, as more fully set forth by the judge,
are as follows. The Respondent and the Union
have been parties to successive collective-bargain-
ing agreements for many years. The bargaining unit
consists of drivers and dockmen. Employee Er-
bacher worked essentially as a porter, a position
which was not part of the bargaining unit. Prior to
November 1982, 4 Erbacher refused requests by the
bargaining unit's shop steward to join the Union.
In November, Erbacher decided to join the
Union and signed a union authorization card.
Thereafter, about 29 November, Union Business
Agent Jaronko informed the Respondent's terminal
manager, Ward, that the Union wanted to repre-
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 Although the judge found at one point that Erbacher's discharge vio-
lated Sec. 8(a)(I) of the Act, it is clear from his decision as a whole, in-
cluding his conclusions of law and recommended Order, that he found
the discharge violated Sec. 8(aXI) and (3) of the Act.
I The judge found, and we agree, that the Respondent did not violate
Sec. 8(a)(l) and (3) of the Act by discharging Erbacher because he joined
the Union. The General Counsel excepts to the judge's failure to find that
the Respondent's discharge of Erbacher was motivated by his assistance
to the Union in its claim that nonunit employees were performing unit
work. We find no merit to the General Counsel's exceptions.
4All dates refer to 1982 unless otherwise noted.
271 NLRB No. 198
sent Erbacher. Ward replied that he would get
back to Jaronko.
On 10 December, the Respondent and the Union
held a meeting to discuss a variety of problems.
The Union again requested recognition as Er-
bacher's representative. The Respondent refused on
the basis that Erbacher would constitute a one-
person unit. The subject was not further pursued.
The Union then claimed that the Respondent was
assigning bargaining unit work to nonbargaining
unit employees, including Erbacher. The Union
contended that nonbargaining unit employees were
receiving freight at the dock and in support of this
claim presented the Respondent with copies of bills
of lading signed by nonbargaining unit employees, 5
including Erbacher. Since bills of lading are signed
by the employee who receives the freight, the doc-
uments supported the Union's claim, and the Re-
spondent agreed to have the work done in the
future by bargaining unit employees. 6
For some time prior to this 10 December meet-
ing, the Union had expressed to the Respondent its
concern that nonbargaining unit employees had
been receiving freight at the dock. However, ac-
cording to the shop steward, the issue had never
been pressed before with the Respondent since the
Union did not have proof until obtaining copies of
the bills of lading.
After the conclusion of the 10 December meet-
ing, the Union's shop steward, when asked by Ter-
minal Manager Ward how he had obtained the
copies of the bills of lading, stated "that is for you
to find out." At that time, the Respondent kept its
copies in unlocked files in its office in the terminal.
Ward suspected that Erbacher had provided the
copies to the Union since he was the only employ-
ee, other than supervisors and the clerical staff,
who had access to the office where the documents
were kept. On 14 December, Ward confronted Er-
bacher, and Erbacher admitted taking the docu-
ments from the Respondent's files, making copies,
and giving them to the Union. On 15 December,
the Respondent discharged Erbacher. At that time
Ward told Erbacher that he was discharged be-
cause of his unauthorized use and distribution of
company documents. At the hearing, Ward assert-
ed that it is company policy to prohibit disclosure
s A bill of lading is essentially a contract between a shipper and a car-
rier and is printed on a standard form with four carbon copies. It lists the
shipper, the destination, a description of the goods, and the charge. It is
signed by the shipper and the employee of the Respondent who accepted
the goods. Regulations of the Interstate Commerce Commission require
that copies of bills of lading be retained for 3 years.
6 The Union also claimed at this meeting that nonbargaining unit em-
ployees, including Erbacher, were moving trucks on Saturday. Erbacher
also furnished information to the Union supporting this claim. This dis-
pute similarly was settled at the meeting.
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ROADWAY EXPRESS
of such information, but he conceded that this
policy is not in writing.
The judge found that Erbacher was involved in
protected concerted activity when he took the bills
of lading from the Respondent's files and furnished
copies to the Union and that, consequently, the Re-
spondent's discharge of him for this conduct was
unlawful. The judge found that Erbacher's action
was concerted since it was taken, not in further-
ance of an individual claim for his own benefit, but
rather together with the shop steward in an at-
tempt to enforce the work preservation clause of
the Union's collective-bargaining agreement. The
judge also found that Erbacher's actions were pro-
tected. In so doing, the judge noted that the Re-
spondent did not have a company rule, known to
employees, prohibiting the dissemination of the
bills of lading and that the documents were kept in
unlocked files and were not marked as being confi-
dential. In addition, he relied on the absence of evi-
dence showing that Erbacher was aware that the
Interstate Commerce Act prohibited the disclosure
of bills of lading and the fact that neither Erbacher
nor the Union disclosed the information to outside
persons. Finally, he found that the bills of lading
clearly were relevant to the Union's claim that the
Respondent was breaching the contract.
We do not agree with the judge's finding that
Erbacher was involved in protected activity when
he took the bills of lading from the Respondent's
files and made copies of them. ? Thus, the bills of
lading were the Respondent's private business
records which were kept in files in an office with
limited access, and Terminal Manager Ward testi-
fied that he suspected Erbacher of furnishing the
Union with copies of the bills of lading because Er-
bacher was the only nonsupervisory, nonclerical
employee who had access to the office in which
the files were maintained. In addition, the record
clearly establishes that the bills of lading were not
obtained by Erbacher "in the normal course of
work activity and association."8 Rather, Erbacher
went beyond the normal scope of his employment
and took the bills of lading from the Respondent's
files and copied them for reasons other than the
Respondent's business purposes and without any
approval or authorization by the Respondent. Er-
bacher's action certainly is not of the type which
could be equated with that of employees who use
information openly available at work.9 Thus, it is
I In view of our conclusion that Erbacher's conduct was not protected
under the Act, we find it unnecessary to pass on the judge's finding that
his conduct constituted concerted activity within the meaning of the Act.
8 Ridgely Mfg. Co., 207 NLRB 193, 196-197 (1973).
9 See, e.g., W.R. Grace Co., 240 NLRB 813, 820 (1979), and Ridgely
Mfg. Co., supra.
clear that Erbacher surreptitiously resorted to the
Respondent's business records for information.
Such conduct is not protected under the Act.1 0
In finding that Erbacher's conduct was protect-
ed, the judge emphasized that the Respondent did
not have a rule, known to the employees, which
prohibited the dissemination of the information in-
volved. The presence or absence of a specific com-
pany rule is a factor in deciding whether an em-
ployee's conduct is protected by the Act, but it is
not the controlling factor. Furthermore, the ab-
sence of a written rule is of little significance here,
where the documents taken were clearly the Re-
spondent's private business records and were taken
from files to which Erbacher had no proper access.
In such circumstances, an employer, regardless of
whether it has a written rule, has a right to expect
its employees not to go into its files and to take its
business records for whatever purposes they wish,
and it is not unreasonable for an employer to con-
sider such conduct as justifying discipline.1
As noted above, the judge also relied on the
facts that neither Erbacher nor the shop steward
were shown to be aware that the Interstate Com-
merce Act prohibited the disclosure of information
contained in the bills of lading and that neither Er-
bacher nor the Union disclosed the information
contained in the bills of lading to "outside per-
sons." We reject the judge's reliance on these fac-
tors. Thus, to the extent that the judge suggests
that Erbacher's action was taken in a good-faith at-
tempt to assist the Union, it does not follow that
the manner in which he obtained the information
was protected. Nor, contrary to the judge, do we
conclude that the Respondent was required to
show that it suffered actual commercial harm as a
result of Erbacher's conduct before it could act on
its legitimate interest in protecting its business
records from unauthorized or surreptitious removal
"' Bullock's, 251 NLRB 425, 425-426 (1980): W.R. Grace Co., supra;
Ridgely Mjg. Co., supra.
" To the extent the judge relied on Ridgely Mfg. Co., his reliance is
misplaced. The judge stated that in Ridgely the Board held that whenever
an employee seeks to obtain information from an employer for use in an
organizing campaign the employee's activity is concerted and protected.
However, the Board in that case also clearly stated that employees, while
free to use information which they obtain in the "course of normal work
activity and association," are not entitled to an employer's private
records. Thus, in Ridgely Mfg., while the Board held that an employee
was involved in protected activity when he memorized employees' names
and addresses from timecards which were openly available for all em-
ployees to see, it also stated that the employee would have forfeited the
protection of the Act if he had surreptitiously obtained the same informa-
tion from the employer's private or confidential records.
Texas Instruments v. NLRB, 637 F.2d 822 (Ist Cir. 1981), denying enf
to 247 NLRB 253 (1980), and International Business Machines, 265 NLRB
638 (1982), on which the judge relied, also are inapposite. Neither of
these cases involved the situation where an employee resorted to an em-
ployer's files and removed business records.
Chairman Dotson and Member Hunter find it unnecessary to express
their views with respect to the Board's decision in Texas Instruments
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and copying by its employees. Similarly, we cannot
agree with the judge's apparent suggestion that the
fact that the information contained in the bills of
lading was relevant to the Union's claim, that the
Respondent was improperly assigning unit work
justifies the manner in which Erbacher obtained
the documents.
Thus, based on all the foregoing, we conclude
that Erbacher's conduct in removing the bills of
lading from the Respondent's files and making
copies of them does not constitute activity which is
protected under the Act. Accordingly, we find that
the Respondent's termination of Erbacher for this
conduct did not violate Section 8(a)(1) and (3) of
the Act. 1'2 We therefore shall dismiss these por-
tions of the complaint.
ORDER
The portions of the complaint alleging that the
Respondent violated Section 8(a)(1) and (3) of the
Act by its discharge of employee Erbacher are dis-
missed.
IT IS FURTHER ORDERED that the portion of the
complaint alleging that the Respondent violated
Section 8(a)(1) of the Act by taking photographs of
the picketing by striking employees is dismissed.
Insofar as the complaint alleges that the Respond-
ent violated Section 8(a)(1) of the Act by threaten-
ing on 20 December 1982 to suspend striking em-
ployees, jurisdiction is retained for the limited pur-
pose of entertaining an appropriate and timely
motion for further consideration upon a proper
showing that either (a) the dispute has not with
reasonable promptness after the issuance of this
Decision and Order either been resolved by amica-
ble settlement in the grievance procedure or sub-
mitted promptly to arbitration, or (b) the grievance
or arbitration procedures have not been fair and
regular or have reached a result which is repug-
nant to the Act.
12 In his decision, the judge does not mention that Erbacher also pro-
vided the Union with copies of invoices for work he performed on Satur-
days for the Respondent as an "independent vendor." These documents
were not removed from the Respondent's files and were properly in Er-
bacher's possession. We find it unnecessary to pass on whether Er-
bacher's conduct in this regard was protected under the Act since it is
clear that the Respondent did not assert that Erbacher was discharged
for such conduct and that the record does not show that the Respondent
relied on such conduct in discharging Erbacher.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge.
These cases were heard by me in New York, New York,
on October 5 and 6, 1983. The charge in Case 2-CA-
19359 was filed by the Union on January 10, 1983, and
the charge in Case 2-CA-19422 was filed by Richard
Erbacher on February 4, 1983. On February 18, 1983,
the Regional Director for Region 2 issued a consolidated
complaint.
In essence, the consolidated complaint alleges
I. That on December 15, 1982, the Respondent dis-
charged its employee Richard Erbacher because he
joined, supported, or assisted the Union.
2. That on December 20, 1982, the Respondent
warned various of its employees of possible discipline be-
cause they engaged in a work stoppage.
3. That on December 20, 1982, the Respondent, by
taking photographs of the striking employees, engaged in
unlawful surveillance.
The Respondent contends as follows
I. It denies that it discharged Erbacher because he
joined the Union and asserts that he was discharged be-
cause he furnished to the Union copies of bills of lading
and freight bills which are asserted to be confidential
documents. In this regard these documents were present-
ed to the Company by the Union at a meeting on De-
cember 10, 1982, as evidence of the Union's claim that
certain nonunit employees were doing bargaining unit
work contrary to the provisions of article 3, section 4 of
the collective-bargaining agreement.
2. The Respondent asserts that the Union sought rec-
ognition as the representative of Erbacher as a one-man
unit and that Erbacher, on behalf of the Union, engaged
in picketing for that purpose on December 19 and 20,
1982. The Respondent asserts that when the other em-
ployees, who are part of the bargaining unit encom-
passed by the contract, honored the picket line they
were engaged in unprotected activity because: (a) the
picketing was for recognition of a one-man unit, and (b)
the work stoppage was in breach of the contract's no-
strike provisions.
3. The Respondent, while admitting that it took photo-
graphs of the strikers on December 20, asserts that this
was noncoercive and was necessary in order to gather
evidence in the event it needed to commence legal pro-
ceedings to enjoin the strike.
4. With respect to the alleged threats of discipline
against the strikers, the Respondent asserts that the
Board should defer this issue to arbitration under Collyer
Insulated Wire, 192 NLRB 837 (1971).
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses and
after considering the briefs filed, I make the following
FINDINGS OF FACT
A. Jurisdiction
Roadway Express is an Ohio corporation with a termi-
nal located in Nanuet, New York. It is engaged in the
interstate transportation of freight and commodities. An-
nually the Respondent has gross revenues exceeding
$50,000 for the transportation of freight from New York
to firms located outside the State of New York. It there-
fore is concluded that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1240
ROADWAY EXPRESS
It also is agreed by the parties that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
B. The Alleged Unfair Labor Practices
For many years the Company and the Union have
been parties to successive labor agreements. At Nanuet,
New York, the bargaining unit consists of drivers and
dockmen. Erbacher, who essentially was employed as a
porter, was not part of that bargaining unit. He was em-
ployed by the Company since 1978 until December 15,
1982, when he was discharged.
The collective-bargaining agreement involved is the
National Master Freight Agreement to which the Com-
pany is a party. The most recent agreement runs from
March 1, 1982, through March 31, 1985.
As noted above, Erbacher was never a member of the
bargaining unit and had, prior to November 1982, re-
fused requests by the shop steward to join the Union. By
way of background, Erbacher testified, without contra-
diction, that in the summer of 1981, he was told by Ter-
minal Manager George Ward, that he (Erbacher) was so-
cializing too much with the drivers, that the Union was
the enemy, and that there were things said in the office
that Ward did not want Erbacher repeating to the
Union's members.
In November 1982, Erbacher decided that he wanted
to join the Union. He therefore signed a union card and
gave it to shop steward, William Zurheide. Soon thereaf-
ter he went on vacation (to Florida), and did not return
to work until December 1, 1982. About November 29
Ward had a telephone conversation with Union Agent
Stanley Jaronko, wherein the latter informed Ward, inter
alia, that Erbacher had signed a union card. Jaronko
stated that the Union wanted representation on Er-
bacher's behalf or there would be a strike. Ward replied
that he knew nothing about this and would get back to
Jaronko. Erbacher testified that, after his return from va-
cation, Ward's general attitude toward him cooled in the
sense that Ward was more formal towards him, and
stopped using Erbacher to run personal errands for him.
There is, however, no other evidence of animus toward
Erbacher because of his membership in the Union.
On December 10, 1983, a meeting was held at the
Union's office. Attending for the Union were Jaronko
and Zurheide. In attendance for the Company were
Ward and a Hassler, who is a labor-relations representa-
tive. The meeting was set up to discuss a variety of prob-
lems, none of which had reached the stage of formal
grievances. Erbacher was present at the Union's office
but did not attend the meeting.
At the opening of the meeting, the Union requested
recognition as Erbacher's representative. In response,
Hassler stated that the Company was not going to recog-
nize the Union for a one-man unit.' This subject was
then dropped and the parties proceeded to other matters.
The Union next made the claim that the Company had
been assigning nonbargaining unit employees (including
I Under Board law, a company need not recognize or bargain with a
union in a one-man unit and the Board will not hold an election in a one-
man unit. Foreign Car Center, 129 NLRB 319 (1960).
Erbacher), to do bargaining unit work. 2 In this respect,
the Union asserted (I) that nonbargaining-unit employees
were receiving freight at the dock; and (2) that they
were moving trucks in the yard on Saturday. In support
of its claims regarding the receipt of freight, the Union
presented the Company with copies of bills of lading
which were signed by nonbargaining unit employees, in-
cluding Erbacher. As the person who receives the
freight is the one who signs the bill of lading, these were
shown as proof of the Union's claim. For its part, the
Company agreed to have the work done, to the extent
possible, by bargaining unit employees. Also the dispute
involving the Saturday work was similarly settled and
the shop steward was awarded a day's pay.
After the meeting on December 10 concluded, Ward
asked Zurheide where he had obtained the bills of
lading. Zurheide responded by saying, "That is for you
to find out."
With respect to the above, the record shows that
before December 10 there had been discussions between
Zurheide and Ward regarding the contention that non-
bargaining unit employees were receiving freight. Ac-
cording to Zurheide, he had never previously pressed
this issue because he did not have proof until obtaining
copies of the bills of lading. In this regard, a bill of
lading, in essence, is a contract between the shipper and
the carrier and is filled out on a standard form which has
four carbon copies. The bill of lading lists the shipper,
the destination, a description of the goods, and the
charge. It is signed by the shipper and the employee of
the Respondent who physically receives the goods. The
charges to the shipper are regulated by tariffs established
by the Interstate Commerce Commission. Copies of bills
of ladings and another document called a freight bill are,
pursuant to law, required to be preserved for a period of
3 years and are retained at Respondent's terminal in un-
locked files kept in the office.
Following the meeting of December 10, Ward suspect-
ed that Erbacher was the person who had turned over
copies of the documents to the Union, as Erbacher had
access to the office which was not accessible to the other
employees. He credibly testified that on December 14 he
confronted Erbacher about this, and Erbacher admitted
that this was so.3 He also asked Erbacher why he
wanted to join the Union. According to Ward, based on
Erbacher's admission concerning the documents, he rec-
ommended to his superior that Erbacher be discharged.
Regarding his decision, Ward testified that his concern
was not with Erbacher having taken the Company's
copy of the bills of lading, but rather that Erbacher had
furnished copies to the Union. In this respect, Ward as-
serted that bills of lading and freight bills are confidential
a Art. 3, sec. 4 of the contract reads:
The Employers agree to respect the jurisdictional rules of the Union
and shall not divert or require their employees or persons other than
the employees in the bargaining units here involved, to perform
work which is recognized as the work of the employees in said units.
3 Although Zurheide and Erbacher denied that the latter had turned
over copies of these documents to the Union, I do not credit this asser-
tion. Rather, based on the record as a whole, including demeanor consid-
erations, I conclude that Erbacher, at Zurheide's request, did make copies
of the documents and did turn them over to the Union.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
documents because they disclose the names of customers
and the rates (including discounts), that are charged to
its customers. The Company asserts that the disclosure of
such information by employees to persons other than the
shipper or consignee is unlawful and punishable by fine if
such information "may be used to the detriment of the
shipper or consignee or may disclose improperly to a
competitor the business transaction of the shipper or con-
signee." 4 Ward also asserts that it is company policy to
preclude disclosure of such information. He concedes,
however, that this policy is not in writing and there is no
evidence to show that it was known to any of its em-
ployees. There also is no evidence to show that either
Erbacher or Zurheide were aware of the provisions of
the Interstate Commerce Act, or that either disclosed the
information to any person who could use it to the detri-
ment of either the Respondent or its customers. In short,
I find the Respondent's argument regarding a breach of
confidentiality to be unpersuasive. 5
On December 15 Ward discharged Erbacher. At the
exit interview, Erbacher was told that he was being dis-
charged because of his unauthorized use and distribution
of company documents. When Zurheide, at a later point,
asked Ward why Erbacher had been fired he was told
that Erbacher had given the documents to the Union.
Zurheide replied that this was not so and that he (Zur-
heide) had obtained copies of the documents from the
garbage pails where customers disposed of their extra
copies.
On the evening of December 19, Erbacher com-
menced picketing, with signs prepared by the Union.
One signed read, "Unfair Labor Practices," and the
other read, "Local 560 Demands Recognition."
As a result of the picketing, the other employees, who
were represented by the Union, did not go to work on
December 20. On the morning of December 20 Coombs,
at Ward's direction, went outside to take photographs of
the picketing and striking employees. The Polaroid pic-
tures were marked on the back with the times the pic-
tures were taken and listed the names of the strikers. At
one point during the day, Ward told the strikers and the
shop steward that the work stoppage was illegal. He also
told them that they could be suspended pursuant to arti-
cle 8 of the contract. (Art. 8 sets forth the grievance pro-
cedure and the no-strike provisions.) About 3 p.m., Ward
attempted to hand copies of the telegrams to the strikers
but these were rejected by all except Zurheide. The tele-
grams were then sent to the employees' homes and in-
formed them that their strike activity could result in
their being disciplined, "including suspension from em-
ployment up to and including thirty days." Later in the
day, another set of telegrams was sent to the employees
informing them that they were being suspended for 30
days on a rotating basis. About 4 p.m. December 20, the
Union decided to halt the picketing and to have the em-
ployees return to work. This was, in fact, done and to
4Interstate Commerce Act, 49 U.S.C. § 11910 (a)(l).
I The Respondent does not contend that Erbacher was making unau-
thorized use of the photocopy machine. In fact, the testimony reveals
that it was not uncommon for employees to use this machine for their
own purposes.
date none of the striking employees have received any
disciplinary action on account of the work stoppage.
Analysis
It is my opinion that the Respondent did not discharge
Erbacher because he joined the Union. Rather, it is con-
cluded that Ward truthfully testified that his decision to
discharge Erbacher was based on his belief that he had
furnished copies of bills of lading and freight bills to the
Union. This conclusion does not, however, mean that the
Company had acted lawfully. For in establishing this de-
fense, it has also established that its reason for discharg-
ing Erbacher was illegal under Section 8(aXl1) of the
Act.
The evidence shows that for some period of time prior
to December 10, the Union, by its shop steward, had ex-
pressed to the Company its belief that the Respondent
was using nonbargaining-unit employees to perform bar-
gaining-unit work, contrary to the provisions of the col-
lective-bargaining agreement. The evidence also shows
that Erbacher assisted the Union in proving its claim by
photocopying bills of lading and furnishing them to the
Union. As copies of the bills of lading would demon-
strate the validity of the Union's contention on this
point, it seems to me that Erbacher's assistance would
not be in furtherance of any individual claim on his own
behalf, but rather constitutes concerted activity as he
was acting together with shop steward Zurheide in the
latter's attempt to enforce the preservation of work pro-
visions of the collective-bargaining agreement. NLRB v.
Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221 (8th Cir.
1970); NLRB v. Interboro Contractors, 388 F.2d 445 (2d
Cir. 1967). (As noted above I have credited Ward's testi-
mony to the effect that Erbacher admitted that he had
turned over copies of the documents to the Union.)
While it might have been preferable for the Union to
have directly asked the Company to produce these docu-
ments in support of its complaints, I cannot say that Er-
bacher's actions in copying and furnishing them to the
Union was unprotected by Section 7 of the Act.
In Ridgely Mfg. Co., 207 NLRB 193 (1973), the Board
held that when an employee seeks to obtain information
from his employer for use by the union in organizing ac-
tivity (a list of employee names and addresses from time
cards), the employee's activity is concerted and protect-
ed by the Act. The administrative law judge stated at
196:
Although the purpose of this activity was for use
by the Union in organizing and was clearly concert-
ed activity, the question remains whether it was
also protected activity. The applicable rule of
thumb seems to be that employees are entitled to
use for self-organizational purposes information and
knowledge which comes to their attention in the
normal course of work activity and association but
are not entitled to their Employer's private or confi-
dential records. Thus, Respondent could rightly
deny Durban the list of its employees and their ad-
dresses and he would not be protected in obtaining
such list from Respondent's records surreptitiously.
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ROADWAY EXPRESS
He was, however, protected in his actions of re-
questing such list from the top official in charge of
the plant.
Thus, protection for such activity depends on the
question of whether timecards located by the time-
clock fall into the category of private or confiden-
tial records of the Employer or constitute informa-
tion available to all employees in the course of their
normal work relationship. I place them in the latter
category as a source through which any employee
may learn the names of his fellow employees as
rightfully as through personal in-plant contact. Ac-
cordingly, I conclude that when he was memorizing
the names of fellow employees from the timecards
for the purpose of contacting them concerning
union representation he was engaged in protected
activity. Durban's discharge, because of his stated
intent to obtain the names from this source for the
stated purpose, was therefore, violative of Section
8(aX3) and (I) of the Act.
In Texas Instruments, 247 NLRB 253 (1980), the Board
held that the Company had unlawfully discharged sever-
al employees who had violated a company rule by circu-
lating information contained in confidential wage surveys
despite warnings not to do so. However, the First Cir-
cuit Court of Appeals, at 637 F.2d 822 (1981), reversed
the Board's decision. The court noted that the informa-
tion (I) was not of a type which would have come to the
attention of the employees in the normal course of their
work; (2) that the report which cost $10,000 to prepare,
was intended solely for internal use by the Company and
was stamped "Strictly Private"; and (3) the Company
had a rule known to the employees that required dis-
charge for the deliberate disclosure to unauthorized per-
sons of material marked "strictly private." The court
stated at 832:
As we have already observed, supra, not every
activity in furtherance of self-organization is pro-
tected under section 7 of the NLRA. Even were we
to assume-and we do not so hold-that the need
for proprietary information might in pressing cir-
cumstances support a right on behalf of organizing
employees to use that information, the facts of this
case do not reveal any such circumstances.
To support finding an employee right in the
present case that would trigger the protection of the
NLRA, the Board argues that the discharged em-
ployees did not steal or misappropriate TI's confi-
dential information. The presence or absence of su-
breption and misappropriation is certainly a signifi-
cant factor in deciding whether employee conduct
is a protected exercise of a section 7 right. Howev-
er, this factor by itself is, at most, one element
among many. Furthermore, the conduct at issue
was by no means wholly innocent. The manner in
which the employees received TI's wage survey
report certainly suggested that the anonymous
sender had obtained it through questionable means
or was circulating it in breach of confidence. Nev-
ertheless, they reproduced parts of the report in
their organizing leaflet, being careful to cut from
each page that they used the label "Strictly Pri-
vate."
Finally the Board claims that the disclosure of
the confidential material did not threaten any com-
mercial harm to the Company. Such a consideration
would be more appropriate to an inquiry into the
employer's business justifications for its termination
of the employees-a portion of the Jeanette inquiry
which for present purposes we do not reach, see
infra. Even, however, if commercial harm were rel-
evant to the existence of an employee right under
Section 7, its presence or absence would be out one
factor; mere absence of resulting harm would not
by itself demonstrate that the activity was protect-
ed.
Our examination reveals no basis sufficient to
support a finding that the discharged employees'
unauthorized and knowing use, in an organizing
leaflet, of a confidential wage survey prepared by
TI management for its own purposes, was the exer-
cise of a right guaranteed by section 7 of the
NLRA. As the employees' conduct was therefore
not "protected activity," we need not go on to the
other Jeanette criteria. That is, we need not review
the Board's balancing, in light of the Act and its
policies, of TI's proffered justifications for applica-
tion of the rule on these facts, against a supposed in-
vasion of employee rights. No such invasion of em-
ployee rights existed. Applied to the materials and
to the conduct in question, the company security
rule was valid.
In International Business Machines Corp., 265 NLRB
638 (1982), the Board held that the company did not vio-
late the Act by its discharge of an employee who know-
ingly breached a confidentiality rule by distributirg cer-
tain confidential wage data. In distinguishing the case
from Jeanette Corp. v. NLRB, 532 F.2d 916 (3d Cir.
1976), the Board concluded that the company had "le-
gitimate business justifications for its policy," that the
employee had not obtained the information in the normal
course of his work activity, and that he "knew that the
documents he received had been classified . . . as confi-
dential and he was aware of Respondent's rule prohibit-
ing dissemination of such material."
The present case, to my mind, is distinguishable from
IBM, supra, and Texas Instruments, supra. Unlike those
cases, the Respondent herein did not have any company
rule, known to employees, which prohibited the dissemi-
nation of the information involved. The documents were,
in fact, kept in unlocked files in the office and were not
marked or otherwise designated as being confidential.
While the Interstate Commerce Act precludes dissemina-
tion of such documents to persons outside the Company,
neither Erbacher nor Zurheide was shown to be specifi-
cally aware of the provisions of that law and in any
event, neither disclosed the information to outside per-
sons who could have used the information to the detri-
ment of either the Respondent or its customers. At the
same time, it is obvious that copies of the bills of lading
were clearly relevant to the Union's complaint that the
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company was breaching the collective-bargaining agree-
ment by having nonunit employees do bargaining unit
work. Indeed, when the documents where shown to the
Company on December 10, this proved the Union's con-
tention and the dispute was settled on the Union's terms.
In view of the above, it is my opinion that when Er-
bacher assisted the Union in its attempt to enforce its
collective-bargaining agreement, by furnishing to the
Union documents relevant to the Union's claim, that he
was engaged in protected concerted activity within the
meaning of Section 7 of the Act. As it has not been
shown that the Company had any rule known to its em-
ployees precluding such activity, it is concluded that the
Respondent violated Section 8(aX)( and (3) when it dis-
charged Erbacher.
With respect to the allegation relating to the threat-
ened suspension of the strikers, the Employer asserts that
this matter should be deferred to the grievance-arbitra-
tion procedures set forth in the collective-bargaining
agreement. Subsequent to the close of the hearing, the
Board issued its decision in United Technologies Corp.,
268 NLRB 557 (1984), where in it overruled General
American Transportation Corp., 228 NLRB 808 (1977).
The Board concluded that it would henceforth apply its
deferral policy enunciated in Collyer Insulated Wire, 192
NLRB 837 (1971), to cases filed by Unions, even where
they involved allegations of Section 8(a)(1) and (3). Ac-
cordingly, I requested that the parties advise me as to
what effect, if any, the Board's decision in United Tech-
nologies would have on the present case.
On February 8, 1984, the Respondent reiterated its po-
sition regarding the deferral issue and, on February 10,
the General Counsel advised me that in his view this al-
legation should be deferred as requested by the Respond-
ent. As it is my opinion that the allegation in question is
arbitrable under the terms of the collective-bargaining
agreement I shall recommend that this allegation of the
complaint be deferred. This conclusion is, however, con-
ditioned on Respondent waiving any timeliness provi-
sions of the grievance-arbitration clauses of the collec-
tive-bargaining agreement so that the Union's grievance
may be processed.
There finally remains for consideration the allegation
of surveillance. In this regard the evidence shows that,
on the morning of December 20, Coombs, at Ward's di-
rection, took Polaroid photographs of the picketing by
Erbacher and of the strikers. It appears that the reason
the photographs were taken was to gather evidence for
the purpose of seeking injunctive relief based on the
Company's belief that the no-strike clause of the agree-
ment was being breached. Indeed, at one point, Ward
told Zurheide and the strikers that the work stoppage
was, in his opinion, illegal under article 8 of the contract.
Also, the pictures were marked on the back with the
times taken and the persons shown, this indicating a pur-
pose of evidence gathering. As the Company had a co-
lorable basis for seeking injunctive relief under Boys Mar-
kets Inc. v. Retail Clerks Local 770, 398 U.S. 235 (1970),
and as the evidence does not show the employees to
have been coerced, it is my conclusion that this photo-
graphing activity on December 20 was not unlawful. See
Berton Kirshner Inc., 209 NLRB 1081 (1974). Cf. Electri-
Flex Co., 238 NLRB 713, 1718 (1978).
CONCLUSIONS OF LAW
1. Roadway Express, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 560, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Richard Erbacher on December 15,
1982, for engaging in protected concerted activity, the
Respondent has violated Section 8(a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Except to the extent found above, the other allega-
tions of the complaint are dismissed.
THE REMEDY
Having found that the Respondent has violated the
Act in certain respects, I shall recommend that it cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
With respect to Richard Erbacher, it is recommended
that the Respondent offer him full and immediate rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed, and to make him whole for any loss of
earnings he may have suffered by reason of the discrimi-
nation practiced against him, such earnings to be com-
puted in accordance with the formula set forth in F. W.
Woolworth Co., 90 NLRB 298 (1950), with interest there-
on to be computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1982).
Additionally, in accordance with Sterling Sugars, 261
NLRB 472 (1982), I shall recommend that the Respond-
ent expunge from its files any reference to the discharge
of Erbacher and to notify him, in writing, that this has
been done and that evidence of same will not be used as
a basis for future personnel actions against him.
[Recommended Order omitted from publication.]
1244