Super One Foods, #601

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 462 (N.L.R.B. 1989)

462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brookshire Grocery Company , d/b/a Super One
Foods , #6011 and Mark L. Moise. Case 15-
CA-9783.
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, CRACRAFT, AND HIGGINS
On March 18, 1986, Administrative Law Judge
J. Pargen Robertson issued the attached decision.
The General Counsel filed limited exceptions and a
supporting brief. The Respondent filed cross-excep-
tions, a supporting brief, and an answering brief.
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,2 findings,3
and conclusions and to adopt the recommended
Order4 only to the extent consistent with this Deci-
sion and Order.
The judge found, and we affirm, that the Re-
spondent violated the Act by prohibiting its em-
ployees from discussing their wages under threat of
discharge. 5 He further found that the interrogation
of several employees and the discharge of the
Charging Party did not violate Section 8(a)(1). For
the reasons set forth below, we disagree.
The facts in brief are as follows. On September 7
and 9, 1985,6 the Respondent met with its employ-
ees at its Alexandria, Louisiana retail grocery store
over the employees' concern about lack of wage
increases. At the second meeting, the Respondent's
supervisor of market operations told employees
that company policy prohibited "employees dis-
cussing wages with other employees" and that
"violation of this rule was grounds for termina-
tion." The Respondent also announced that it
i The name of the Respondent appears as set forth in the complaint
and the Respondent 's answer to the complaint
2 The Respondent has excepted to "the [judge's] ruling that denied Re-
spondent the right to use Moue's Board affidavit [and] to the
[judge's] denial of its post-trial Motion to Reopen the Record to include
Moise's affidavit " We adopt the judge's ruling on this matter in his
Order dated December 16, 1985, as amended , based on the reasons and
cases cited
a The General Counsel and the Respondent have excepted to some of
the judge's credibility findings 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
4 The General Counsel has requested that the Order include a visitator-
tal clause We find no need for that provision in the circumstances of this
case See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
5 In adopting the judge's conclusion that the Respondent violated Sec
8(aXl) of the Act by prohibiting its employees from discussing their
wages, we note that in International Business Machines Corp., 265 NLRB
638 (1982), cited by the judge, the Board found that there, inter alia,
unlike here, the respondent did not prohibit employees from discussing
their own wages
All dates are in 1985 unless otherwise indicated
would grant individual wage increases. It notified
employees of their own raises in individual conver-
sations after the September 9 meeting. Employees
not at the meeting or at work did not learn of their
raises until later.
During his work on the night of September 9
and morning of September 10, employee Moise en-
tered Market Manager Cole's office. Moise was
routinely required to go into Cole's office in the
course of his work to leave invoices. According to
credited testimony, Moise noticed several sheets
containing wage increase information located on
Cole's desk top while in Cole's office. Moise
copied the wage information concerning each em-
ployee on the back of a sign. He then talked to
several employees about the pay increases and
showed them the list of what each employee had
received.
On September 11, Cole was told by an employee
that Moise had a list of the employees' pay raises.
Cole questioned three other employees who veri-
fied that Moise had a list and was showing it to
other employees. The questioning was initially con-
ducted on the Employer's premises by Cole. Store
Director Santone and Cole later questioned these
employees and obtained written statements regard-
ing their wage discussions with Moise. Cole asked
Moise where he got the list. Moise refused to tell
Cole how he acquired the list and Cole then sus-
pended Moise.
On September 13, Moise was discharged. During
his termination interview, Cole and Store Director
Santone again asked Moise how he acquired the
list. Moise refused to say except that he got the list
from "a family man." At the hearing, Moise admit-
ted that he was not truthful when he said that he
had acquired the list from another employee. Ac-
cording to Cole's testimony in a pretrial affidavit,
which he confirmed at the hearing, the decision to
terminate Moise was based on "violation of compa-
ny policy by discussing wage information. 117 San-
tone testified as follows:
Q. Now you told Mr. Moise he was termi-
nated because he approached employees and
discussed salaries after specifically being told
' Although not referred to by the j udge, elsewhere in his pretrial affi-
davit Cole stated that I told Moise that he was terminated for revealing
wage information to other employees That was the only reason he was
terminated He was told that was the only reason he was terminated I
asked him how he got the information He said he couldn't say He said
another employee had given it to him. Mr Santone said , well regardless
of how you got the information you are not fired for that You are fired
for one reason , for revealing the wage information
Further, the discharge report prepared by Cole on the day of Moise's
discharge states the reason for discharge as "Misconduct violation of
Company Policies, discussing Co privet [sic] information with other em-
ployees "
294 NLRB No. 34
SUPER ONE FOODS
by Mr . E.B. Jones not to discuss salaries and
that he could be terminated for that , didn't
you?
A. Yes.
Q. And you also told him that was the only
reason he was terminated?
A. Yes.
Q. Okay, and you testified under oath that
Mr. Moise was terminated for one reason and
one reason only, that being for his conduct in
discussing salaries and other employees in vio-
lation of a Company rule , after being specifi-
cally told by management not to discuss sala-
ries with employees , correct?
A. Yes.
1. Addressing Moise 's discharge , the judge noted
that the precise reason for discharge given Moise
at his termination interview was discussion of wage
increases with other employees . The judge deter-
mined , however , that "more was involved" and
found that Moise was discharged because he
showed other employees information obtained from
the Respondent 's confidential files. The General
Counsel excepts to the judge's failure to find that
the Respondent discharged Moise because he dis-
cussed wages with other employees . We find merit
in this exception.
As the judge himself noted , the stated reason for
discharge was discussion of wage increases with
other employees . Moreover , both Cole and San-
tone testified that this was the only reason Moise
was discharged . In this connection , both Cole and
Santone testified without controversion that Moise
was specifically told that he was not being fired for
obtaining the wage information and, further, San-
tone testified that it was immaterial how he had ob-
tained the information . 8 The judge ' s conclusion
that "more was involved" focuses on evidence in
the record that under some circumstances might
have provided a permissible basis for terminating
an employee . We conclude, however , that the
record clearly establishes that , as the Respondent's
witnesses in effect conceded , the Respondent in
fact did terminate Moise solely for discussing sala-
ries in violation of its rule that we have found, in
agreement with the judge , to be unlawful. Thus,
we find that the Respondent 's termination of Moise
violated Section 8(a)(1) of the Act.
Further , contrary to the Respondent's assertions,
we find that the evidence fails to establish that
Moise 's conduct , under the particular circum-
stances presented , warrants denial of reinstatement
with full backpay. The Respondent asserts that
8 Santone's testimony in this regard is consistent with Cole's pretrial af-
fidavit, see fn 7, above
463
Moise should be denied the traditional remedies be-
cause he took information from Cole' s desk and
showed it to other employees in violation of its
written company policy prohibiting disclosure of
information it proclaims to be confidential . In this
connection , we note that the information at issue
here was located on Market Manager Cole's desk
top and was seen by Moise when he entered Cole's
office in the routine course of his work. Thus, al-
though Moise admittedly copied the information,
his conduct was not aggravated by entering an
office where his work did not require him to go or
by opening drawers or cabinets to find concealed
materials . Further , viewing Moise 's conduct in con-
text, we note that at the time Moise acquired the
wage information from the top of Cole's desk, the
Respondent was actively enforcing its unlawful
policy of prohibiting employees from discussing
their wage rates. This denial of the Section 7 right
to discuss wages precluded the employees from de-
termining wage information on their own . It thus
follows that the existence of the rule must be taken
into account in examining employees' efforts to ex-
ercise their Section 7 right to determine and dis-
cuss their wages. This was recognized by the
Board in International Business Machine Corp., 265
NLRB 638 (1982). In that case , unlike this one,
there was no prohibition against employees discuss-
ing their own wages or attempting to determine
what other employees were paid . In that context,
the employer was found to have proved a substan-
tial and legitimate business justification allowing it
to treat as confidential wage information it com-
piled for its own use . Therefore, distributing the
employer 's own information was found to have
been unprotected . Here, conversely , the Respond-
ent attempted to restrict the employees ' Section 7
rights , which bears significantly on the alleged mis-
conduct. In this regard , contrary to our dissenting
colleague , we find it significant that the written
company policy relied on by the Respondent as es-
tablishing that Moise 's conduct constitutes grounds
for dismissal is the same policy it relied on to sup-
port its unlawful policy of prohibiting discussion of
wages . In this context , as distinguished from IBM,
it cannot be said that the Respondent has estab-
lished a legitimate basis for applying its rule to
Moise 's conduct so as to bar reinstatement with full
backpay , or that Moise 's conduct warrants denial
of the traditional remedies.
Contrary to our dissenting colleague , we do not
find that the Board 's reasoning in Axelson, Inc., 285
NLRB 862 (1987), requires a different result. In
Axelson , an employer that had unlawfully dis-
charged employees subsequently learned of their
strike misconduct which was of the sort that would
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have justified the termination of their reinstatement
rights. The Board held that backpay rights would
be cut off at the time the employer acquired
knowledge of the misconduct if it demonstrated
that the misconduct met the standard of Clear Pine
Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d
148 (9th Cir. 1985), and was not conduct of a sort
that it has tolerated in the past.
Contrary to our dissenting colleague, we find
that this matter should not be remanded to compli-
ance to allow further litigation on the issue of rein-
statement for discriminatee Moise. In reaching this
conclusion, we rely on the fact that the Respond-
ent has already had an opportunity to litigate this
issue and the record amply supports a finding, con-
sistent with Axelson, that the Respondent did not
and would not have terminated Moise based on the
manner in which he received the confidential infor-
mation . It is clear for the reasons discussed above
that the termination was solely because Moise dis-
seminated the information in violation of the Re-
spondent's illegal policy against permitting employ-
ees to discuss their wages. From the beginning, it
was always clear to the Respondent that Moise
,came into possession of the information through
other than legitimate means . In the face of this
knowledge, the Respondent clearly informed Moise
that his termination was for revealing the informa-
tion and it was irrelevant how the information
came to his attention. Further, we note that even
the Respondent does not assert that there is a need
for further hearing on the matter. The Respondent
argues that the record demonstrates that Moise has
forfeited his remedial rights because of his miscon-
duct. There is no contention nor record evidence
that would indicate that the Respondent was in any
way precluded from presenting evidence on this
issue . Thus, the Respondent relies on the record
evidence in supporting its contention that reinstate-
ment is inappropriate. By allowing the Respondent
to demonstrate at compliance that it would have
terminated Moise despite his violation of the un-
lawful prohibition of employees' wage discussions,
our dissenting colleague would provide the Re-
spondent a second opportunity to make its case.
Even the Respondent does not contend this is nec-
essary.
2. As to the questioning of several employees
about Moise's discussion with them about wages,
the judge found that "the record did not reveal any
specifics of those interviews." He therefore con-
cluded that he could not determine whether the
interviews were coercive and whether the Re-
spondent violated the Act by interrogating its em-
ployees. The General Counsel excepts to the
judge's failure to find the questioning of employees
about Moise's discussions with them violative of
Section 8(a)(1). We find merit in this exception.
Although the substance of these interviews is not
in evidence, we particularly note the timing of the
interviews in relation to the other unlawful actions
taken by the Respondent. Specifically, as set forth
above, the questioning of employees occurred on
the day after the Respondent' s meeting at which
employees were told of the Company's unlawful
policy prohibiting discussion of wages and that vio-
lation of this rule was grounds for termination. The
record further establishes that this questioning oc-
curred on the day Moise was suspended and 2 days
before he was discharged for the stated reason of
discussing wages. Under these circumstances, we
conclude that these interrogations had a reasonable
tendency to restrain, coerce, or interfere with the
employees in the exercise of the rights guaranteed
them by the Act in violation of Section 8(a)(1).9
AMENDED CONCLUSIONS OF LAW
Delete paragraph 3 and add the following.
"3. The Respondent, by interrogating certain em-
ployees regarding discussions about wages on Sep-
tember 11, 1985, violated Section 8(a)(1) of the
Act.
"4. The Respondent, by discharging Mark Moise
on September 13, 1985, violated Section 8(a)(1) of
the Act."
AMENDED REMEDY
Having found that the Respondent has engaged
in various unfair labor practices, we shall order
that it cease and desist and take certain affirmative
actions designed to effectuate the policies of the
Act. Having found that the Respondent unlawfully
discharged Mark Moise on September 13, 1985, we
shall order the Respondent to offer Moise reinstate-
ment and make him whole for any loss of earnings
and other benefits he may have suffered as a result
of the discrimination against him. i 0 We shall also
order the Respondent to remove from its records
any reference to Moise's unlawful discharge on
September 13, 1985, and to notify him in writing
that it has done so and that the discharge will not
9 Member Cracraft agrees that under all the circumstances the interro-
gations would reasonable tend to restrain , coerce, or interfere with rights
guaranteed by the Act In so finding, however, she does not rely on
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985)
10 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
SUPER ONE FOODS
be used against him in any way. Sterling Sugars,
261 NLRB 472 (1982).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent, Brookshire Grocery
Company, d/b/a Super One Foods, #601, Alexan-
dria, Louisiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating any rule prohibiting its employ-
ees from discussing employees' wage rates and
wage increases.
(b) Threatening its employees with discharge be-
cause its employees discuss their wage rates with
other employees.
(c) Discharging employees for discussing em-
ployees' wage rates and wage increases.
(d) Interrogating employees concerning their dis-
cussion of wage rates and increases with other em-
ployees.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Mark Moise immediate and full rein-
statement to his former job or, if that job no longer
exists , to a substantially equivalent position without
prejudice to his seniority or any other privileges
previously enjoyed and make him whole for any
loss of earnings and other benefits he may have suf-
fered by reason of the discrimination against him in
the manner set forth in the amended remedy sec-
tion of the decision.
(b) Remove any reference to Moise's September
13, 1985 discharge from his personnel file and
notify him that this has been done and that it will
not use the discharge against him.
(c) Post at its facility in Alexandria, Louisiana,
copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by
the Regional Director for Region 15, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
" 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 "
465
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN STEPHENS, dissenting in part.
I disagree with my colleagues only as to their
decision to order reinstatement and backpay for
Moise. In Axelson, Inc., 285 NLRB 862 (1987), a
case issued subsequently to the judge's recommend-
ed decision here, the Board curbed the traditional
remedies for an unlawful discharge where the re-
spondent subsequently acquired knowledge of em-
ployee (strike) misconduct that would warrant dis-
charge for cause. The Board held that it would not
order reinstatement and would limit backpay rights
by cutting them off at the time the employer ac-
quired knowledge of the misconduct if the employ-
er demonstrated that the misconduct meets the
Board's standard for disqualification and, further,
that the conduct was not of the sort that the em-
ployer had tolerated in the past. Although my col-
leagues acknowledge Axelson, they adopt what ap-
pears to be a provocation theory of sorts for the
employee misconduct in this case: Given that the
Employer promulgated an unlawful, gag rule on
the discussion of wages among employees, and
therefore "precluded the employees from determin-
ing wage information on their own," Moise's sur-
reptitious copying of wage information from Cole's
desk is an appropriate response in an effort to exer-
cise Section 7 rights "to determine and discuss
their wages."
As reflected in my vote to hold the Respondent's
gag rule unlawful, I have no quarrel with the
notion that employees may divulge salary informa-
tion to one another in violation of their employer's
rule requiring that such data be treated as confiden-
tial. But it surely does not automatically flow from
this legitimate exercise of employees' Section 7
rights that an employer has no right to withhold
access to the salary records themselves.' Likewise,
I think an employer is entitled to trust that an em-
ployee whose prescribed duties bring him into
physical proximity of private business records that
he is not authorized to possess or use will not mis-
appropriate the contents of those documents.2 In
' See International Business Machines Corp, 265 NLRB 638 (1982) See
also Texas Instruments v NLRB, 637 F 2d 822, 830 (1st Cir 1981), NLRB
v Florida Steel Corp, 544 F 2d 896, 897 (5th Cir 1977) ("While section 7
guarantees an employee the right to use information available in the
normal course of work activity and association, it does not extend to un-
authorized dissemination of information obtained from an employer's con-
fidential files or records ")
2 Compare Bell Federal Savings & Loan Assn, 214 NLRB 75, 78 (1974)
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the instant case, Moise obtained access to the wage
increase information only by virtue of having to go
into Cole's office to deliver invoices. Moise also
admitted at trial that he was not authorized to pos-
sess that information generally as to other employ-
ees (wholly apart from the Employer's unlawful
prohibition against employee discussion).3
In short, I would not be so quick to overlook
Moise's conduct here. Yet, Axelson itself will offer
a reprieve in some circumstances, if the employer
is unable to demonstrate that under preexisting
company policy, applied evenhandedly, the discri-
minatee's alleged misconduct would have resulted
in termination. Because the hearing preceded Axel-
son, the record does not permit us confidently to
resolve this question. Accordingly, I think the ap-
propriate course here is to modify the remedial
portion of the Order to allow, at the compliance
stage, for consideration of Moise's reinstatement
and backpay rights in light of Axelson. To the
extent that remedial order now entered may be
read to foreclose this inquiry, I dissent.4
WE WILL NOT interrogate employees concerning
their discussion of wage rates and increases with
other employees.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Mark Moise immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position
without prejudice to his seniority or any other
privileges previously enjoyed and make him whole
for any loss of earnings and other benefits he may
have suffered by reason of the discrimination
against him, with interest.
WE WILL notify Mark Moise that we have re-
moved from our files any reference to his Septem-
ber 13, 1985 discharge and that the discharge will
not be used against him in any way.
BROOKSHIRE GROCERY COMPANY
D/B/A SUPER ONE FOODS, #601
3 I disagree with my colleagues' suggestion that at the time of Moise's
discharge, the Respondent had sufficient knowledge of how he obtained
the wage information to discharge him under its written confidentiality
policy, but chose instead to discharge him pursuant to its unlawful gag
rule. A reasonable interpretation of the facts in this case indicates that the
Respondent was not certain how Moise came by the information until
Moise himself made admissions at the hearing
4 It is apparent that my colleagues agree with me that Moise in fact
engaged in misconduct with regard to his appropriation of the confiden-
tial wage information Further, there is no dispute that an employer law-
fully may discharge for cause See, e g, Sec 10(c) of the Act Thus, I am
not as reluctant as my colleagues to permit further litigation in order to
ascertain whether the Respondent would have terminated Moise for
cause in light of his admissions of misconduct In my view, a fuller devel-
opment of the record is warranted so as to permit an accurate assessment
of the competing remedial policy considerations here
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 ordered us to post and abide by this notice.
WE WILL NOT promulgate a rule or policy pro-
hibiting our employees from discussing employee
wage rates or wage increases with other employ-
ees.
WE WILL NOT threaten our employees with dis-
charge because they discuss wage rates or wage in-
creases with other employees.
WE WILL NOT discharge employees for discuss-
ing employees' wage rates and wage increases.
Jay Alan Ginsberg, Esq., for General Counsel.
Stephen W Smith, Esq., Counsel for Respondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON , Administrative Law Judge.
This matter was heard in Alexandria, Louisiana, on 9
December 1985. The complaint was based on charges
filed on 27 September 1985 and amended on 22 October
1985, and was filed on 24 October 1985.
The General Counsel alleges the Respondent violated
Section 8(a)(1) of the Act by interrogating employees
about their protected activities, by threatening employees
with discharge if they engaged in protected activities, by
promulgating an illegal policy or rule prohibiting its em-
ployees from discussing wage rates, and by discharging
Mark Moise because of his protected concerted activi-
ties.
On 7 September 1985, at its Alexandra, Louisiana
retail grocery store,' the Respondent met with its em-
ployees at the employees' request over their concern
about lack of wage increases. Pursuant to the employees'
concerns, Respondent conducted a second meeting with
its employees on 9 September 1985.
E. B. Jones, Respondent's supervisor of market oper-
ations, presided over the 9 September meeting . Addition-
' Respondent admitted that it is a Texas corporation engaged in the
retail sale of groceries with a place of business in Alexandria , Louisiana.
During the past 12 months, a representative period, it derived gross reve-
nues in excess of $500,000 and purchased and received goods and maten-
als valued in excess of $25,000 shipped from sources located outside the
State of Louisiana . Respondent admitted that it is, and has been at all
times material herein , an employer engaged in commerce within the
meaning of Sec 2(2), (6), and (7) of the Act
SUPER ONE FOODS
ally, Grocery Superintendent Gary Thiemann spoke to
the employees at that meeting.
Market Manager Gordon Cole admitted that E. B.
Jones told the employees that company policy prohibited
"employees discussing wages with other employees and
that violation of this rule was grounds for termination "
Kevin Santone, Respondent's store director, also testi-
fied about Respondent's 9 September meeting with em-
ployees. Santone testified that the meeting dealt with
several areas of confidential information. Santone admit-
ted that E. B. Jones told employees that they were not
to discuss salaries whenever a wage increase was given,
and that anyone caught discussing salaries may be termi-
nated.
During his work on the night of 9 September and
early morning of 10 September, employee Mark Moise
entered into the office of Market Manager Cole. Moise
was required to go into Cole's office during his work to
leave invoices.
During its 9 September meeting with employees, Re-
spondent had announced that it would grant individual
wage increases. Afterward, Respondent notified the indi-
vidual employees at work of their raises in individual,
one-on-one, conversations. Some employees were not at
the 9 September meeting or at work, and did not learn of
their raises until later.
While in Cole's office, according to Moise, he noticed
several sheets containing wage increase information.
Each sheet pertained to a different employee 2 Moise
then copied the wage increase information on each em-
ployee on the back of a "specials" pricing sign.
Moise admitted that at the time he copied the employ-
ees wage increase information, he was aware that he was
not authorized to possess that information as to employ-
ees other than himself; that he was aware that he was
not authorized to pass out the information to other em-
ployees; and that he was aware that it was "grounds for
2 Moise's testimony conflicted as to the location of the wage increase
information , with that of Gordon Cole Originally, Cole testified that the
wage increase information was written on only one document , i e, pen-
ciled on the back of a "rate review analysis " Cole testified that that doc-
ument was not on his desk top, but was in the lower drawer of his file
cabinet, and that while Moise was expected to come into Cole's office as
required by his job duties, Moise had no business reason to open Cole's
lower file drawer On being called after Moise's testimony, Cole testified
that "individual sheets, for individual employees," were also kept in his
bottom file drawer Cole testified that the information on his desk top in-
cluded only invoices and that Morse was permitted to use and examine
those invoices
Cole's testimony fluctuated from positive assertion that the wage infor-
mation was listed in only one place to an indication that wherever it may
have been listed, all the documents were filed in this lower drawer As to
that testimony, I am convinced that Cole was not telling the truth His
demeanor revealed uncertainty Moise's contrary testimony was firm and
unequivocal Moreover, I am convinced that Moise's version is more rea-
sonable and believable Therefore, I credit Morse as to that particular
issue In its brief, Respondent asked me to draw certain inferences from
the General Counsel's refusal to provide Moise's pretrial affidavit during
Respondent 's rule 611 (c) examination of Morse Respondent is incorrect
in its contentions While the General Counsel did resist production of
Moise's affidavit, General Counsel was never ordered to produce that
document An examination in the transcript shows that Respondent's at-
torney did not pursue his request for production after the I suggested the
affidavit was unnecessary under the circumstances Therefore, I will not
draw any adverse inferences from the General Counsel's failure to
produce Moise's affidavit The General Counsel did not act improperly in
that regard
467
discharge for [him) to go into the office and take the in-
formation."
After copying the information, Moise talked to several
employees including Sarah White, Rodney Saluss, and
Glen Joubert. Moise testified that he talked to those em-
ployees about the pay increases and he showed the list of
what each employee had received
Subsequently, according to Gordon Cole, on 11 Sep-
tember, he was approached by either Rick West or
David Baker and told that Moise had a list of the em-
ployees' pay raises. Cole talked with Sarah White,
Rodney Saluss, and Glen Joubert, who told him that
Moise had a list of pay increases which Moise was show-
ing to other employees.
On 11 September, Cole confronted Moise and asked
where Moise got the list. Morse refused to tell how he
acquired the list. Cole told Moise he was suspended.
On 13 September, Moise was discharged. During his
final interview, Cole and Kevin Santone met with Moise.
Moise was asked how he acquired the list. Moise refused
to say other than he got the list from a family man that
needed his job more than Moise needed his.3 According
to Cole's testimony in a pretrial affidavit, which he con-
firmed at the hearing, the decision to terminate Mark
Morse was based on Moise's "violation of company
policy by discussing wage information."
Kevin Santone testified as follows:
Q. Now you told Mr Moise he was terminated
because he approached employees and discussed sal-
aries after specifically being told by Mr. E B Jones
not to discuss salaries and that he could be terminat-
ed for that , didn't you?
A. Yes.
Q And you also told him that was the only
reason he was terminated?
A. Yes.
Q. Okay, and you testified under oath that Mr.
Moise was terminated for one reason and one
reason only, that being for his conduct in discussing
salaries and other employees in violation of a Com-
pany rule, after being specifically told by manage-
ment not to discuss salaries with employees, cor-
rect?
A. Yes.
Conclusions
The National Labor Relations Act specifically protects
employees engaged in "concerted activities for the pur-
pose of . . . . mutual aid . . . ." Mutual aid, under the
terms of the law, includes employees concerted activities
regarding "wages, rates of pay, hours of employment, or
conditions of work."
The Board and courts have found that it is fundamen-
tal to the above-mentioned rights that employees must be
free to discuss their wage rates and the wage rates of
fellow employees. Here, the record shows the Respond-
ent prohibited its employees from discussing their respec-
3 At the trial Morse admitted that he was not truthful when he told
Cole and Santone that he acquired the list from another employee
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive wage rates under threat of discharge. In that regard,
Respondent engaged in illegal activity . Noland Co., 269
NLRB 1082, 1088 (1984); Jeannette Corp., 217 NLRB 653
(1975), enfd . 532 F . 2d 916 (3d Cir . 1976); International
Business Machines Corp., 265 NLRB 638 (1982).
Respondent also questioned several employees about
Moise 's discussion with them about employee raises.
However , the record did not reveal the specifics of those
interviews and I am unable to determine whether the
interviews were coercive . Therefore , I cannot determine
that Respondent violated the Act by interrogating its
employees . Sunnyvale Medical Clinic , 277 NLRB 1217
(1985).
Finally , Respondent is accused of discharging Moise
because Moise discussed employee wage increases with
other employees . Indeed , the record shows that that was
the precise reason given Moise in his terminal interview.
However, the record shows that more was involved.
Clearly , if Moise was discharged as stated to him by Re-
spondent, simply, because he discussed wage increases
with fellow employees , I would not hesitate to find a
violation of the law . In fact , however , shortly after Re-
spondent told individuals of their respective pay in-
creases, Respondent was advised that Moise had a list of
the wage increases.There was no doubt that Respondent
knew that that list originated in its own files. Moise told
Respondent that the list was acquired by another em-
ployee and supplied to him . Nevertheless , it was appar-
ent that Moise possessed confidential information which
he was revealing to other employees . Moise admitted as
much . Under examination by Respondent's attorney,
Moise admitted that he knew the wage increase informa-
tion was confidential and that he was not authorized to
possess that information.
Therefore , even though Respondent 's statements to
Moise would illustrate a violation, the underlying facts
bring into question whether Moise was in fact engaged in
"protected" activity when he showed the wage increase
list to other employees . The Board has dealt with that
question in International Business Machines Corp., supra.
There the Board stated that although an employer might
not legally prohibit its employees from discussing their
wage rates , an employer may treat "as confidential the
information it has compiled for its internal use."
Here , Moise improperly acquired4 the wage increase
information from Respondent 's files , files which Re-
spondent had compiled for its internal use, and showed
that information to other employees.
Therefore , I find that the discharge herein is similar to
the situation in International Business Machines Corp.,
supra . I find that Moise was discharged because he
showed other employees information obtained from Re-
spondent's confidential files. That activity is not protect-
ed under the National Labor Relations Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent , by promulgating a rule prohibiting its
employees from discussing wage rates and wage in-
creases with other employees, and by threatening its em-
ployees with discharge if they discussed wages with
other employees , engaged in , and is engaging in, unfair
labor practices within the meaning of Section 8 (a)(l) of
the Act.
3. Respondent did not otherwise engage in activities
violative of the Act as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), I shall rec-
ommend that it be ordered to cease and desist therefrom
and take certain affirmative actions designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]
4 As shown above, I find that Gordon Cole left the wage information
on his desk and that Morse noticed the information while engaged in the
legitimate duties of his job Therefore , I do not find that Motse engaged
in any criminal activity Nevertheless , Morse admitted that he knew he
was engaging in reprehensible action when he copied the information and
showed it to other employees