Texas Instruments Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas Instruments Incorporated and International Union of Electrical, Radio and Machine Workers. AFL-CIO. Case I CA 13191 May 16, 1978 DECISION AND ORDER By CHtAIRMAN FANNING AND MEIMBIERS PI.NI ll () AND TRLIFSI)AI.1 On January 6, 1978, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge. to modify his remedy,' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, and hereby' orders that the Respondent, Texas Instruments In- corporated, Attleboro. Massachusetts, its officers. agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. iRespondent has excepted to certain credibilits findings made bh trhe Administrative Law Judge It is the Board's established polics not to o*er- rule an Administrative law Judge's resolutions with respect to credihbilit' unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drl If all Produ is, ]ru. 91 NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951). We have carefills examined the record and find no basis for reversing his findings 2 In adopting the Decision of the Administrative Law Judge. we dI nolt rely on any of his gratuitous comments which are unnecessary to the ulti- mate findings and conclusions herein. In his remedy the Administrative Law Judge omitted the citation for computation of backpay as set forth in F1: 4'. Wool/ortl ( oxr.arl, 90 NLRB 289 (1950). It is hereby modified accordingl) Additionallk . il the recommended remedy. order. and notice, the Administrative L.aw Judge erroneously referred to a fixed 7-percent interest rate and therebs failed to apply properl) the Board's "adjusted prime interest rate" formula. whiclh may vary in the manner prescribed in Florida Steel (C-,rporratirn. 231 NI.RB 651 (1977. See, generally, Isiis Plumhling & Heritng Co. 138 NI.RB 716 (1962). APPENDIX NOI'ICE To E1PI.OY[I.iS PosIi ) BY ORI)ER OF 1HI NAI.IONAI. LABOR RELAITIONS BOARD An Agency of the United States Government WL wHII. Noi discourage membership in In- ternational Union of Electrical, Radio and Ma- chine Workers, AFL-CIO, or in any other labor organization of our employees, by discharging any of our employees because of their member- ship in, support of. or activities in favor of the above-named or any, other labor organization. Wl w .i. NOI prohibit our employees from uti- lizing or publicizing knowledge of our estab- lished wage rates for organizational purposes. WE wilL NOt in any other manner interfere with, restrain, or coerce our employees in the right to self-organization. to form, join, or assist International Union of Electrical, Radio and Machine Workers, AFL CIO, or any other la- bor organization, or to engage in any other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any' and all such activities. Wit wlll offer Mary Clinker, James Lavery. Patricia Nute, James Mallon, Janice Morchand, and Maurice DuPont immediate and full rein- statement to their former positions or, if such positions no longer exist, to substantially equiva- lent positions, without prejudice to their senior- itv and other rights and privileges. W 'L wIli make all of the foregoing employees whole for any loss of earnings they ma) have suffered as a result of our discrimination against them, plus interest. TiXAS INSIRUMiNIS IN(ORPORAII.I) DECISION SIAII MiNI OF tHE CASt TIOMAS A RI(.I. Administrative Law Judge: A hearing in this proceeding was held on October 25 and 26, 1977, at Boston, Massachusetts, on complaint of the General Coun- sel against Texas Instruments Incorporated, herein called the Respondent or the Company. The complaint issued on July 20, 1977, on a charge filed on June 2, 1977. by Inter- national Union of Electrical, Radio and Machine Workers, AFL -CIO. herein called the Union or the Charging Party. The issue presented is whether the Respondent unlawfully discharged six employees for engaging in protected con- certed activity and thereby violated Section 8(a)( ) and (3) of the Act. Briefs were filed by the General Counsel and the Respondent. 236 NLRB No. I 68 TEXAS INSTRUMENTS INCORPORATED Unon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I FHE BUiSINESS OF THE RESPONDENT Texas instruments incorporated is a State of Delaware corporation, with its principal office and place of business in the city of Dallas. Texas. It also maintains a plant in Attleboro, Massachusetts. where it is engaged in the manu- facture, sale, and distribution of electronic and related products. In the course of its business the Respondent causes large quantities of raw and manufactured materials to be transported in interstate commerce. It annually re- ceives in the Commonwealth of Massachusetts goods val- ued in excess of $50,000 directly from out-of-state sources. It also annually ships from its Massachusetts location goods valued in excess of $50,000 to other states. I find that the Respondent is engaged in commerce within the mean- ing of the Act. 11. THE LABOR OR(;ANIZAIION INVOLV.'F[) I find that International Union of Electrical, Radio and Machine Workers, AFL CIO. is a labor organization with- in the meaning of Section 2(5) of the Act. Il THE UNFAIR LABOR PRACTICES A. The Case in Brief Among the 5.000 employees at the Respondent's Attle- boro plant, there has never been collective bargaining or union representation, but a very small group of workers have for a few years been trying to generate enthusiasm in favor of the IUE. They call themselves the Organizing Committee, and so far as this record shows, are no more than about 10 persons. About once a month they have printed and distributed leaflets about the plant entrances towards that end. They prepared another such leaflet of distribution on May 25, 1977, and twice that day, and once the next morn- ing, they' handed it out at the plant entrances when the shifts were changing. Six of the employees who did that all members of the Organizing Committee-were suspend- ed in the afternoon of May 26 and discharged on June 5. That the purpose of the leaflet distributed was to encour- age other employees towards self-organization. and to come to a scheduled meeting of the Organizing Committee. is clear on the face of the leaflets themselves. That the reason why they were discharged was literally because the six engaged in that sidewalk distribution activity, is also conceded. That discrimination in employment-outright discharge, as here --for such activity is an unfair labor practice under this statute, at least within the purview of Section 8(a)( I), is so obvious that no citation of authority is required at this late date. All that has to be decided is whether there is any merit in the defense argument that in this case there were special circumstances that must excuse what is on its face the clearest unfair labor practice imagin- able. The Respondent contends that the six were dis- charged because they were disloyal to the Company, be- cause they violated security regulations of the plant, be- cause they in effect revealed proprietary information, and because they disregarded established and printed rules of conduct. B. The Asserred Defense As a part of its studied technique to discourage organi- zational activities, or establishment of any union in this plant. Texas Instruments takes pains to restudy its own hourly wage scale for all classifications every 6 months or so and to give raises to bring its rates more or less close to what other companies in the general area pay for compara- ble work. It carries on what it calls a wage survey, asking a number of other companies to let it know what their wage scales are. This knowledge is then collated, studied, com- pared to the Respondent's current wages, and then used to help decide now best to keep the employees satisfied and to assure that they remain indifferent to invitations towards collective bargaining. The Company also periodically distributes question- naires to its own employees. inquiring, in detailed format. whether the'y are satisfied with their working conditions. their supervisors, their chances for advancement, as well as with the pay they are receiving. There are also what was called on the record "task forces." These are appointed employees who discuss with management the results of the employee questionnaires and talk about what can be done to keep the overall group happy and satisfied. The question whether the pay of the moment is or is not fair at any given time always arises. In fact, at a meeting of this task force with Manufacturing Manager Kenneth Leeco at the very time of the events giving rise to this case, the question of "fair pay" was discussed, and the manager wrote, on his notes of the meeting: "Interested in an area survey result." next to the item entitled "Paid Fairly." There can be no doubt, therefore, as the record also shows, that management tells the employees that their pay at any given time compares favorably with what employees of other companies are receiving. To what extent the Re- spondent actually puts before the eyes of its employees precise details of the wage scales of its competitors may be questioned. I think it a fair assumption, and there is record indication to support this also. that management is selec- tive when deciding which wages paid by particular other companies to show the employees here. But that the tech- nique of conveying the thought that they are doing well by comparison-in consequence of the Company's area wage survey technique cannot be questioned. In its general operations this Company, like many others, has confidential information about its business, its scientific know-how, its specialized products, as well as about its financial conditions. There is also secret data con- nected with defense contracts including technological ad- vances, etc. The Compans therefore has a security system aimed at protecting business, or scientific information, so that its competitors- or maybe communist spies not see 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it. Where documents recording such data as formulas are involved, one of the methods for alerting those employees whose duties include handling them, is to mark the reports and records "strictly private," or "TI internal data." Mate- rial so marked is not to be left lying around, uncovered, or taken out of the designated files and offices. There are very exacting rules governing the conduct of the employees who have access to these things, and also very stringent proce- dures for discipline, even discharge, for violation of appli- cable security regulations. About a month before April 25 some person-never identified-mailed to the much publicized post office box maintained by the Organizing Committee a large envelope containing what seemed to be copies of papers maintained in the Company's offices. Included were instructions to supervisors, charts of wage scales, graphs, miscellaneous information about the Company's own established wage rates, and detailed lists of wages paid by a large number of other companies-these representing information received by the Respondent in response to its periodic wage survey program. Among the many documents, there were two which listed wages paid by 15 other companies-one list for "assembler and bench worker," and the other for "tool maker." When the employee committee looked at all these things, they decided to use the last two here mentioned, showing the minimum and maximum paid by all these other companies for certain grades of bench workers and toolmakers. Their reason for doing this, as one member of the committee-Janice Morchand-testified, was: "there were some things in there concerning merit wages and giv- en the fact that merit raises were coming up shortly after that, I felt that someone had mailed it to us to use, so that we could use some of the information to expose their poli- cies on merit raises." The committee had copies of the two charts made, some- what smaller than the form in which they had found them in the mail so they would fit in the proposed campaign leaflet. Among the statements appearing in the paper then distributed among the employees appear such phrases as: "Let's organize and fight for a guaranteed raise," "Let's take a look at how the Company figures out the raises. They do a survey of what other company's in the area are paying for similar jobs .... The key thing for setting the wages in this area is what the union shops are getting. Take G.E., for example, doing the same work we're doing but making well over $1.00 more per hour, because workers there have struggled over the years through their union for a decent wage. If it wasn't for these organized places pay- ing better wages to bring the average up, we'd be down there with Balfours .... So it's the struggle of our fellow workers in unions that keep our wages where they are." The Respondent's personnel director said the Company makes it a practice to obtain copies of all organizational leaflets that are distributed by anyone around its plants. When the members of the Organizing Committee-at least the six employees listed in the complaint here-started giv- ing their leaflets out on the morning of April 25. office managers had copies brought in and studied them in detail. They then went out to the sidewalk and told the distribu- tors they should stop, because the information about what other companies were paying was "classified." The distri- butors disagreed, and continued with their activity. The next day each was called separately into the office and questioned in detail about the entire activity. Suspended at the end of the interview, each one was discharged a few days later. In explaining why they had a right to fire these employ- ees, the Respondent's witnesses-all personnel or security officers-articulated a number of reasons, some stated di- rectly and some obliquely. Much of their testimony is real- ly argument, explaining why this information-how much other companies pay their employees-is classified, must be kept secret, is of value to the Company, helps its posi- tion in a competitive market, and serves the purpose of keeping unions out of the plant. But to the extent that their generalizations and conclusions, real or fancied, have any- thing to do with these employees, the only substantive evi- dence they advanced in support of the assertion that the six somehow misbehaved is the Company's handbook, which does contain rules of conduct. And there the only one which could, if at all, apply to what these six did, appears under the title "Conduct," and reads: "The following ma- jor infractions may be considered grounds for termination: . . .Disclosure of classified material to unauthorized per- sons." There is one other definitive fact on which the Respon- dent relies to support its contention that the employees knew they were violating company rules. A number of the copies of documents which the committee found in its mailbox had the words "strictly private" stamped at the bottom. These words did appear at the bottom of the two sheets which the employees reproduced in their leaflet for distribution. They cut off that part, explaining at the hear- ing that their reason for doing so was because it was irrele- vant to the message they were conveying for organizational purposes, and because the two sheets had to be shrunk to fit into the leaflet they were printing. Essentially, the affirmative defense is a charge of mis- conduct against the discharged employees. It is therefore important to make one thing clear. They had nothing to do with removing this information out of the Company's files or offices. The manager said that he and other company security agents searched exhaustively to find out who had tampered with documents in violation of security rules. I find nothing improper in the fact they questioned these six employees about that; after all, somebody inside the of- fices did send the material into the mails. There were only 16 copies in existence and all were found in the proper place. It follows someone who had access to them in the usual course of his duties simply made copies of the origi- nals. The Company admits it had no evidence pointing to these six as among the culprits. This is not a case, therefore, involving the discharge of employees who tampered with papers, documents, or objects of value marked secret by the Company. When an employee, at work in the employ- er's office or plant, steals, borrows, or merely makes copies of, papers placed in his charge as part of his work assign- ment-in violation of precise rules he knows and under- stands-he certainly merits discharge. And many of the Board decisions to that effect are cited in the Respondent's brief here. But none of them has anything to do with this case. 70 TEXAS INSTRUMENTS INCORPORATED C. Conclusion I find unpersuasive the argument, repeated again and again throughout the hearing, and then restated constantly throughout the Respondent's posthearing brief, that knowledge of how much other companies in the neighbor- hood pay employees for comparable work, is to be equated with commercial secrets of an employer or internal security matters pertaining to defense contracts between Texas In- struments and the United States Department of Defense. No amount of adjectives can change the meaning of nouns. All that was involved here was knowledge of how the Re- spondent's wage scale compares to those of other compa- nies, including some-as the Organizing Committee was quick to emphasize in its leaflets-where unions represent the employees, To say that this was a matter of "propri- etorship"-as though it were something belonging to this Respondent and that someone could steal from it-or "pri- vate business records"-a phrase that keeps running page after page in the company brief-is no more than sound, or what MacBeth would have called "sound and fury signify- ing nothing." The employees knew this information had been gathered from office papers located in the Respon- dent's office. It would demean this decision to discuss at length why their use of it to further their organizational objectives was not tantamount to "activities to injure or destroy his employer's business." quoting from The Hoover Company v. N.L.R.B., 191 F.2d 380 (C.A. 6). also in the Respondent's brief. Lon Bonczek, the Attleboro personnel director, went as far as to liken knowledge about other companies' wage scales to secret information tied to this Company's "nu- clear operation . . . governed by the nuclear regulatory agency and its security restrictions." Floyd Purvis, top se- curity guardian of Texas Instruments worldwide opera- tions, former FBI agent, honorary member of the Japanese Society for Industrial Security. guest lecturer, etc., gave it as his opinion that "this case has very grave impact on a lot of things . . . It pertains to technology and the life blood of the company." In entertaining but ambiguous language he rambled along on how this "case" can be compared to perhaps 20 other critical situations involving the impor- tance of maintaining secrecy. Included among these he spoke of "Department of Defense business . . . sonar, de- tection of underground submarines." "classified con- tracts," "technological advances like the silicone transis- tor," "seismic digital data," "micro-miniaturization of solid data electronics," etc. What all these things have to do with the employees learning that perhaps workers at an orga- nized plant are paid more than where they work, nobody really explained. However phrased, what the management agents found inconvenient and embarrassing, to the point of putting a stop to it was the Organizing Committee using the very knowledge that had served the Company's interests in keeping the employees away from self-organization. now to persuade the same employees to get together, and even join the IUE perhaps. I think the case is best summed up in the General Counsel's brief: "When a Company ties its wages so closely to the wage area survey and so advises its em- ployees, the Company is virtually incorporating the partici- pating companies' wage structure into its own. When the wages of the employing company are so inextricably en- twined with the wages of other employers, and the employ- ing company so advises its employees, it should not be allowed to place any greater restriction on the discussion or disclosure of the other employers' wages than it can place on the discussion of its own wages." When being questioned by Wayne Wright, manager of labor relations, about how the committee had come into possession of the wage information relating to other com- panies, employee Morchand came back with-according to her uncontradicted testimony--"l would like to ask you something. I don't understand what the big deal is about. You give us the reports of the area surveys, and things that are costs at our department meetings." Wright's answer to her was: "Well, what you receive is the result of our survey, not the actual survey. Let me make it clear first and fore- most we are concerned with the theft of TI material and secondarily with the fact that you are passing it out." This was the company agent in effect conceding that so long as the Company used a selective version of the information to combat unionism, there was nothing inherently wrong with the employees using other portions, or all of it, to further their own interests. The attempt to place this incident within the rules of conduct set out in the employee handbook is equally un- convincing. I find that the six employees were engaged in purely organizational activities, that the Company certain- I1 knew it, that they were told to stop-and discharged when they refused with an object directly to discourage their statutorily protected right to self-organization. I find that by such discharges the Respondent in each of the six instances violated Section 8(a)(1) and (3) of the Act. The General Counsel asks for a further finding that when the company agents told the employees they should not distribute their literature they committed a further un- fair labor practice. I do not see the point in belaboring the real question in this way. Of course when an employer can- not discharge a man for one act or another he cannot threaten him with the reprisal. But to divide the conduct which constitutes the essence issue of the case into a series of illegal steps adds nothing of substance and only confus- es the real question. Another allegation in the complaint is that when ques- tioning the six employees on April 29, in the attempt to learn who had violated proper office rules about not re- moving company documents from the premises, the per- sonnel officials unlawfully interrogated them. I make no finding of unfair labor practices then. It is a fact papers had been improperly removed from the offices: it is a fact these employees had copies in their hands. For all they knew then, the company men could very well believe these were the culprits. In the end they were satisfied this was not so, as they admitted at the hearing. I can find nothing wrong, in the circumstances, in the effort to search out the identity of the wrongdoers. Despite their implications to the contrary. the employee witnesses who testified as to that questioning all admitted that the questions were di- rectly aimed at ferreting out the identity of whatever per- sons had made the copies received by the Organizing Com- mittee in the mail. 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But there is one other allegation that is supported by the evidence. The Respondent admits it has a rule among the employees to the effect that theN may not publicize, among any persons other than their fellow employees, the wage scales paid by this company to its own people. That this is an enforced rule is conceded in the brief of Company counsel: "TI employees are freely permitted to discuss their individual wages with outsiders. The only prohibition is against TI employees discussing Tl's wage schedules with non-TI employees . . . I he only restriction governing the wage schedules pertains to the dissemination of such information to persons not employed by TI." It would be difficult to imagine a substantive subject in the area of conditions of employment more pertinent to self-organiza- tional activities than the wages an employer pays its entire employee complement. If the employees cannot talk about that, to the public, to possible professional union organiz- ers, to anybody on the sidewalk, they are effectively muz- zled where it counts most. Here again, the defense argu- ment is that what a company pays its employees is directly related to how much it costs to produce its products, and that revelation of such business secrets helps competitors and may therefore be guarded. even against any statutory rights of the employees to form or join unions. The argu- ment could as well be made in defense of any steps taken to keep a union out of any company. I find that by main- taining a rule prohibiting its employees from discussing the Company's wage schedules with persons other than the employer's own employees, the Respondent is continuous- ly committing an unfair labor practice in violation of Sec- tion 8(a)( ) of the Act. Compare, Jeanette Corp. v. N.L.R.B., 532 F.2d 916 (C.A. 3, 1976): Blue Cross-Blue Shield of Alabama, 225 NI RB 1217 (1976). IV rOill R Me[DY It having been found that the Respondent unlawfully discharged the six employees in question it must be or- dered to reinstate them to their former or substantially equivalent positions. It must also be ordered to make them whole for any resultant loss of earnings with interest at 7 percent. See Florida Steel Corporation. 231 NLRB 651 (1977).' The Respondent must also be ordered to cease and desist from further commission of unfair labor practices. V THE EFFECTS OF THE UINFAIR IABOR PRAC(ICES UPON COMMFRCE The activities of the Respondent set out in section III. above, occurring in connection with the operations of the Respondent described in section 1, above, have a close. intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. See. generally, I.sii Plumbing llehatingi (Co, 138 N IR B 716 (1962). CONC LUSIONS OF LAW I. By suspending Mary Clinker, James Lavery, Patricia Nute. James Mallon. Janice Morchand. and Maurice Du- Pont on May 26. 1977, and by discharging those same em- ployees on June 2, 1977, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) of the Act. 2. By the foregoing conduct and by prohibiting its em- ployees from utilizing and publicizing knowledge of the Respondent's wage rates for organizational purposes, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 2 The Respondent. Texas Instruments Incorporated, At- tleboro, Massachusetts, its officers, agents, successors. and assigns. shall: 1. Cease and desist from: (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization of its employees by discharging employees or otherwise discriminating against them in their employment conditions because of their membership in or activities on behalf of the above-named or any other labor organization. (b) Prohibiting its employees from utilizing and pub- licizing knowledge of the Respondent's wage rates for or- ganizational purposes. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization. to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Mary Clinker, James Lavery, Patricia Nute, James Mallon, Janice Morchand, and Maurice DuPont im- mediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Make each of the foregoing employees whole for any loss of pay or any benefits they may have suffered by rea- - In the event nol exceptions are filed as provided hs Sec. 10246 of the Rules and Regulations of the National Labor Relations Board. the find- ings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 72 TEXAS INSTRUMENTS INCORPORATED son of the Respondent's discrimination against them, as provided in The Remedy herein. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Attleboro, Massachusetts. plant, copies of the attached notice marked "Appendix." 3 Copies of said 3 in the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted hs Order of the National Lahor Relations Board" shall read "Posted Pursuant to a notice, on forms provided by the Regional Director for Region I. after being duly signed by its representatives, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writ- ing. within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the I:nited States Court of Appeals Enforcing an Order of the National Labohr Relations Board." 73