Cooper Indus-Tries, Inc.

CROUSE-HINDS CO 333 Crouse-Hinds Company, a Division of Cooper Indus- 'tries, Inc. and Randolph C. Burroughs. Case 16-CA-11026 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 February 1984 Administrative Law Judge Richard J. Linton issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions.' The National Labor Relations Board_ has delegat- ed its authority in this proceeding ' to a three- member panel. The Board has considered the, decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. The General Counsel filed with the Board a motion to strike the Re- spondent's brief opposing the exceptions Thereafter, the Respondent filed a motion to stnke the General Counsel's exceptions Both motions are denied 2 The General Counsel alleged that the Respondent violated Sec 8(a)(1) of the Act by discharging Supervisor Burroughs because his busi- ness partner, employee Newbrough, engaged in uniod activities The General Counsel argued that the discharge coerced Newbrough in the exercise of his employee rights because the part-time business in which Newbrough had a one-half Interest could be harmed by the loss to Bur- roughs through the discharge of his main source of income In adopting the judge's conclusion that Burroughs discharge did not violate the nghts guaranteed Newbrough by Sec 7 of the Act, we emphasize that the judge found that Burroughs was fired for his own conduct in main- taining a business relationship with a union organizer and not because of Newbrough's organizing activities or for helping Newbrough to vindicate his employee nghts We find it unnecessary to pass on Golub Bros Con- cessions, 140 NLRB 120 (1962), and similar cases that hold that it is un- lawful to discharge a supervisor because his or her spouse engaged in protected activity, as those cases are inapposite to the facts here DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case was tried before me in Amarillo, Texas, on October 6, 1983, pursuant to the August 10, 1983 complaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 16 of the Board. The complaint is based on a charge filed April 18, 1983, by Randolph C. Burroughs, an individual (Burroughs or the Charging Party), against Crouse- Hinds, a Division of Cooper Industries, Inc. (Respond-' ent). In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(1) of the Act on March 25, 1983, by discharging Burroughs, Respondent's main- tenance general foreman, because a statutory employee (Joseph R. Newbrough) of Respondent, who was en- gaged in a sideline business as a partner with Burroughs, became -involved in union activities, and that the dis- charge violated Section 8(a)(1) of the Act because it was done "in order to discourage employees" from engaging in union or other protected activities. By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following' FINDINGS OF FACT I. JURISDICTION Respondent is an Ohio corporation. It has a facility lo- cated in Amarillo, Texas, where it is engaged in the man- ufacture and sale of electrical fittings for electrical con- struction. 2 During the past 12 months, Respondent pur- chased supplies and materials valued in excess of $50,000 from firms located outside the State of Texas, and such supplies and materials were shipped from such firms di- rectly to Respondent's Amarillo, Texas facility. Respond- ent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The General Counsel alleges that the International Brotherhood of Electrical Workers, Local 602, AFL- CIO-CLC (the Union or Local 602) is a labor organiza- tion within the meaning of Section 2(5) of the Act. Nei- ther in its answer nor at the hearing did Respondent ever admit such allegation to be true. However, Crouse-Hinds has contracts with other locals of the IBEW at other lo- cations (Tr: 194). It appears from the record that on March 4, 1983, Local 602 filed the representation peti- tion in Case 16-RC-8545, and that the Board-conducted election was held in that case on April 29, 1983 (Tr. 173- 174, 219) The fact that Region 16 conducted the elec- tion supports the finding, which I make, that Local 602 is a labor organization. Story Oldsmobile, 244 NLRB 835, 836 (1979). / All dates are for 1983 unless otherwise indicated 2 The corporate headquarters of Cooper Industries is located in Hous- ton, Texas (Tr 189) The division headquarters of Crouse-Hinds is situat- ed in Syracuse, New York (Tr 191, R Br 6) 273 NLRB No. 50 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. General Facts Charging Party Burroughs, as the parties stipulated, was a statutory supervisor at all times .relevant (Tr. 24).3 Around January 10, 1983, Burroughs and Joseph R. Newbrough, a millwright in Respondent's maintenance department, orally agreed to a blisiness partnership, os- tensibly on a 50/50 basis, in which they began operating a septic tank and backhoe business part time. 4 As shown on their business card, they named their side business the "B & N ,Septic Systems & Backhoe Service.",(G.0 Exh. 3; Tr. 32-34.) In accordance with Respondent's rules, Burroughs obtained clearance from Respondent to enter the side business (Tr. 118-119). He thereafter distributed B & N's business cards (which named both him and Newbrough) to various supervisory persdnnel. In the latter part of January, Personnel Manager Don Barclay and Plant Manager Robert J. Murphy each conversed with Burroughs concerning the progress of B & N (Tr. 36).5 About Monday, February 28, 1983, Newbrough, his wife Marlene (herself an employee of Respondent), and employee Peggy Griffin went to the union hall of IBEW Local 602 and obtained authorization cards which they began distributing (Tr. 156-165). The organizing went rather quickly, for on March 4, 1983, the Union, in Case 16-RC-8545, filed a ,petition for representation election (Tr. 173, _219). Newbrough passed out union literature every working day in March_ (Tr 65). The election was conducted in a unit of 118 employees on April 29 (Tr 219), and, in Newbrough's words, the Union lost by a "pretty good" margin (Tr. 165). By no later than early March Burroughs was aware that Newbrough was involved in the union organizing, and around Friday, March 11, Plant Manager Murphy informed Burroughs that the organizing had started in his maintenance department (Tr. 77, 114, 139-142).6 Leading up to the conversation in Murphy's office about March 11, Burroughs had a conversation with Per- sonnel Manager Barclay, perhaps a day or two before March 11, in Burroughs' office. On that occasion Barclay told Burroughs that Burroughs needed to get his business partner "straightened out on his activities." Burroughs said that he did not feel he had the right to interfere with Newbrough's beliefs and that, if Newbrough 3 Respondent hired Burroughs on July 10, 1980, raised him to mainte- nance foreman around October 1980, and promoted him to general fore- man about October 1981 (Tr 22, 132, G C Exh 8) 4 Newbrough, who later voluntarily quit his employment with Re- spondent, was a rank-and-file employee directly under a maintenance foreman The foreman in turn reported to Burroughs There were about 26 employees in the maintenance department 5 Only three witnesses testified in this proceeding Burroughs and Newbrough for the General Counsel (with Burroughs again taking the stand in the rebuttal stage), and Edward Dunphy Jr for Respondent An attorney, Dunphy is vice president of employee relations for Crouse- Hinds at its Syracuse, New York headquarters 6 The record is unclear concerning exactly when Burroughs first became aware of the organizing Although Newbrough places one con- versation on the subject with Burroughs as occurring even before the cards were obtained, he seems to merge a separate and later matter with that conversation (Tr 160) The precise time of Burroughs' knowledge is immaterial here wanted to be involved in the Union, it was his right and Burroughs would not interfere. At that Barclay changed the subject (Tr. 78-80, 115). Although Barclay did not expressly mention "union," it is clear, and I find, that he was making reference to the union activities of New- brough. At one point during the March 11 conversation when Murphy informed Burroughs that the union organizing had started in the maintenance department, Murphy and Burroughs were standing by a window It was at the end of the shift and Newbrough could be seen waiting for Burroughs in the latter's automobile. Gazing out at New- brough, Murphy told Burroughs that "it does not look good to the company or to the employees" for Bur- roughs to be seen in the company of Newbrough, and that such a relationship could lead to a serious problem. Burroughs replied that he and Newbrough did not dis- cuss the Union, that the subject Was not a problem be- tween them, and that Burroughs would not discontinue their friendship or relationship (Tr. 80-81, 114) Following this conversation, Burroughs told New- brough that because of Burroughs' management obliga- tions he no longer could socialize with Newbrough al- though they would continue their B & N business rela- tionship (Tr 116). Either in that conversation, or one as late as March 21, Burroughs, as Newbrough credibly tes- tified, told Newbrough that Burroughs was receiving heat because of their association and because Newbrough was a union organizer (Tr. 162, 168). The parties stipulated that James Ferguson is a statuto- ry supervisor (Tr 41). Based on the stipulation and the combined testimony of Burroughs (Tr. 38, 84) and that of Vice President Dunphy (Tr. 196), it appears that Fer- guson holds some position in the employee relations de- partment in Cooper Industries' corporate office in Hous- ton. During . the Company's counterOrgamzing cam- paign, 7 Ferguson conversed with Burroughs on three Oc- casions The first two conversations are not described The third took place about March 22 in the office of Ron Riley, the plant superintendent. Only Ferguson and Burroughs were present. On this occasion Ferguson stated that Burroughs' outside business relationship .with the union organizer was a real problem, and that it was not acceptable and would have to be dealt with soon (Tr. 85-86, 89, ,115-116). Ferguson asked if Newbrough was aware that he was placing Burroughs' job in jeop- ardy. Burroughs replied that he saw no problem on the matter, that he and Newbrough knew how the other stood on the union subject. Ferguson then complained that Burroughs had inter- fered with Ferguson's countercampaign when Burroughs intervened on behalf of Peggy Griffin who had received a warning for absenteeism Burroughs told Ferguson that the reason he asked Plant Manager Murphy to review the case was because Murphy had always had an open Burroughs testified that the supervisors were trained in the "Do's and Don'ts" and Instructed not to commit any unfair labor practices (Tr 143) Burroughs carried out his assigned tasks in the countercampaign, in- cluding distributing Respondent's handbills (Tr 93) Respondent opposed unionization of the plant (Tr 142) Dunphy testified, however, that Crouse-Hinds has contracts with the IBEW at other locations (Tr 194) CROUSE-HINDS CO 335 door policy and several union supporters had come to him and said that the Peggy Griffin case was an example of why they wanted a union. Burroughs told Ferguson that, afterwards Murphy told Griffin the matter had, been mishandled by the personnel ,department and that the warning would be removed from her file. Burroughs fur- ther told Ferguson that he was not in favor of the Union at the plant, but he would not disavow his friendship with Newbrough. Finally, Burroughs expressed the opin- ion that the personnel department constituted 90 percent of the problems in the plant by, for example, mishandling certain terminations. Ferguson said "that" (personnel in- eptness, apparently), would all be at an end (Tr. 86-90). At a regular meeting of the maintenance department in the late afternoon on Friday, March 25; 2 of the 18 em- ployees present asked Burroughs about his personal views on the Union. Burroughs responded that if did not matter to him personally, that his job was to run the job effectively and efficiently, and that he would see that the job was done—with the Union or without one (Tr. 92, 144-145) Moments later Burroughs was summoned to Plant Manager Murphy's office. Just the two of them Were. present. Murphy asked for Burroughs' resignation. Bur- roughs inquired if Murphy meant from his supervisory position. The plant manager advised that it was a com- plete separation, and that Burroughs would be terminat- ed if he did not resign. Burroughs asked for the reason and who had made the decision. 8 Murphy stated that the reason which would be given was a "conflict 'of inter- est," that the people handling Respondent's counter cam- paign felt that Burroughs , was a problem because of his outspokenness and his association with the union orga- nizer, and that such persons did not want that associa- tion. • Burroughs said that .he would not resign, that he wanted the reasons stated on the termination slip, and that he would return the following day to obtain any evaluation or contracts he had signed (Tr 94-96). The following day he picked up the termination slip which states (G C Exh. 7): '"Termination due to conflict of in- terest." At the close of the General Counsel's case-in-chief, Respondent moved for dismissal on the ground that no violation had been established- even if all the General Counsel's evidence were credited (Tr. 174). I denied the motion and Respondent proceeded with its defense by calling its only witness, Vice President Edward Dunphy Vice President Dunphy testified that he was present at a general meeting of Respondent's officials at the corpo- rate office in Houston, Texas, on March 24, 1983 In at- tendance were H. John_ Riley Jr ,. executive vice presi- dent of Cooper Industries, Felix F. House, senior vice president and general manager of the electrical construe-, non materials product group of Cooper Industries; James Ferguson: and Dunphy (Tr 190, 204) A. number of mat- ters were discussed including a report, apparently by Ferguson, on the Union's organizing attempt at the Am-. 8 On cross-examination Burroughs testified that he and Murphy re- spected each other and he therefore knew Murphy would not have taken this action on his own without talking with him in advance (Tr 147-148) nllo plant (Tr. -189-1-90) Included in the report, accord- ing to Dunphy, was a comment that Burroughs was en- gaged in a commercial venture with a person he super- vised, and that the business venture had-consumed some of the normal work hours at Respondent's plant (Tr. 190, 195, 199-200) 9 Ferguson's report also included the fact that Newb`rough was the husband of a woman active on behalf of the Union (Tr. 191). Dunphy testified that the report made no mention that Newbrough was active for the Union (Tr , 202). Accofding to Dunphy, that report was his first knowledge that Burroughs was involved in a business venture with one of his department's employ- ees -(Tr 195, 201). Riley, House, and Dunphy Conferred at a separate meeting later that March 24. Dunphy remarked that, al- though Burroughs Was held in high regard as a techni- cian, he was a problem in his relationship with other su- pervisors, and that the business venture with a subordi- nate was unacceptable When Riley asked what should be done, Dunphy stated that Burroughs should be termi- nated. Riley asked if it made any difference that New- brough's wife was active in the Union's campaign Dunphy responded in the negative and added that Re- spondent could nel have a supervisor compromising his responsibility to the Company by becoming involved in such a situation (Tr 190-191). At Syracuse, New York, the following day, Murphy's superior, Patrick J. Vas- sallo, vice president of manufacturing for Crouse-Hinds, was informed - of the policy decision to terminate Bur- roughs, and Vassallo• apparently instructed Murphy that very day, March 25, to implement the decision (Tr 191).i " On the matter of Bu rroughs' suPervisory performance, it should be noted that the record 'contains his last ap- praisal, dated September 10, 1982, by Plant Manager Murphy, and approved by Vassallo on September 17, 1982 (G.C. Exh.• 2). Item 6 under _fob performance per- tains to his ability to work well with others. Murphy's entry for this item reads. Works well with his subordinates; has difficulty 'working with his peers in the production area ; .Under the general heading of overall performance, item 4, asks for -a description of areas needing improve- ment. Murphy wrote. Needs to improve his tact in dealing with people outside of his. direct realm of responsibility He also needs to develop a better understanding of the rules that a corporation of our size is governed by , On the topic of potential for advancement, under item 4, Murphy wrote that Burroughs could eventually be 9 Although the report apparently named Newbrough, Dunphy testified that he did not recognize the name (Tr . 190, 192) Dunphy either knew Burroughs or recognized his name, and, indeed, referred to him by his nickname of "Bo" in his testimony • l ° As Vassallo:s name appears in the record with questionable or un- certain spelling (Tr 31, G C Exh 2 at 4),.I have used the spelling shown at page 8 of Respondent's brief 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promoted to plant manager. As a final comment, Murphy added: Mr. Burroughs is a very highly qualified Mainte- nance Supervisor. He knows how to operate a maintenance crew. He needs to grow in the area of personnel relationships with people outside this group. S . , _According to Dunphy, he considered' and rejected the option of having Burroughs, rather than being fired, be directed to cease his business 'relationship with New- brough. He rejected the idea because (1) the B & N'rela-- tionship was well known among a large number of the employees; (2) his supervisory skills were a source of concern to Dunphy; (3) he showed a lack of judgment in establishing B & N with a subordinate; and (4) attend- ance to B & N had, in some instances, occurred during work hours at Respondent's plant (Tr. 205).11 B. Credibility Resolutions 1. Introduction It can be argued that I should first determine whether. the General Counsel's evidence adduced during his case- in-chief, viewed in isolation from Respondent's defense,. establishes a prima facie case before I proceed to review all the evidence. 12 On the other hand, as. Respondent proceeded with its defense after I overruled its motion, one might contend that the appropriate procedure is to consider all the evidence, make , credibility resolutions, and resolve the case on the merits of the entire record..13 In view of the disposition I make of the case, the proce- dural choice seems immaterial, and I. have con- sidered the entire record. 2: Resolutions There is no direct contradiction of the testimony of Burroughs and Newbrough. Their demeanor was persua- sive, and I credit them. Neither was there any direct contradiction of Dunphy's testimony. However, Dunphy testified with an unpersuasive demeanor and I do -not credit_ him.-. More- over, certain elements of Dunphy's testimony are incon- sistent with the undisputed facts. For example, Dunphy testified that Ferguson, did not report that 'Newbrough, as well as Newbrough's wife, was active for the Union In view of the evidence concerning Ferguson's March 22, 1983 conversation with Burroughs, it is simply illogi- cal that Ferguson 'would omit- reporting that Newbrough himself was active. I find that -Ferguson did .report that Newbrough was active- in the union campaign. In view of my ultimate disposition herein, it is unnecessary for me to resolve whether Dunphy testified otherwise in an effort to place some perceived distance .between Bur', " As to the last nem, no specific instance Was described, and Dunphy testified that such factor had been reported to him by Ferguson (Tr 199- 200) Ferguson did not testify 12 See Hillside Bus Corp, 262 NLRB 1254 (1928) " See Postal Service Board of Governors v Aikens, 103 S'Ct 1478 (1983) However, under Sec 102 41 of the Board's Rules and Regula- tions, a party does not waive an objection by further participation roughs and the person active for the Union for the pur- pose of insulating Burroughs' discharge, from a direct connection with a person active in the union campaign. ' Second, other grounds specified for opting against simply requiring Burroughs to sever the business rela- tionship seem to be afterthoughts added as makeweights Thus, Dunphy 'overextends himself by listing Burroughs' supervisory skills as a basis for the termination Murphy. did'write that Burroughs needed to "improve" in the areas of dealing with other supervisors, but his opinion that Burroughs had the potential to be a plant manager is a far cr'y from Dunphy's assessment that the deficiency of Burroughs was-so bad as to warrant a termination. Other than Dunphy's testimony about Ferguson's al- leged report, there is no record evidence of a conflict be- tween the work of B & N and the plant's work. Dunphy testified with an unpersuasive demeanor, and Burroughs (Tr. 128-130, 150-151) and Newbrough (Tr. 166-167) credibly denied that there was any interference. I find that Ferguson-did not report about any conflict. As for Burroughs' lack, of judgment in establishing a commercial venture with a subordinate, Dunphy failed to address the fact that both Murphy and Personnel Manager Barclay were aware of the situation in January. It did nOt:become an issue until 'Newbrough became a known .union activist. It is noteworthy that Dunphy gaye . no testimony that either Plant Manager Murphy or Per- sonnel Manager Barclay, or both, were discharged or reprimanded for , allowing Burroughs to go into the B & N business With a subordinate - In short, I find that but for Newbrough's union activi- ties, the most that would have happened would have been an order to Burroughs to ,sever his business rela- tionship with his subordinate. Although such a course had been strongly suggested to Burroughs, he was never ordered to sever his bUsiness relationship with New- brough._ It is clear, and I find, that the real reason Respondent terminated Burroughs was that given to Burroughs on Friday, March 25, by Plant Manager Murphy, that is, his outspokenness" and his business association with a known union organizer I find the "conflict of interest" ground to be a complete fabrication insofar as a termina- tion is concerned It could form the basis for an order to sever the business relationship, but that option was not chosen by Respondent. Thus, Burroughs was not termi- nated for insubordination in refusing to comply, for he was never ordered to comply. _ C Analysis and Conclusions The thrust of the General Counsel's case, although ini- tially appearing to be two-pronged, apparently has been merged into a single argument: A violation is established because Respondent interfered with the protected rights of employees- by diseharging statutory Supervisor Bur- roughs based on his business relationship with union ac- tivist Joseph R. Newbrough. The -legal theory, advanced 14 A euphemism, I find, for expressing a neutral position to his em- ployees on the union Issue, such as occurred on March 25, and to man- agement when questioned about his association with Newbrough CROUSE-HINDS CO 337 by the General Counsel in support of this contention, is the line of cases ,finding it unlawful for an employer to discharge a supervisor because of the union activities of an employee who is the spouse of the supervisor.. The parties dispute whether the Board impliedly overruled such cases by its June 23, 1982 decision in Parker-Robb Chevrolet, 262 NLRB' 402 (1982). At the hearing 'it appeared that the General Counsel was contending that Burroughs' discharge additionally was unlawful because he failed to "straighten out" New- brough. That is, that Burroughs failed to dissuade New- brough from his union activities and even refused to make such an attempt. It was clear at the hearing that such a theory, to be successful, required inferring that Personnel Manager Barclay meant that Burroughs should, if necessary, engage in illegal conduct to dissuade Newbrough This is so because the Board has long held that an employer is entitled to discharge a supervisor who fails to use lawful efforts in seeking to persuade em- ployees to cease their union activities. World Evangelism, 261 NLRB 609 (1982); Western Sample Book Co., 209 NLRB 384, 389-390 (1974); and Southwest Shoe Exchange Co., 136 NLRB 247 (1962) At page 8 of his brief, coun- sel for the General Counsel acknowledges this settled statement of the law. As for Barclay's remark, the Gen- eral Counsel does not argue that the evidence supports a finding that Respondent expected Burroughs to use un- lawful means to dissuade Newbrough The relevant complaint allegation, contained in para- graph 8, is in the conjunctive rather than the disjunctive. Paragraph 8 reads: Respondent engaged in the conduct described above in paragraph 7 because Burroughs's business partner, i.e , Respondent's statutory employee, joined, supported, or assisted the Union, and/or en- gaged in concerted activities for the purposes of collective bargaining, or other mutual aid or protec- tion, and in order to discourage employees from en- gaging in such activities or other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and in order to dis- courage employees from engaging in such activities, or other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. [Emphasis added.] It seems clear that the final clause of the allegation is an implied acknowledgment that it takes more than a dis- charge of an employee's supervisor-spouse to constitute a violation Thus, there must be a further finding that the discharge would interfere with the statutory rights of employees. We may now return to the debate of the application over Parker-Robb. When the General Counsel rested his case-in-chief, Respondent moved for dismissal (Tr. 174) As part of its argument in support of the dismissal motion, Respondent contended that Parker-Robb over- ruled the family relationship line of cases (Tr 179). Re- spondent relies on the Board's language in Parker-Robb overruling the "secondary or incidental effect" cases (262 NLRB at 404.) As earlier noted, I overruled the dis- missal motion. I did so on the basis that the statement by Personnel Manager Barclay conceivably could support a finding that Respondent discharged Burroughs because he failed to use, if necessary, unlawful means to dissuade Newbrough. In' Parker-Robb the Board further stated that the justi- fication for finding a supervisor's discharge to be unlaw- ful, and ordering his reinstatement, is grounded on the view that the discharge itself severely impinged on the employees' Section 7 rights. Examples of this would be when a supervisor is discharged for testifying at a Board hearing or ai a contractual grievance proceeding, or for refusing to commit unfair labor practices in order to 'disL suade employees from their union activities. ' In support of its argument that the supervisor-spouse employee cases are still viable, the General 'Counsel cites Operating Engineers Local 400, 265 NLRB 1316 (1982). The Board there, at footnote 1, cited with approval cases which reaffirmed the Board's position that "a supervisor discharged because he or she is the spouse of an employ- ee who has engaged in union or other protected activi: ties is entitled to reinstatement and backpay." That deci- sion issued some 6 months after Parker-Robb. Burroughs was not fired because Newbrough was a union activist. Such an action would be more in the nature of a discharge for failing to dissuade Newbrough from supporting the Union Burroughs was fired because he continued his business association with a union activ- ist. An incidental effect of such a termination might be one of discouraging employees from supporting a union. Respondent, as I have found, would not have taken any action against Supervisor Burroughs had he severed his business association with Newbrough Newbrough could have continued in his capacity as a union activist and Burroughs in his position as a general foreman had Burroughs withdrawn from the B & N business partner- ship. When Burroughs failed to do this, he was fired. While it is true that Plant Manager Murphy did not give Burroughs that option, it is clear from my earlier find- ings, including the March 22 remarks of James Ferguson, that such an option had been available and strongly sug- gested to Burroughs. However, Burroughs repeatedly declared that he would not sever his association with Newbrough. Does the option Supervisor Burroughs had call for dis- missal of the complaint? If we had a- spouse situation here, with a husband the supervisor and his wife an em- ployee and also a union activist, could an employer tell the supervisor that his wife can remain active for the union, but that the supervisor would have to terminate the relationship, i.e., divorce his wife? Such a choice in- directly places the employee-spouse in the untenable po- sition of learning that the price for his or her continued union activities would be either (a) a fired supervisor spouse or (b) a divorce. The General Counsel contends that the "rationale in these earlier spousal decisions seems to be that the effect of the discharge of the supervisor-spouse is a form of economic reprisal against the employee-spouse, since the income of one is part of the income of both" (Tr 8) From this the General Counsel argues that the discharge of Supervisor Burroughs because of the union activities 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his business partner, Newbrough, would reasonably tend to discourage employee Newbrough from engaging in union activities. "Thus," the General Counsel argues, "we see that the supervisor-partner's discharge operates as an economic repnsal against a statutory employee because of the stat- utory employee's union activities. The nature of the eco- nomic reprisal and the resulting coercive tendency is clear in the circumstances such as here, where Bur- roughs and Newbrough both engaged in a part-time busi- ness and the present and future viability of the business necessarily depended on the continued income of both partners." (Br. 8-9.) As the discharge of Burroughs, con- tinues the General Counsel, had the effect of economical- ly harming Newbrough, it then follows that the dis- charge of Supervisor Burroughs interfered with the Sec- tion 7 rights of Newbrough (and presumably, by exten- sion, with the Sec. 7 rights of all other employees) in violation of Section 8(a)(1) of the Act. Reinstatement of Burroughs, with backpay, is the appropriate remedy, concludes the General Counsel, in order to end the coer- cive effect of the discharge of Newbrough ' 5 as well as to convey to employees the extent to which the Act pro- tects Section 7 rights. In Consolidated Foods Corp., 165 NLRB 953, 959 (1967), the Board adoptea an analysis acknowledging the general rule to be that although a supervisor is not pro- tected from discharge because of his own union activi-, ties, there are three exceptions. First, that an employer may not discharge a super- visor if his defense is that he refused to commit an unfair labor practice for the employer. Jackson Tile Manufacturing Company, 122 NLRB 764, enfd. 272 F.2d 181 (C.A. 5). A second exception was estab- lished in the instance of a supervisor who gave evi- dence before the National Labor Relations Board. The third exception as spelled out in Golub Bros. Concessions, 140 NLRB 120, is where a supervisor is discharged because he or she is the spouse of an employee who has engaged in union or other pro- tected activities. Although the Sixth Circuit denied enforcement of the Board's order .calling for reinstatement of the supervisor discharged in Consolidated Foods, it did so on the facts and expressly without reaching the legal issue of whether the discharge of a supervisor is ever unlawful. Consoli- dated Foods Co. v. NLRB, 403 F.2d 662 (6th Cir 1968)._ In Golub Bros. Concessions, 140 NLRB 120 (1962), the Board adopted the following language (140 NLRB at 127): There is no merit to the first defense aforemen- tioned involving blanket immunity under the Act for the discharge of supervisory employees It is now well established that while an employer may demand the complete loyalty of his supervisors and may discharge those who participate in union activ- ity, the Act does not permit him to use this loyalty " In accordance with Operating Engineers Local 400. 265 NLRB 1316 (1982) . as a device for infringing upon the rights of rank- and-file employees. NLRB v. Talladega Cotton Fac- tory, Inc., 213 F 2d 208 (C.A. 5), Jackson Tile Manu- facturing Company, 122 NLRB 764, 767, enfd. 272. F 2d 181 (C.A. 5) A restraint on the exercise of employee rights is readily apparent where, as it is here claimed, the supervisor is discharged because she is the wife of an employee who has engaged in union or other protected activities. Brookside Indus- tries, Inc., 135 NLRB 16: Under these circum- stances, the rank-and-file employees of Respondents can "reasonably . . fear that the employer would take similar action against them if they continued to support the Union" Jackson Tile Manufacturing Co., stipra. In Jackson Tile Mfg. Co., 122 NLRB 764 (1958), enfd. per cunam 272 F.2d 181, (5th Cir. 1959), the Board wrote at 767: We also find, as did the Trial Examiner, that the Respondent violated Section 8(a)(1) by discharging John Scoggins, a supervisor, because he became re- luctant to commit further unfair labor practices on the Respondent's behalf. The Board has held that a discharge of a supervisor for refusing to commit unfair labor practices on behalf of his employer constitutes an invasion of the self-organizational rights of rank-and-file employees 5 This is so be- cause it demonstrates graphically to rank-and-file employees the extreme measures to which the of- fending employer will resort in order to thwart them in their desire to join or assist a labor organi- zation 5 Talladega Cotton Factory, Inc. 106 NLRB 295, enfd 213 F 2d 208 (CA 5) The Board did not expressly address the supervisor- spouse line of cases in Parker-Robb. And in the , subse- quent case of Operating Engineers Local 400, supra, the Board, in footnote 1, cited with approval Consolidated Foods and Golub Bros. and did not mention Parker-Robb. It therefore appears that the Board considers the supervi- sor-spouse cases a separate class distinguishable from the types of cases it overruled in Parker-Robb. Assuming, therefore, that the supervisor-spouse cases remain viable, does the rule of those cases apply here? First, what is the rationale of those cases? Is it the eco- nomic relationship of the supervisor and his or her spouse as posited by the General Counsel? Is it the fear of an economic loss, that is, loss of the supervisor- spouse's job and income, which reasonably tends to in- terefere with, restrain, and coerce employees in the exer- cise of their Section 7 rights ? Or is it also the special and ancient relationship of husband and wife and the public consideration that the statutory goals will be defeated, in part, if an employer is given the right to hold a threat of economic terrorism over a husband and wife when one is a supervisor and the other a rank-and-file employee? If the touchstone is that there is an economic relation- ship, then Burroughs and Newbrough qualify with their CROUSE-HINDS CO. 339 B & N operation. But if the special relationship of hus- band and wife is also part of the rationale, then the Gen- eral Counsel's argument fails as to Burroughs and New- brough. It appears to me that something more than an econom- ic relationship is part of the underlying rationale in the supervisor-spouse cases. That extra something can be de- scribed for our purposes here as the husband-wife rela- tionship." Consequently, the General Counsel's argu- ment fails. The only impact on Newbrough here would have been an economic inconvenience in his having to buy out Bur- roughs or sell his interest to Burroughs. That is a far cry from an employee being faced with the prospect of having to cease his or her union activities or face either (1) a discharged supervisor spouse with attendant eco- nomic loss to the family, or (2) a divorce. In short, the impact of Respondent's action here did not severely im- pinge on the Section 7 rights of Newbrough or other employees. I therefore shall dismiss the complaint 16 Whether that basis would include other family members, and even extend to fnends and "friends" are matters which need not be decided here CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2. IBEW Local 602 is a labor organization within the meaning of Section 2(5) of the Act 3. At all relevant times, Randolph C. Burroughs was a supervisor within the meaning of Section 2(11) of the Act. 4. By discharging Supervisor Burroughs on March 25, 1983, because Burroughs continued his part-time business association with employee and union activist Joseph R. Newbrough, Respondent did not violate Section 8(a)(1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The complaint is dismissed. 17 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses