Scientific-Atlanta, Inc.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scientific-Atlanta, Inc. and Local Union 1609 of the International Brotherhood of Electrical Work- ers, AFL-CIO. Case 10-CA-20139 19 February 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 1 November 1985 Administrative Law Judge John M. Dyer issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. 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 conclusions, but not to adopt the recommended Order.2 ORDER The National Labor Relations Board orders that the Respondent, Scientific-Atlanta, Inc., Norcross, Georgia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Demoting' or forcing the resignation of group leaders from that position for engaging in protected concerted activity. (b) Promulgating and enforcing rules restricting group leaders and employees from discussing em- ployee merit raises. (c) 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 Charlotte Stephens her former position as group leader or, if that job no longer exists, offer her a substantially equivalent position, with- out prejudice to her seniority or any other rights i At various points in the decision the judge inadvertently referred to Margaret Hall as Margaret Howell 2 We shall issue an Order, in lieu of that recommended by the judge, which conforms to the Board 's standard language and which includes provisions requiring the Respondent to remove from its files any refer- ence to Charlotte Stephens' demotion or forced resignation, and to pre- serve and make available records and documents necessary to analyze the amount of backpay due. Par. 1(a) of the new Order clarifies that section to provide that the Re- spondent is prohibited from demoting or forcing the resignation of group leaders for engaging in protected concerted activity, rather than if they engage in such activity We shall also issue a new notice to employees. or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of her unlawful demotion or forced resignation, in the manner set forth in the remedy section of the judge's decision. (b) Remove from its files any reference to the unlawful demotion or forced resignation of Char- lotte Stephens and notify her in writing that this has been done and that the unlawful action will not be used against her in any way. (c) Rescind the rule which restricts group lead- ers and employees from discussing employee merit raises. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at the facility where Charlotte Stephens was then employed copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 3 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 " 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union 278 NLRB No. 90 SCIENTIFIC-ATLANTA, INC 623 To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT demote or force the resignation of group leaders from that position for engaging in protected concerted activity. WE WILL NOT promulgate and enforce rules re- stricting group leaders and employees from discuss- ing employee merit raises. 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 Charlotte Stephens her former position as group leader or, if such job no longer exists, offer her a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and WE WILL make her whole for her loss of earnings and other benefits resulting from her -demotion or forced resignation, plus interest. WE WILL remove from our files any reference to the unlawful demotion or forced resignation of Charlotte Stephens and notify her in writing that this has been done and that the unlawful action will not be used against her in any way. WE WILL rescind the rule which restricts group leaders and employees from discussing employee merit raises. SCIENTIFIC-ATLANTA, INC. Ellen K Hapton, Esq., for the General Counsel. Richard A. Boisseau, Esq., and Richard R. Carlson, Esq., of Atlanta, Georgia, for the Respondent. Jeffrey P. Sweetland, Esq., of Riverdale, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge. Interna- tional Brotherhood of Electrical Workers, AFL-CIO (the Union) filed a charge on 17 April 1984 against Sci- entific-Atlanta, Inc. (Respondent). On 6 November 1984, the Region issued a complaint, amended on 5 April 1985, which alleges that Respondent violated Section 8(a)(1) of the Act by demoting employee Charlotte Stephens. Re- spondent's timely answer admits the commerce allega- tions, the status of the Union, and the fact that William Bauer was one of its supervisory agents. Respondent admits it required Charlotte Stephens to resign from her group leader position because Stephens told an employee about the promotions of three employees. Respondent claimed that Stephens had been instructed not to disclose the information, which it considered confidential to the promoted employees. Respondent denies it had violated the Act. This case was heard before me in Atlanta, Georigia, on 17 May 1985. The General Counsel and Re- spondent filed briefs which have been considered. On the entire record in this case I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Georgia corporation engaged in the manufacture and sale of telecommunications equipment at Norcross, Georgia. During, the preceding year, Re- spondent sold and shipped finished products, valued in excess of $50,000, to customers outside the State of Georgia. Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts Respondent employs over 3300 workers in 12 to 15 fa- cilities in the Atlanta area. It maintains a system of divi- sions which relate to specific types of products, the divi- sions are divided into subgroups which perform particu- lar types of work. Each subgroup has a nonsupervisory group leader who performs regular production work and keeps performance and attendance records. The group leader receives a wage differential for the position and while acting as liaison between the employees and the supervisor may also suggest that an employee is ready for promotion. It was stipulated that some supervisors had group leaders present when promotions were given while others did not. In Charlotte Stephens' group, employees were desig- nated as electrical assemblers A,. B, and C, although they all performed indentical work. Promotions were to be based on the individual's competency and ability and brought with it a pay raise in the wage range schedule. Thus there was a title change and the most important in- gredient was a wage raise. Charlotte Stephens began with Respondent as an elec- trical assembler C in 1977. By 1980, she was an A assem- bler and group leader under Supervisor Bill Bauer. In May 1982 Stephens transferred to' another area where she continued as an assembler and group leader. About a year later Bauer was transferred and became the supervi- sor of that group. In May 1983, just before Bauer's transfer, the group's supervisor promoted employee Diane Ashby from elec- trical assembler C to B. The group members protested the promotion, stating Ashby was unqualified and had been pushed ahead of qualified employees. Because the promotion continued to rankle the employees, Stephens arranged a meeting between the group and Bauer to dis- cuss what could be done. Bauer said he could not re- scind the promotion but promised that he would make 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promotions only on objective criteria and would be fair with them. Bauer had followed a practice of having his group leader present when he told individuals that they were being promoted. He had not tried to keep promotions secret in the past, stating that since his promotions were on an objective basis he would stand behind them and did not care if they were divulged. In individual meetings in November 1983, Bauer told employees Vera Daniel, Dorothy Needham, and Marga- ret Hall that they were being promoted from electrical assembler C to B. Stephens was present at each of the three meetings. Bauer reminded each of the employees of the problems experienced when Ashby had been promot- ed, and advised them not to announce their promotions to other employees as it might cause hard feelings and problems. He said he would not disclose the promotions and any disclosures would come from them. Bauer con- tended he told each employee that Stephens would not make any disclosures; Stephens claims Bauer said only that he would not disclose the information. None of the three employees recalls whether Bauer made any statements regarding nondisclosure by Ste- phens. The import of their testimony and the later ac- tions of Stephens indicate that Bauer's testimony may be more correct in that he was stating the promotions' con- fidentiality would be kept by himself and Stephens and that any breach of it was up to the promoted individual. However, resolution of this issue is not material to the outcome of this case. A day or two later employee Betty Nixon, who had been a vocal leader in a recent organizing campaign, asked Stephens if any employeees had received promo- tions. Stephens told Nixon of the three promotions. Shortly after making the disclosure, Stephens informed employees Daniel and Needham of it. Stephens claims she informed Hall but Hall remembers learning of the disclosure "through the grapevine." Stephens testified she told these employees of her disclosure to protect them from being blamed for something she had done. Margaret Howell testified that Bauer advised her not to tell fellow employees of the raise because of the prob- lems that came up before (the Ashby incident). Howell told Bauer, after Stephens' disclosure, that she had not disclosed receiving the raise; stating she did so since she wanted Bauer to have confidence in her, that she would do as he advised. Dorothy Needham testified that she did not tell other employees about her raise because she did not want her supervisor to get mad at her, but she made .no such state- ment other than at the trial. The next morning Stephens informed Bauer of her ac- tions; this was Bauer's first notice of Stephens' disclo- sure. Later that day, Bauer called Stephens to his office and said she had "violated confidences" of her fellow employees and of himself and she must either resign or be demoted from her group leader position. Stephens later signed a typed resignation letter proffered by Bauer. Although the letter states that Stephens' resigna- tion was based on her dislike of group leader responsibil- ities, there is no question but that her resignation was re- quired as a direct result of her disclosure of the promo- tions and wage increases. B. Positions, Discussion, and Conclusions Respondent urges three reasons to support its conten- tion that the demotion of Stephens was not in violation of the Act. First, Respondent contends that the conver- sation between Stephens and Nixon, lacking any demon- strated purpose, does not constitute concerted activity. Next, Respondent says its rule prohibiting third-party discussions of employee "promotions" was based on sub- stantial and legitimate business justifications which out- weigh any Section 7 interests employees might assert for engaging in such discussions. Finally, Respondent con- tends that Stephens violated her supervisor's trust by dis- closing information she received while in a confidential status. The Board has stated that "to find an employee's act to be `concerted' we shall require that it be engaged with or on the authority of other employees, and not solely by and on behalf of the employee himself." Meyers Indus- tries, 268 NLRB 493, 497 (1984), enf. denied 755 F.2d 941 (D.C. Cir. 1985). In Meyers, the Board, tracing the history of the definition of concerted activity, - empha- sized that Section 7 protection extends to concerted ac- tivity which "in its inception involves only a speaker and a listener," 268 NLRB at 494, quoting Root-Carlin, Inc., 92 NLRB 1313 (1951). Such speech must have "some re- lation to group action in the interest of the employees." Atlanta Newspapers, 264 NLRB 878, 879 (1982), quoting Signal Oil & Gas Y. NLRB, 390 F.2d 338 (9th Cir. 1968). As the Board noted in Atlanta Newspapers, "employee speech . . . is often an essential means of achieving group goals and to deny protection of this type of activi- ty would nullify the rights guaranteed by Section 7 of the Act." 264 NLRB at 879. In Atlanta Newspapers, the protected speech was of an employee to a supervisor, where the employee, who did not support a possible strike, mentioned a rumor that a strike was imminent. In the present case it is conceded that Stephens intend- ed to pursue no further group action by making the remark to Nixon. However, we do not know what were the intentions of Nixon who was the initiator and other party to the conversation. Stephens' intentions, however, are unimportant. The question is only whether the con- versation had "some relation to group action in the inter- est of the employees." The topic of the conversation was the promotion and wage increases of three employees. The prime impor- tance of the promotions, as testified to by employees is that they got a wage increase. The Board has held that Section 7 "encompasses the right of employees to ascer- tain what wage rates are paid by their employer, as wages are a vital term and condition of employment." Triana Industries, 245 NLRB 1258 (1979). Certainly Nixon was interested in this information., That group action by Nixon and Stephens was not a part of this con- versation is unimportant. It is well settled that "group action is not deemed a prerequisite to concerted activity for the reason that a single person's action may be the preliminary step to acting in concert." Salt River Valley SCIENTIFIC-ATLANTA, INC. 625 Water Users Assn., 99 NLRB 849, 853 (1952). In those cases where an employee discussion or action involving wages has not been found concerted activity, the em- ployee was engaged in an individual wage protest of some form. Such is clearly not the case here. According- ly, the conversation between Stephens and Nixon, dis- cussing the wage rates paid three other employees, was concerted activity within the meaning of Section 7. Respondent correctly asserts that not all concerted ac- tivity is protected. The Board has held that Section 7 rights may be outweighed by aan employer's substantial and legitimate business justifications. International Busi- ness Machines Corp., 265 NLRB 638 (1982). Respondent claims that its nondisclosure rule has such justification. Respondent's contention rests on its statement that dis- closure of employee raises could lead to friction among its employees. In reality the question is not one of friction or conflict between employees, as Respondent's brief suggests, and as Bauer stated, but rather resentment and possible con- certed action against Respondent and its supervisors if the employees deem the promotions and wage raises to be undeserved. This is what happened in the Ashby inci- dent and this is what Respondent's supervisor Bauer sought to avoid by his injunctions to the employees. Clear Board law compels a finding that this Employ- er's statement of its interest is insufficient to outweigh employee Section 7 rights concerning wages, probably the most critical element in employment. The rationale against Respondent's contention was clearly expressed in Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976): "dissatisfaction due to low wages is the grist on which concerted activity feeds. Discord generated by what employees view as unjustified wage differentials also provides the sinew for persistent concerted action. The possibility that ordinary speech and discussion over wages on an employee's own time may cause 'jealousies and strife among employees' is not a justifiable business reason to inhibit the opportunity for an employee to ex- ercise Section 7 rights." The confidentiality bar issued by Bauer was a newly imposed rule to prevent a problem he had experienced before (the Ashby incident) when no confidentiality bar existed. There the knowledge of a wage raise triggered a concerted protest by the employees and it was exactly this type of concerted activity that Bauer sought to fore- close if the employees did not agree with his promotions and wage raises. Respondent's business justification argument is further, and critically, weakened by its failure to establish a com- panywide rule prohibiting wage discussions. Obviously, if Respondent found that its business required lack of dis- course concerning employee wages, it would have taken steps to insure such silence and been able to provide il- lustrations illuminating that necessity. Here, supervisors had the option of permitting or discouraging employee wage discussions. "Substantial" business justifications would require otherwise. See IBM above. Further, there is no company confidentiality rule here. Also see Statler Industries, 244 NLRB 144, 146 (1979). Respondent's brief asserts the confidentiality of person- nel files but such is not applicable in the present situation since we are not dealing with personnel files. It is clear from the testimony of Howell and Needham that they sought to accommodate Bauer's desires. Ste- phens' testimony that she told Bauer she had made the disclosures so that Bauer would not blame the individ- uals, further emphasizes the deference the employees felt they must pay to Bauer's "wishes." Where, as here, supervisors request employees not dis- cuss their wages, employers act in violation of Section 8(a)(1) of the Act. As noted in W. R. Grace Co., 240 NLRB 813, 816 (1979), "as a supervisor's `request' or ex- pression of `preference' that an employee comply with a policy of confidentiality nevertheless implies that em- ployees run the risk of supervisory displeasure and possi- ble adverse consequences for noncompliance to a degree sufficient to constitute ' interference, restraint, and coer- cion under the Act." Accordingly, I find that Bauer's re- quest that employees not discuss their merit raises amounts to an employer rule lacking substantial and le- gitimate business reasons for its promulgation and that it violates Section 8(a)(1) of the Act. In the circumstances of its promulgation I find that it is not an isolated viola- tion, particularly where a breach of it was made the basis for discipline. Lastly, Respondent contends that Stephens' actions, even if otherwise protected, so violated the confidences required of a group leader as to justify her demotion from the position. In general, where an employee has been given custody of certain information, and breaches the employer's trust that such custody will remain only with the employee, the employee may be removed from the position of trust. Clearwater Finishing, 100 NLRB 1473 (1952). Where, however, an employee divulges information which was obtained in the "normal course of work activity and as- sociation," the employee's actions are protected. Ridgely Mfg. Co., 207 NLRB 193, 197 (1973). Here, Stephens' knowledge of the merit raises accrued to her due to her position as a group leader. Stephens was not a "confidential employee" within the meaning of the Act nor a supervisor. She was a rank-and-file em- ployee' with some extra duties for which she received compensation. As Bauer stated, one function of a group leader was to act as liaison between the supervisor and the group em- ployees. During Bauer's supervisory tenure, Stephens had clearly acted in such a fashion. It was Stephens, re- laying information between Bauer and the employees, who had set up the meeting concerning the Ashby raise. Acting in the same forthright manner, Stephens respond- ed directly to Nixon's questions regarding the three raises. Board law clearly gives employees the right, absent circumstances not present here, to determine an employ- er's wage rates. In this case it is impossible to find that Stephens had some special custody of wage information. To find otherwise would allow Respondent to effectively prevent group leaders, who it is agreed are rank-and-file employees, from engaging in concerted activity. For the 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sake of argument it is true that Respondent could prohib- it group leaders from disclosing validly confidential in- formation which they might receive because of their spe- cial responsibilities, but such is not the case here and Re- spondent cannot prevent employees from discussing topics as critical to general employee interests as wages. Accordingly, Stephens had no custodial interest in the wage information and her disclosure of the wage raises violated no special confidences. Moreover, finding, as I have above, that Bauer's rule was an impermissible action violative of Section 8(a)(1), the breaching of that rule by Stephens cannot be made the subject of punishment by Respondent. Stephens was not in any capacity which would allow Respondent to enforce an illegitimate rule against her. I find that Respondent violated Section 8(a)(1) of the Act by its 30 November 1983 enforced resignation or de- motion of Charlotte Stephens from the position of group leader. CONCLUSIONS OF LAW By the acts described in section II, above, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act and thereby has engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist from such practices and take certain af- firmative action designed to effectuate the policies of the Act. Respondent having demoted or forced the resignation of Charlotte Stephens from her position as group leader, it must offer her reinstatement to that position and make her whole for the loss of earnings she suffered in the in- terim (see F. W. Woolworth Co., 90 NLRB 289 (1950)), adding to such amount, on a quarterly basis, interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]