L. G. Williams Oil Co., Inc.

418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD L. G. Williams Oil Company, Inc. and Natalie Jean Ballard. Case 16-CA-10444 31 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 22 October 1982 Administrative Law Judge Richard H. Beddow Jr. issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. 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, l and conclusions, to modify the remedy, 2 and to adopt the recommended Order as modified.3 The judge found, and we all agree, that the Re- spondent's blanket rule prohibiting all salary discus- sions, which it first promulgated to its employees after employee Ballard began the salary discussions for which she was discharged, is unlawful. We also all agree that Ballard's conduct was concerted. The dissent, however, insists that it was unprotected. Although the Board and courts have recognized that an employer can have an interest in the confi- dentiality of information that can be balanced against employee rights, the dissent misconstrues the case law by stretching a recognition of an em- ployer interest in certain circumstances into a pre- sumption that employee discussion of wages other than their own is unprotected. An employer has no obligation to provide employees information that is presumptively relevant to organizational purposes.4 If an employer chooses, for lawful reasons, it can treat the sought after information as confidential and prohibit its general dissemination.5 If an em- i In agreeing with the ,fudge's finding that Ballard's conduct was pro- tected concerted activity we do not rely on Alleluia Cushion Co., 221 NLRB 999 (1975), and its progeny cases, which the judge relied on as an alternative basis for his finding. See Meyers Industries (Meyers II), 281 NLRB 882 (1986) 2 Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U.S.C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 3 The judge included a broad cease-and-desist provision in his recom- mended Order We believe a narrow provision is appropriate under the standards of Hickmott Foods, 242 NLRB 1357 (1979), and we have modi- fied his recommended Order accordingly We have also 'modified the no- tice's cease-and-desist provision relating to Ballard's discharge to conform with the judge's recommended Order and our finding. 'i Gray Flooring, 212 NLRB 668 (1974). 5 But see Jeannette Corp, 217 NLRB 653 (1975), affd 532 F 2d 916 (3d Cir. 1976) ployer treats information such as wages as confi- dential, then the Board weighs the interests of the employees in learning and discussing each other's wages against the employer's legitimate interests in support of its policy.6 If, however, an employer does not treat the information as confidential, an employee who comes across the information openly or in the regular course of her work may use the information for self-organization with the protection of the Act.7 In contrast, where informa- tion is surreptitiously gained," or disclosure of the information is a breach of the employer's trust or unrelated to a protected interest, 9 the employee's conduct is unprotected. The facts relevant to the protected nature of Bal- lard's conduct are as follows. There is no evidence that before 11 February 1982, the Respondent's management had informed its employees that it considered wage information to be confidential. On 11 February, in the regular course of her work, Ballard received for the purpose of typing, a letter offering a job at a specified salary to a prospective employee. If Land Manager Stockton, the author of the letter, had any desire to keep the contents of the letter confidential, there is no evidence that he communicated it to anyone, including Ballard. Bal- lard considered the salary offer to be unfair and communicated this to other employees. In this regard, Ballard's conduct was far from surrepti- tious. The first person Ballard spoke to was Oper- ations Administrator Smith. Thereafter, Ballard spoke to Stockton; the president of the parent com- pany; the manager of investor relations; and the vice president of operations. Ballard also spoke to other clerical employees about the perceived un- fairness of the offer, at least one of whom was also concerned about a new employee being offered more than current employees. As more fully discussed in the judge's decision, Ballard was not immediately terminated but trans- ferred to another department. At the end of March, Stockton sent an incident report regarding the ear- lier confrontation to Ballard's personnel file. Bal- lard replied with a memo directed to various com- pany officials. Ballard was then placed on a 4- month leave-of-absence with a 31 July termination date. The judge found that in response to Ballard's 6 International Business Machines Corp (IBM), 265 NLRB 638 (1982); compare-Texas Instruments, 247 NLRB 253 (1980), enf denied 637 F 2d 822 (1st Cir 1981). T Gray Flooring, supra, Ridgely Mfg. Co, 207 NLRB 193 (1973), Macomb Daily, 260 NLRB 983 (1982) 8 Macomb Daily, supra; NLRB Y Florida Steel Corp, 544 F 2d 896 (5th Cir 1977) 9 Vitronic, Inc, 183 NLRB 1067 (1970), Bell Federal Savings & Loan, 214. NLRB 75 (1974); Clinton Corn Processing Co, 253 NLRB 622 (1980); Montgomery Ward, 146 NLRB 76 (1964), American Book-Stratford Press, 80 NLRB 914 (1948) 285 NLRB No. 48 L. Cr. WILLIAMS OIL CO. claim for unemployment compensation, the Re- spondent stated that she had been terminated be- cause of her discussion of salaries. The Respondent also asserted several other reasons for Ballard's ter- mination to the judge.10 The judge, applying a Wright Line' I analysis, determined the other assert- ed reasons were secondary justifications and that Ballard would not have been terminated but for her protected concerted activity. We agree with the judge that Ballard's conduct was protected as well as concerted in the circum- stances of this case. As there is no evidence that the Respondent told its employees before Ballard's wage discussion that it considered wage informa- tion confidential, and there was nothing about the letter to indicate to Ballard that it was confidential, this case is far removed from IBM or Texas Instru- ments, supra, cited by the dissent. In both of those cases the employers had developed confidentiality programs and communicated them to their employ- ees. Further, in both IBM and Texas Instruments the information the employees disseminated was clearly marked as confidential. The fact that Bal- lard learned what the prospective employee was to be offered through the normal course of her work also distinguishes this case from the surreptitious methods found objectionable in Macomb Daily and NLRB v. Florida Steel, supra. Finally, Ballard's open discussion of the fairness of the wage offer with other clericals was clearly related to her and the clericals' Section 7 rights and were not inimical to the Respondent's interests. Thus, the case is distinguished from those cited in footnote 7, supra. As the Board stated in IBM, 265 NLRB at 638: The Administrative Law Judge noted that [an errlployee's] distribution of wage data would, under ordinary circumstances, consti- tute protected concerted activity. We agree. It is well established that discussion of wages is an important part of organizational activity. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, L. G. Williams Oil Company, Inc., Okla- homa City, Oklahoma, its officers, agents, succes- 10 The dissent asserts that "[tlhe Respondent has established that it dis- charged Ballard for revealing to employees the salary of another employ- ee-information that the Respondent considered confidential" and that Respondent's discharge of Ballard "for this breach of confidentiality was therefore lawful." However, not only did the Respondent not establish that it discharged Ballard for revealing confidential information, it explic- itly disavowed confidentiality as a reason in its exceptions 11 Wright Line, 251 NLRB 1083 (1980) 419 sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(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. Substitute the attached administrative law judge. notice for that of the CHAIRMAN DOTSON, dissenting. I do not agree with my colleagues' adoption of the judge's finding that the Respondent's discharge of employee Natalie Jean Ballard violated Section 8(a)(1) of the' Act.' Although I find Ballard's ac- tivities to be concerted, I also find them to be un- protected, thereby rendering lawful her discharge for those activities. The credited evidence reveals that on 11 Febru- ary 1982, Ballard, whose job duties including typing, typed a letter from her supervisor, Land Manager Jack Stockton, to a prospective employ- ee, Cindy Brown. The letter offered Brown a job similar to Ballard's but at a higher salary. Ballard, who was quite upset at learning that the new em- ployee would make more money than she, con- fronted various management officials, including Stockton, about the letter. In addition, she dis- cussed the letter with several other clerical em- ployees, advising them that she thought the salary offer to Brown was unfair, After Ballard's confrontation with Stockton, which became very heated, Stockton recommend- ed to his supervisors that Ballard be terminated as he felt he could no longer effectively work with her. They decided, however, not to terminate Bal- lard and advised Stockton to attempt to work out his problems with her. 'Stockton wrote out a report of his confrontation with Ballard, but he did not have it typed and placed in her personnel file in an attempt to smooth his relations with her. Ballard continued to complain to management officials and employees about Stockton,and his job offer to Brown, and to ease the tension between Ballard and Stockton, Investor Relations Manager Brenda Kendall arranged a transfer for Stockton in early March to the Investor Relations Department. Several weeks later Stockton heard that Ballard was spreading rumors that the Land Department was going to be reorganized and that some em- ployees, including Stockton, would be terminated. Stockton then had typed his report of his 11 Febru- I I do, however, agree with their adoption of the judge's finding that the Respondent's maintenance and enforcement of an unqualified rule against the discussion of wages or salaries violated Sec 8(a)(1) 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ary confrontation with Ballard and sent the report Accordingly, I would dismiss the complaint in its to her personnel file, with a copy to Ballard. Ballard, discussed Stockton's memorandum with other employees, and on 1 April distributed a reply memo to various management officials. When Ken- dall received Ballard's memo, she decided to termi- nate her for continuing her disruptive criticism of Stockton and his job offer to Brown. Kendall placed Ballard on a 4-month leave of absence with a 31 July termination date. The judge found, and I agree, that the motivat- ing factor in Ballard's discharge was her course of conduct in protest of the Respondent's offer to a prospective employee of a salary higher than hers. I also find that such salary discussions between em- ployees constitute concerted activity. See Mush- room Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964). The inquiry, however, cannot stop at this junc- ture. It is axiomatic that activity must be protected, as well as concerted, to be afforded the protection of the Act. The Respondent has established that it dis- charged Ballard for revealing to employees the salary of another 'employee-information that the Respondent considered confidential and entrusted to Ballard only so that she could perform her job of typing the letter. The Board and the courts have consistently recognized an employer's legitimate business interest in the confidentiality of such infor- mation.2 The Respondent reasonably expected that the wage information contained in the letter to Brown would not be divulged by Ballard to other employees. Nor were there any circumstances sur- rounding Ballard's receipt of the letter to type that would reasonably lead Ballard to conclude that the information contained in the letter was not confi- dential or that the Respondent would not object to her discussing it with other employees. Under these circumstances, I find that Ballard was not privi- leged to divulge the confidential information per- taining to Brown's salary to other employees, and the Respondent's discharge of Ballard for this breach of confidentiality was therefore lawful.3 2 See International Business Machines Corp, 265 NLRB 638 (1982), Macomb Daily, 260 NLRB 983, 985-986 (1982), Texas Instruments v NLRB, 637 F2d 822 ( 1st Cir 1981 ), Clinton Corn Processing Co, 253 NLRB 622, 625 (1980), NLRB v Florida Steel Corp , 544 F 2d 896, 897 (5th Cir 1977), Bell Federal Savings & Loan, 214 NLRB 75, 78 (1974); Fitromc Inc, 183 NLRB 1067, 1076-1081 (1970), Montgomery Ward, 146 NLRB 76, 77-79 ( 1964), American Book-Stratford Press, 80 NLRB 914, 917, 934-936 (1948) 3 The Respondent's discharge of Ballard is not rendered unlawful merely because of the existence of the Respondent's unlawful rule against the discussion of wage or salaries To begin with , Ballard's misuse of the confidential information predated the Respondent's promulgation to em- ployees of the unlawful rule and thus, the discharge was not prompted by the rule In any event , the unlawful rule does not convert Ballard's un- protected activity to protected activity The rule violated the Act be- entirety.4 cause it is overly broad, reaching all employee discussion of wages, some of which is protected by Sec 7. That does not mean that every wage discussion is protected activity Jeannette Corp. Y. NLRB, 532 F 2d 916, 198 (3d Cir. 1976) Thus, I find that the Respondent discharged Ballard for this unprotected activity, despite the existence of the unlawful rule. 4 My colleagues avoid ruling on the confidential nature of the informa- tion divulged by Ballard by merely noting that the Respondent in its ex- ceptions disclaimed confidentiality as the reason for the discharge How- ever, the judge found, and my colleagues and I agree, that the reasons advanced by the Respondent for Ballard's discharge were pretextual. Under these circumstances, the Board must determine from the record as a whole whether the conduct that provided the real reason for Ballard's discharge, i.e., her conversations with other employees over the higher salary offered to a prospective employee, constituted both protected and concerted activity As discussed above, the record here demonstrates that Ballard's conduct was not protected Thus, the General Counsel did not establish a violation of the Act, as a necessary element of that violation is missing. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge you, or otherwise dis- criminate against you, because of your concerted, protected activities. WE WILL NOT maintain or enforce any unquali- fied rule or policy that prohibits you from discuss- ing salaries or wage rates among yourselves. 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 Natalie Jean Ballard immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits,resulting from her discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the leave of absence and discharge of Natalie Jean Ballard on 1 April 1982 and 31 July 1982, respec- tively, and WE WILL notify her that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel ac- tions against her. L. G. WILLIAMS OIL COMPANY, INC. L. G. WILLIAMS OIL CO 421 Kim Siergert, Esq., for the General Counsel. Peter T. Van Dyke, Esq., of Oklahoma City, Oklahoma, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Oklahoma City, Oklahoma, on August 5, 1982. The proceeding , is based on a charge filed May 7, 1982, by Natalie Jean Ballard, an individual. The General Counsel's complaint alleges that Respond- ent Williams Oil Company, Inc., of Oklahoma City, vio- lated Section 8(a)(1) of the National Labor Relations Act by terminating the Charging Party because of her pro- tected concerted activity of discussing salaries among employees and because she contacted the Equal Employ- ment Opportunity Commission. Briefs were filed by the General Counsel and Re- spondent. On a review of the entire record in this case and from my observation of the witnesses and their de- meanor, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent engages in the business of oil and gas ex- ploration and development . During the past 12-month period, it had a direct outflow in products and services in excess of $50,000 to points outside of Oklahoma and admits that at all times material it has been an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II, THE ALLEGED UNFAIR LABOR PRACTICE The Respondent maintains office facilities in Oklahoma City. On October 4, 1981, Natalie Ballard was hired by Land Manager Jack Stockton, as a Land secretary train- ee. Her salary was $1350 per month. Ballard successfully completed her 90-day probationary period as reflected in her performance review, which was prepared by Stock- ton in January ' 1982. Ballard told Stockton at her job interview that she was not interested if the job just en- tailed typing, filing, and answering the phone. She ex- pected her duties to include preparation of lease assign- ments, correspondence, and other related functions; how- ever, she felt that she was not being given much nonrou- tine work to do and was not receiving much training and she displayed an'attitude of open dissatisfaction to other employees about the managerial abilities of her supervi- sor, Stockton. On February 11 Ballard typed an offer of employment to a Cynthia Brown. Although Respondent contends that she presumed to prepare the letter on her own, Ballard credibly testified that it was given to her to type by Sandy Williams, Stockton's secretary. After reading the letter, Ballard became upset over the fact that the offeree was being offered a higher salary for the same position.' 1 Brown's resume shows that she had experience in oil and gas matters and was a college graduate, whereas Ballard was not. It also was devel- oped that Ballard's normal salary review would have led to an increase in She then discussed the situation with Operations Admin- istrator LaDonna Smith. Ballard credibly testified that Smith told her to lower her voice because "she didn't want her girls to know it because they didn't make as much as the Land Department secretaries, and they might be upset by it." Smith went out to advise Ballard that discussion of salaries was a violation of company policy. Ballard's testimony concerning this conversation is basically corroborated by Smith's memo to Ballard's personnel file. Later that day Ballard confronted Stockton with the letter and a heated, profane discussion ensued, in which Ballard related that the offer was unfair. Stockton ad- vised her that the letter would go out as written. Over the course of the next several days Ballard also spoke with Jim Meyers, president of Matrix Energy, which at the time relevant hereto was a parent company to Re- spondent, Manager of Investor Relations Brenda Ken- dall, and Vice President of Operations Bob Foster and reasserted her opinion that the salary offer was unfair. In addition to the supervisors, Ballard also discussed the sit- uation with other clerical employees including Sandy Williams, Tamra Renfro, and Melissa Lauderdale. Immediately after the confrontation over the Brown letter, Stockton felt that he could no longer work effec- tively with Ballard, and concluded that he wanted to ter- minate her. He discussed the matter with Bob Foster, his superior, and was advised that he should try to work the problem out with Ballard, and that terminating her would not be appropriate. Stockton prepared a handwrit- ten incident report and placed it in his credenza. It was not typed and sent to Ballard's personnel file because it was his belief that formalization of that document at that point would have been inconsistent with the directions he had been given by Foster. After the February 11 confrontation, Ballard contin- ued to complain about Stockton and the unfairness of the offer to Brown. Kendall suggested a way out of Stock- ton's department by offering Ballard the opportunity to help the Company's geologist for a short time, and there- after to transfer to the investor relations department. In early March, Ballard transferred to the investor relations department and was thereafter supervised by Kendall who advised her to put the past incident with Stockton behind her. Stockton's handwritten incident report was typed in the latter part of March after Stockton heard that Bal- lard was spreading rumors to the effect that the land de- partment was going to be reorganized and some employ- ees, including Stockton, would be terminated.2 The her own salary to the basic level of Brown's offer Otherwise, however, the reasonableness of Ballard's or Respondent 's belief in the fairness of their respective positions is not material 2 Ballard had been told by Vice President for Administration and Fi- nance Bob Lathrop in response to her question about Stockton that some reorganizational changes were planned and that "none of us, including myself, had a-were irreplaceable as far as the company was concerned. Any of us could be. Nobody knew what the situation would be six months, a year from now or three years from now " He further told her that the Company was pleased with Stockton and thought he was doing a good job 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD memo was sent to Ballard's personnel file, with a copy to her. Ballard received a copy of the memo dated Febru- ary 11, 1982, on March 26, 1982. The memo summarized the February 11 incidents and stated Stockton's position that Ballard's actions constituted justification for termina- tion with cause. In a portion of the memo Stockton, states that: "Various employees in Land and Production told me immediately after the confrontation that she had disclosed to them the terms of the offering letter." Bal- lard then discussed the situation again with several other employees, and also went to the Equal Employment Op- portunity Commission (EEOC) on March 30, 1982, and completed an intake questionnaire. On April 1, 1982, Bal- lard distributed a reply memo to a number of company officials. Courtesy copies of this memo were sent to Stockton, Stockton's personnel file, Ballard's personnel file, and to the EEOC. Shortly after the memo was picked up through the interoffice mail. Director of Office Administration Lynette Jernigan brought a copy of Ballard's memo and its attachments to Kendall. Ken- dall testified that she decided that she had had enough. She had heard that Ballard was telling others about a complete reorganization and that Ballard was continuing her disruptive talking about her situation with Stockton. She concluded that such conduct was insubordinate and that Ballard should be terminated. Ballard was called into Kendall's office. Ballard was then placed on a 4- month leave-of-absence with a July 31 termination date. Ballard testified that during the discussion with Ken- dall, Kendall mentioned the EEOC notation and stated that Ballard's discussion of salary was against company policy and a justification for termination. Kendall testi- fied that Ballard had brought up the subject of her con- tact with the EEOC and Kendall denied that it was a reason for termination. Kendall also denied that she ad- vised Ballard that "salary discussions" were the reasons for termination. Subsequent to her being placed on leave-of-absence Ballard filed a claim with the Oklahoma State Employ- ment Service. In a response filed April 12, 1982, Re- spondent's director of office administration, Jernigan, stated: "Discussion of salary is a violation of company policy and grounds for immediate termination." In an at- tached memo dated April 6, 1982, Foster noted: "I stated to Natalie that any employee who discussed salary was in violation of company policy." In addition, Operations Administrator Smith in an attached memo dated April 7, 1982, stated, "I warned her she had better `watch her step' because discussing salaries was grounds for termina- tion" and "I reminded our staff that discussing salaries was grounds for dismissal and instructed them to avoid becoming involved in any conversations of this nature." At the hearing Stockton testified that he could have possibly stated to employees that it was in "poor taste" to discuss salaries or wage rates. Kendall admitted that she advises employees "against it because I think that is ,your own personal business." Smith specifically admitted that it was her understanding that discussion of salaries was against company policy and that she told Ballard this. Jernigan, who set forth the policy statement in the April 12 letter to the employment service, explained at the hearing that she actually meant to refer to the spreading of confidential information, not the discussion of salaries in general. Employee Melissa Lauderdale, however, testified that she was specifically told that em- ployees were not to discuss salaries . This policy was not relayed to the employees in writing. Respondent presented a significant amount of evidence relating to various other justifications for Ballard's termi- nation. Specifically, the termination letter given to Bal- lard on April 1, 1982, stated that she was terminated be- cause of "disruption of practices and policies of the Company." As noted, Kendall assumed responsibility for the termination decision, when asked what led to her de- cision to terminate, Kendall referred to the performance of Ballard's work "before the Cindy Brown letter." Re- spondent also presented evidence that Ballard disliked menial tasks, did not answer the telephone properly, often expressed her dislike of Stockton, made mistakes in assignments during training, and was a chronic complain- er, and that she was having emotional problems related to her pregnancy and unmarried status. Ballard, howev- er, was given no reprimands because of her job perform- ance and Ballard's January 1982 3-month performance review by Stockton mentions no such problems. It is oth- erwise favorable towards Ballard and it recommends her retention and permanent status. And, after January 1982, no written reprimands or warnings were given to Ballard relating to disruptive behavior other than the belated dis- tribution on March 26, 1982, of Stockton's February 11 memo. At the time of the termination Respondent had no progressive disciplinary system , but it instituted one subsequently. It also had no written policy regarding the conditions under which employees could engage in con- versation with other employees during working hours. Further testimony was developed relative to Respond- ent's salary review board, of which Vice President Lath- rop is a member, along with Foster and Kendall. Lath-, rop testified that the Stockton-Ballard conflict of Febru- ary II was brought to their attention by Foster. There was a discussion over whether to terminate Ballard at that time and it was decided that they would like to ter- minate her; however, her pregnant condition was consid- ered as a contributing factor to the blowup and Stockton was told that maybe it could be resolved and that "we" would just sit tight. Lathrop took no further action but thought that there was a consensus that Stockton or Foster would speak to her about the matter. The review board made no attempt to further investigate the matter or to interview Ballard or Stockton; however, Lathrop later discussed some details of the matter with Stockton. Sometime after the review board's discussion Lathrop had the above-noted conversation with Ballard in which he told her the Company was in a state of change. Kendall's earlier testimony also mentioned a meeting of the salary review board about February 20, 1982. Kendall remembered the reaching of a decision not to terminate Ballard because of her pregnancy. She also tes- tified that once she decided to terminate Ballard (appar- ently on April 1), that she told Foster and Meyers of her plans and that they agreed with her and told her to go ahead and do it. L. G. WILLIAMS OIL CO. 423 III. DISCUSSION The issues in this case are whether Respondent main- tained a rule prohibiting discussion of salaries among em- ployees in violation of Section 8(a)(1) of the Act and whether Respondent engaged in an unfair labor practice in violation of the Act by terminating the Charging Party because she engaged in a protected concerted ac- tivity by discussing salaries with other employees and be- cause she filed a complaint with the EEOC. Although Ballard did file an EEOC complaint, this fact, standing alone, falls far short of showing that it had anything to do with her termination and I conclude that Ballard was not terminated because of her action in this regard. A. The Rule Against Salary Discussions During the course of the hearing certain differences in testimony occurred; however, for the most part they relate to nonmaterial matters such as the actual terms or use of profanity and I conclude that . the conflicts do not adversly affect the credibility of any witness . Kendall denied Ballard's testimony that one of the reasons given to Ballard for her termination was the fact that she was discussing salaries and Kendall did not recall that the subject was discussed at that time; however, it is clear that Ballard's memo with attachments was part of the discussion. In any event, I conclude that it otherwise is adequately established by the testimony of other wit- nesses that Respondent in ,fact did have a policy and un- written rule regarding the discussion of salaries. Ballard's understanding of this policy clearly is cor- roborated by Operations Administrator Smith who un- equivocally testified that it was her impression that there was a rule against discussing salaries, and she so advised Ballard. Employee Lauderdale also testified that she was specifically told that employees were not to discuss sala- ries. Although Respondent asserts that no such rule or policy existed, both Land Manager Stockton and Manag- er of Investor Relations Kendall admit that they advised employees against it. Moreover, Director of Office Ad- ministration Jernigan specifically stated in her memo to the Oklahoma State Employment Service that "Discus- sion of salary is a violation of company policy." Al- though she attempted at the hearing to qualify that writ- ing by saying she meant to refer to "confidential infor- mation" rather than "salary," such an interpretation is re- futed by the written statement of Vice President Foster that he told Ballard "that any employee who discussed salary was in violation of company policy." Clearly, the implication' that an employee can be disci- plined for violation of an unqualified rule against discuss- ing salaries has a chilling effect on an employee's right to engage in a concerted activity and it otherwise has been established that by maintaining an unqualified rule or policy prohibiting employees from discussing wage rates among themselves, a respondent imposes an unlawful im- pediment and restraint on employee Section 7 rights. See Triana Industries, 245 NLRB 1258 (1979); and Jeannette Corp., 217 NLRB 653 (1975), affd. 532 F.2d 916 (3d Cir. 1976). Under these circumstances, it is concluded that Respondent's policy and unwritten rule against salary discussions among its employees violates Section 8(a)(1) of the Act as alleged. B. The Charging Party's Activity and Termination The relevant activity engaged in by the Charging Party is shown by the General Counsel to have been complaints to other employees and discussion with them concerning salaries. Ballard spoke with several other em- ployees and at least one, Sandy Williams, agreed that she was concerned over a new employee being offered more money than present employees. It also is shown that Bal- lard pursued her protest and argument not just because of her own pay but as a matter of principle and concern over fairness to other employees in the land department. Accordingly, the General Counsel has established that salaries were an issue of mutual concern among employ- ees. Moreover, I conclude that Ballard's activities, even if pursued only by her, properly should be considered to be concerted in nature . See Jeannette Corp., supra; Alle- luia Cushion Co., 221 NLRB 999 (1975); Datapoint Corp., 246 NLRB 234 (1979); and Cal-Waits, Inc., 258 NLRB 974 (1981). Accordingly , I conclude that Ballard's com- plaints and discussions regarding salaries constituted pro- tected concerted activity. As noted above, it is shown that Respondent had a policy or rule against employee discussion of salaries and that Ballard's discussion of salaries was listed by Re- spondent to the Oklahoma State Employment Service as the reason for her termination . Under - these circum- stances, I conclude that the General Counsel had made a prima facie showing sufficient to support the inference that Ballard's protected concerted activity was a moti- vating factor leading to her being placed on leave of ab- sence and terminated . Accordingly, and in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 (1980), the record must be evaluated in the light of Re- spondent's proffered defense to see if Respondent has demonstrated that it would have terminated Ballard even in the absence of her protected conduct. Respondent has shown that Ballard gave the appear- ance of being a chronic complainer and it argues, in effect, that it was justified in terminating her because her conduct became disruptive , she was warned against the continuation of such behavior, and she insubordinately persisted in her actions. Here, Ballard's complaints reflected an overriding dis- like of her former supervisor, Stockton , and dissatisfac- tion with the way the Company was being managed; however, they were intertwined with her protected ac- tivity regarding salary related protest . Moreover, the event leading most directly to her termination was Su- pervisor Kendall's receipt from Director of Office Ad- ministration Jernigan of Ballard 's reply to Stockton's be- latedly distributed memo, which reviewed the original salary related dispute. Thus, although Ballard did engage in the rumor mill and in general complaining after her transfer to Kendall's department and after Kendall's warning to put the Stockton incident behind, her, there is no indication that she otherwise initiated any continu- ation of her salary dispute in defiance of Kendall 's admo- nition. However, when she was faced with Stockton's 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD memo and an apparent reopening of her salary dispute, Ballard reacted in impulsive self-defense to balance the record in her personnel file by describing her impression of the circumstances. Kendall, at the time she terminated Ballard, clearly was basing her decision on Ballard's past salary protest and the apparent renewal of her complaints. Moreover, Kendall had been present as part of Respondent's salary review board when her supervisor, Vice President Foster, expressed the opinion that Ballard should be 'ter- minated for her salary protest. Although action on that decision was deferred at the time, I infer that Kendall was reimplementing that decision when Jernigan brought Ballard's reply memo to her attention. Although an employer has basic rights to maintain order and respect in its workplace, the Board is required to balance the employer's rights against the employee's right to engage in concerted activity. Moreover, the Board may allow some leeway for impulsive behavior on the part of the employee. See NLRB v. Thor Power Tool Co., 315 F.2d 584 (7th Cir. 1965). Respondent has assert- ed several reasons pertaining to disruptive behavior and insubordination by Ballard as justification for her termi- nation; however, these reasons are at odds with the justi- fication initially given by Respondent to Ballard and to the Oklahoma State Employment Service. Accordingly, I infer that these secondary justifications are not indica- tive of Respondent's true motivation in terminating Bal- lard and, while an employee may forfeit the protection of the Act by sufficiently egregious conduct, there is no showing here that Ballard's complaints and discussions approached a level such that they could be found to be unprotected conduct. Compare NLRB v. Lummus Indus- tries, 679 F.2d 228 (11th Cir. 1982). Although it appears that Ballard's general behavior may have had some disruptive effect on Respondent's office environment, it is equally apparent that she would not have been put on leave of absence with a predeter- mined termination date were it not for her protected ac- tivities of protesting about salaries and her reply memo of April 1, 1982, pertaining to her salary dispute with Stockton. Under these circumstances, I find that the General Counsel has met her overall burden of proof consistent with the criteria set forth in Wright Line, supra and Hill- side Bus Corp., 262 NLRB 1254 (1982), and that Re- spondent's discharge of Ballard violates Section 8(a)(1) of the Act as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By maintaining in effect an unqualified rule or policy prohibiting employees from discussing wage rates among themselves, Respondent has imposed an unlawful impediment and restraint on employees' right to engage in concerted activity for mutal aid and protection guar- anteed by Section 7 of the Act and thereby is in viola- -tion of Section 8(a)(1) of the Act. 3. By placing Natalie Jean Ballard on leave of absence on April 1, 1982, with effective termination of July 31, 1982, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it is recommended that Respond- ent be ordered to cease and desist therefrom and to take the affirmative action described below that is designed to effectuate the policies of the Act. In view of the finding noted above that the Charging Party was discharged for an unlawful reason, I recom-' mend that Respondent be ordered to offer Natalie Jean Ballard immediate and full reinstatement to her former position or, if such position no longer exists, to a substan- tially equivalent position without prejudice to her senior- ity or any other rights or privileges she previously en- joyed. I also recommend that Respondent be ordered to make her whole for the losses that she suffered as a result of her being placed on leave of absence on April 1, 1982, in accordance with the method set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed by the Board in Florida Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, L. G. Williams Oil Company Inc., Oklahoma City, Oklahoma, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging employees or otherwise discriminating against them in retaliation for engaging in ,protected con- certed activities. (b) Maintaining in effect or enforcing any unqualified rule or policy that prohibits employees from discussing salaries or wage rates among themselves. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Natalie Jean Ballard immediate and full rein- statement and make her whole for the losses she incurred as a result of the discrimination against her in the manner specified in the remedy section of the decision. (b) Remove from its files any reference to the leave of absence of April 1, 1982, and the discharge of Natalie Jean Ballard on July 31, 1982, and notify her in writing that this has been done and that evidence of this unlaw- ful discharge will not be used as a basis for future per- sonnel actions against her. 8 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 L. G. WILLIAMS OIL CO. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Oklahoma City, Oklahoma facility copies of the attached notice! marked "Appendix."4 4 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." 425 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to Comply.