Super One Foods, #601

462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brookshire Grocery Company, d/b/a Super One Foods, #6011 and Mark L. Moise. Case 15- CA-9783. May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On March 18, 1986, Administrative Law Judge J. Pargen Robertson issued the attached decision. The General Counsel filed limited exceptions and a supporting brief. The Respondent filed cross-excep- tions, a supporting brief, and an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,2 findings,3 and conclusions and to adopt the recommended Order4 only to the extent consistent with this Deci- sion and Order. The judge found, and we affirm, that the Re- spondent violated the Act by prohibiting its em- ployees from discussing their wages under threat of discharge. 5 He further found that the interrogation of several employees and the discharge of the Charging Party did not violate Section 8(a)(1). For the reasons set forth below, we disagree. The facts in brief are as follows. On September 7 and 9, 1985,6 the Respondent met with its employ- ees at its Alexandria, Louisiana retail grocery store over the employees' concern about lack of wage increases. At the second meeting, the Respondent's supervisor of market operations told employees that company policy prohibited "employees dis- cussing wages with other employees" and that "violation of this rule was grounds for termina- tion." The Respondent also announced that it i The name of the Respondent appears as set forth in the complaint and the Respondent's answer to the complaint 2 The Respondent has excepted to "the [judge's] ruling that denied Re- spondent the right to use Moue's Board affidavit [and] to the [judge's] denial of its post-trial Motion to Reopen the Record to include Moise's affidavit " We adopt the judge's ruling on this matter in his Order dated December 16, 1985, as amended , based on the reasons and cases cited a The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 4 The General Counsel has requested that the Order include a visitator- tal clause We find no need for that provision in the circumstances of this case See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 5 In adopting the judge's conclusion that the Respondent violated Sec 8(aXl) of the Act by prohibiting its employees from discussing their wages, we note that in International Business Machines Corp., 265 NLRB 638 (1982), cited by the judge, the Board found that there, inter alia, unlike here, the respondent did not prohibit employees from discussing their own wages All dates are in 1985 unless otherwise indicated would grant individual wage increases. It notified employees of their own raises in individual conver- sations after the September 9 meeting. Employees not at the meeting or at work did not learn of their raises until later. During his work on the night of September 9 and morning of September 10, employee Moise en- tered Market Manager Cole's office. Moise was routinely required to go into Cole's office in the course of his work to leave invoices. According to credited testimony, Moise noticed several sheets containing wage increase information located on Cole's desk top while in Cole's office. Moise copied the wage information concerning each em- ployee on the back of a sign. He then talked to several employees about the pay increases and showed them the list of what each employee had received. On September 11, Cole was told by an employee that Moise had a list of the employees' pay raises. Cole questioned three other employees who veri- fied that Moise had a list and was showing it to other employees. The questioning was initially con- ducted on the Employer's premises by Cole. Store Director Santone and Cole later questioned these employees and obtained written statements regard- ing their wage discussions with Moise. Cole asked Moise where he got the list. Moise refused to tell Cole how he acquired the list and Cole then sus- pended Moise. On September 13, Moise was discharged. During his termination interview, Cole and Store Director Santone again asked Moise how he acquired the list. Moise refused to say except that he got the list from "a family man." At the hearing, Moise admit- ted that he was not truthful when he said that he had acquired the list from another employee. Ac- cording to Cole's testimony in a pretrial affidavit, which he confirmed at the hearing, the decision to terminate Moise was based on "violation of compa- ny policy by discussing wage information. 117 San- tone testified as follows: Q. Now you told Mr. Moise he was termi- nated because he approached employees and discussed salaries after specifically being told ' Although not referred to by the j udge, elsewhere in his pretrial affi- davit Cole stated that I told Moise that he was terminated for revealing wage information to other employees That was the only reason he was terminated He was told that was the only reason he was terminated I asked him how he got the information He said he couldn't say He said another employee had given it to him. Mr Santone said, well regardless of how you got the information you are not fired for that You are fired for one reason, for revealing the wage information Further, the discharge report prepared by Cole on the day of Moise's discharge states the reason for discharge as "Misconduct violation of Company Policies, discussing Co privet [sic] information with other em- ployees " 294 NLRB No. 34 SUPER ONE FOODS by Mr. E.B. Jones not to discuss salaries and that he could be terminated for that, didn't you? A. Yes. Q. And you also told him that was the only reason he was terminated? A. Yes. Q. Okay, and you testified under oath that Mr. Moise was terminated for one reason and one reason only, that being for his conduct in discussing salaries and other employees in vio- lation of a Company rule , after being specifi- cally told by management not to discuss sala- ries with employees, correct? A. Yes. 1. Addressing Moise's discharge, the judge noted that the precise reason for discharge given Moise at his termination interview was discussion of wage increases with other employees . The judge deter- mined, however, that "more was involved" and found that Moise was discharged because he showed other employees information obtained from the Respondent's confidential files. The General Counsel excepts to the judge's failure to find that the Respondent discharged Moise because he dis- cussed wages with other employees . We find merit in this exception. As the judge himself noted , the stated reason for discharge was discussion of wage increases with other employees . Moreover, both Cole and San- tone testified that this was the only reason Moise was discharged . In this connection, both Cole and Santone testified without controversion that Moise was specifically told that he was not being fired for obtaining the wage information and, further, San- tone testified that it was immaterial how he had ob- tained the information. 8 The judge's conclusion that "more was involved" focuses on evidence in the record that under some circumstances might have provided a permissible basis for terminating an employee. We conclude, however, that the record clearly establishes that, as the Respondent's witnesses in effect conceded, the Respondent in fact did terminate Moise solely for discussing sala- ries in violation of its rule that we have found, in agreement with the judge , to be unlawful. Thus, we find that the Respondent 's termination of Moise violated Section 8(a)(1) of the Act. Further, contrary to the Respondent's assertions, we find that the evidence fails to establish that Moise's conduct, under the particular circum- stances presented , warrants denial of reinstatement with full backpay. The Respondent asserts that 8 Santone's testimony in this regard is consistent with Cole's pretrial af- fidavit, see fn 7, above 463 Moise should be denied the traditional remedies be- cause he took information from Cole's desk and showed it to other employees in violation of its written company policy prohibiting disclosure of information it proclaims to be confidential . In this connection, we note that the information at issue here was located on Market Manager Cole's desk top and was seen by Moise when he entered Cole's office in the routine course of his work. Thus, al- though Moise admittedly copied the information, his conduct was not aggravated by entering an office where his work did not require him to go or by opening drawers or cabinets to find concealed materials. Further, viewing Moise's conduct in con- text, we note that at the time Moise acquired the wage information from the top of Cole's desk, the Respondent was actively enforcing its unlawful policy of prohibiting employees from discussing their wage rates. This denial of the Section 7 right to discuss wages precluded the employees from de- termining wage information on their own . It thus follows that the existence of the rule must be taken into account in examining employees' efforts to ex- ercise their Section 7 right to determine and dis- cuss their wages. This was recognized by the Board in International Business Machine Corp., 265 NLRB 638 (1982). In that case, unlike this one, there was no prohibition against employees discuss- ing their own wages or attempting to determine what other employees were paid . In that context, the employer was found to have proved a substan- tial and legitimate business justification allowing it to treat as confidential wage information it com- piled for its own use. Therefore, distributing the employer's own information was found to have been unprotected. Here, conversely, the Respond- ent attempted to restrict the employees ' Section 7 rights, which bears significantly on the alleged mis- conduct. In this regard , contrary to our dissenting colleague, we find it significant that the written company policy relied on by the Respondent as es- tablishing that Moise's conduct constitutes grounds for dismissal is the same policy it relied on to sup- port its unlawful policy of prohibiting discussion of wages . In this context, as distinguished from IBM, it cannot be said that the Respondent has estab- lished a legitimate basis for applying its rule to Moise's conduct so as to bar reinstatement with full backpay, or that Moise's conduct warrants denial of the traditional remedies. Contrary to our dissenting colleague , we do not find that the Board's reasoning in Axelson, Inc., 285 NLRB 862 (1987), requires a different result. In Axelson , an employer that had unlawfully dis- charged employees subsequently learned of their strike misconduct which was of the sort that would 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have justified the termination of their reinstatement rights. The Board held that backpay rights would be cut off at the time the employer acquired knowledge of the misconduct if it demonstrated that the misconduct met the standard of Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985), and was not conduct of a sort that it has tolerated in the past. Contrary to our dissenting colleague, we find that this matter should not be remanded to compli- ance to allow further litigation on the issue of rein- statement for discriminatee Moise. In reaching this conclusion, we rely on the fact that the Respond- ent has already had an opportunity to litigate this issue and the record amply supports a finding, con- sistent with Axelson, that the Respondent did not and would not have terminated Moise based on the manner in which he received the confidential infor- mation. It is clear for the reasons discussed above that the termination was solely because Moise dis- seminated the information in violation of the Re- spondent's illegal policy against permitting employ- ees to discuss their wages. From the beginning, it was always clear to the Respondent that Moise ,came into possession of the information through other than legitimate means. In the face of this knowledge, the Respondent clearly informed Moise that his termination was for revealing the informa- tion and it was irrelevant how the information came to his attention. Further, we note that even the Respondent does not assert that there is a need for further hearing on the matter. The Respondent argues that the record demonstrates that Moise has forfeited his remedial rights because of his miscon- duct. There is no contention nor record evidence that would indicate that the Respondent was in any way precluded from presenting evidence on this issue. Thus, the Respondent relies on the record evidence in supporting its contention that reinstate- ment is inappropriate. By allowing the Respondent to demonstrate at compliance that it would have terminated Moise despite his violation of the un- lawful prohibition of employees' wage discussions, our dissenting colleague would provide the Re- spondent a second opportunity to make its case. Even the Respondent does not contend this is nec- essary. 2. As to the questioning of several employees about Moise's discussion with them about wages, the judge found that "the record did not reveal any specifics of those interviews." He therefore con- cluded that he could not determine whether the interviews were coercive and whether the Re- spondent violated the Act by interrogating its em- ployees. The General Counsel excepts to the judge's failure to find the questioning of employees about Moise's discussions with them violative of Section 8(a)(1). We find merit in this exception. Although the substance of these interviews is not in evidence, we particularly note the timing of the interviews in relation to the other unlawful actions taken by the Respondent. Specifically, as set forth above, the questioning of employees occurred on the day after the Respondent's meeting at which employees were told of the Company's unlawful policy prohibiting discussion of wages and that vio- lation of this rule was grounds for termination. The record further establishes that this questioning oc- curred on the day Moise was suspended and 2 days before he was discharged for the stated reason of discussing wages. Under these circumstances, we conclude that these interrogations had a reasonable tendency to restrain, coerce, or interfere with the employees in the exercise of the rights guaranteed them by the Act in violation of Section 8(a)(1).9 AMENDED CONCLUSIONS OF LAW Delete paragraph 3 and add the following. "3. The Respondent, by interrogating certain em- ployees regarding discussions about wages on Sep- tember 11, 1985, violated Section 8(a)(1) of the Act. "4. The Respondent, by discharging Mark Moise on September 13, 1985, violated Section 8(a)(1) of the Act." AMENDED REMEDY Having found that the Respondent has engaged in various unfair labor practices, we shall order that it cease and desist and take certain affirmative actions designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discharged Mark Moise on September 13, 1985, we shall order the Respondent to offer Moise reinstate- ment and make him whole for any loss of earnings and other benefits he may have suffered as a result of the discrimination against him. i 0 We shall also order the Respondent to remove from its records any reference to Moise's unlawful discharge on September 13, 1985, and to notify him in writing that it has done so and that the discharge will not 9 Member Cracraft agrees that under all the circumstances the interro- gations would reasonable tend to restrain , coerce, or interfere with rights guaranteed by the Act In so finding, however, she does not rely on Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) 10 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) SUPER ONE FOODS be used against him in any way. Sterling Sugars, 261 NLRB 472 (1982). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Brookshire Grocery Company, d/b/a Super One Foods, #601, Alexan- dria, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating any rule prohibiting its employ- ees from discussing employees' wage rates and wage increases. (b) Threatening its employees with discharge be- cause its employees discuss their wage rates with other employees. (c) Discharging employees for discussing em- ployees' wage rates and wage increases. (d) Interrogating employees concerning their dis- cussion of wage rates and increases with other em- ployees. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Mark Moise immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or any other privileges previously enjoyed and make him whole for any loss of earnings and other benefits he may have suf- fered by reason of the discrimination against him in the manner set forth in the amended remedy sec- tion of the decision. (b) Remove any reference to Moise's September 13, 1985 discharge from his personnel file and notify him that this has been done and that it will not use the discharge against him. (c) Post at its facility in Alexandria, Louisiana, copies of the attached notice marked "Appen- dix."" Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. " If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 465 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN STEPHENS, dissenting in part. I disagree with my colleagues only as to their decision to order reinstatement and backpay for Moise. In Axelson, Inc., 285 NLRB 862 (1987), a case issued subsequently to the judge's recommend- ed decision here, the Board curbed the traditional remedies for an unlawful discharge where the re- spondent subsequently acquired knowledge of em- ployee (strike) misconduct that would warrant dis- charge for cause. The Board held that it would not order reinstatement and would limit backpay rights by cutting them off at the time the employer ac- quired knowledge of the misconduct if the employ- er demonstrated that the misconduct meets the Board's standard for disqualification and, further, that the conduct was not of the sort that the em- ployer had tolerated in the past. Although my col- leagues acknowledge Axelson, they adopt what ap- pears to be a provocation theory of sorts for the employee misconduct in this case: Given that the Employer promulgated an unlawful, gag rule on the discussion of wages among employees, and therefore "precluded the employees from determin- ing wage information on their own," Moise's sur- reptitious copying of wage information from Cole's desk is an appropriate response in an effort to exer- cise Section 7 rights "to determine and discuss their wages." As reflected in my vote to hold the Respondent's gag rule unlawful, I have no quarrel with the notion that employees may divulge salary informa- tion to one another in violation of their employer's rule requiring that such data be treated as confiden- tial. But it surely does not automatically flow from this legitimate exercise of employees' Section 7 rights that an employer has no right to withhold access to the salary records themselves.' Likewise, I think an employer is entitled to trust that an em- ployee whose prescribed duties bring him into physical proximity of private business records that he is not authorized to possess or use will not mis- appropriate the contents of those documents.2 In ' See International Business Machines Corp, 265 NLRB 638 (1982) See also Texas Instruments v NLRB, 637 F 2d 822, 830 (1st Cir 1981), NLRB v Florida Steel Corp, 544 F 2d 896, 897 (5th Cir 1977) ("While section 7 guarantees an employee the right to use information available in the normal course of work activity and association, it does not extend to un- authorized dissemination of information obtained from an employer's con- fidential files or records ") 2 Compare Bell Federal Savings & Loan Assn, 214 NLRB 75, 78 (1974) 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the instant case, Moise obtained access to the wage increase information only by virtue of having to go into Cole's office to deliver invoices. Moise also admitted at trial that he was not authorized to pos- sess that information generally as to other employ- ees (wholly apart from the Employer's unlawful prohibition against employee discussion).3 In short, I would not be so quick to overlook Moise's conduct here. Yet, Axelson itself will offer a reprieve in some circumstances, if the employer is unable to demonstrate that under preexisting company policy, applied evenhandedly, the discri- minatee's alleged misconduct would have resulted in termination. Because the hearing preceded Axel- son, the record does not permit us confidently to resolve this question. Accordingly, I think the ap- propriate course here is to modify the remedial portion of the Order to allow, at the compliance stage, for consideration of Moise's reinstatement and backpay rights in light of Axelson. To the extent that remedial order now entered may be read to foreclose this inquiry, I dissent.4 WE WILL NOT interrogate employees concerning their discussion of wage rates and increases with other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Mark Moise immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or any other privileges previously enjoyed and make him whole for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him, with interest. WE WILL notify Mark Moise that we have re- moved from our files any reference to his Septem- ber 13, 1985 discharge and that the discharge will not be used against him in any way. BROOKSHIRE GROCERY COMPANY D/B/A SUPER ONE FOODS, #601 3 I disagree with my colleagues' suggestion that at the time of Moise's discharge, the Respondent had sufficient knowledge of how he obtained the wage information to discharge him under its written confidentiality policy, but chose instead to discharge him pursuant to its unlawful gag rule. A reasonable interpretation of the facts in this case indicates that the Respondent was not certain how Moise came by the information until Moise himself made admissions at the hearing 4 It is apparent that my colleagues agree with me that Moise in fact engaged in misconduct with regard to his appropriation of the confiden- tial wage information Further, there is no dispute that an employer law- fully may discharge for cause See, e g, Sec 10(c) of the Act Thus, I am not as reluctant as my colleagues to permit further litigation in order to ascertain whether the Respondent would have terminated Moise for cause in light of his admissions of misconduct In my view, a fuller devel- opment of the record is warranted so as to permit an accurate assessment of the competing remedial policy considerations here APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT promulgate a rule or policy pro- hibiting our employees from discussing employee wage rates or wage increases with other employ- ees. WE WILL NOT threaten our employees with dis- charge because they discuss wage rates or wage in- creases with other employees. WE WILL NOT discharge employees for discuss- ing employees' wage rates and wage increases. Jay Alan Ginsberg, Esq., for General Counsel. Stephen W Smith, Esq., Counsel for Respondent. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This matter was heard in Alexandria, Louisiana, on 9 December 1985. The complaint was based on charges filed on 27 September 1985 and amended on 22 October 1985, and was filed on 24 October 1985. The General Counsel alleges the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their protected activities, by threatening employees with discharge if they engaged in protected activities, by promulgating an illegal policy or rule prohibiting its em- ployees from discussing wage rates, and by discharging Mark Moise because of his protected concerted activi- ties. On 7 September 1985, at its Alexandra, Louisiana retail grocery store,' the Respondent met with its em- ployees at the employees' request over their concern about lack of wage increases. Pursuant to the employees' concerns, Respondent conducted a second meeting with its employees on 9 September 1985. E. B. Jones, Respondent's supervisor of market oper- ations, presided over the 9 September meeting. Addition- ' Respondent admitted that it is a Texas corporation engaged in the retail sale of groceries with a place of business in Alexandria , Louisiana. During the past 12 months, a representative period, it derived gross reve- nues in excess of $500,000 and purchased and received goods and maten- als valued in excess of $25,000 shipped from sources located outside the State of Louisiana. Respondent admitted that it is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act SUPER ONE FOODS ally, Grocery Superintendent Gary Thiemann spoke to the employees at that meeting. Market Manager Gordon Cole admitted that E. B. Jones told the employees that company policy prohibited "employees discussing wages with other employees and that violation of this rule was grounds for termination " Kevin Santone, Respondent's store director, also testi- fied about Respondent's 9 September meeting with em- ployees. Santone testified that the meeting dealt with several areas of confidential information. Santone admit- ted that E. B. Jones told employees that they were not to discuss salaries whenever a wage increase was given, and that anyone caught discussing salaries may be termi- nated. During his work on the night of 9 September and early morning of 10 September, employee Mark Moise entered into the office of Market Manager Cole. Moise was required to go into Cole's office during his work to leave invoices. During its 9 September meeting with employees, Re- spondent had announced that it would grant individual wage increases. Afterward, Respondent notified the indi- vidual employees at work of their raises in individual, one-on-one, conversations. Some employees were not at the 9 September meeting or at work, and did not learn of their raises until later. While in Cole's office, according to Moise, he noticed several sheets containing wage increase information. Each sheet pertained to a different employee 2 Moise then copied the wage increase information on each em- ployee on the back of a "specials" pricing sign. Moise admitted that at the time he copied the employ- ees wage increase information, he was aware that he was not authorized to possess that information as to employ- ees other than himself; that he was aware that he was not authorized to pass out the information to other em- ployees; and that he was aware that it was "grounds for 2 Moise's testimony conflicted as to the location of the wage increase information, with that of Gordon Cole Originally, Cole testified that the wage increase information was written on only one document , i e, pen- ciled on the back of a "rate review analysis " Cole testified that that doc- ument was not on his desk top, but was in the lower drawer of his file cabinet, and that while Moise was expected to come into Cole's office as required by his job duties, Moise had no business reason to open Cole's lower file drawer On being called after Moise's testimony, Cole testified that "individual sheets, for individual employees," were also kept in his bottom file drawer Cole testified that the information on his desk top in- cluded only invoices and that Morse was permitted to use and examine those invoices Cole's testimony fluctuated from positive assertion that the wage infor- mation was listed in only one place to an indication that wherever it may have been listed, all the documents were filed in this lower drawer As to that testimony, I am convinced that Cole was not telling the truth His demeanor revealed uncertainty Moise's contrary testimony was firm and unequivocal Moreover, I am convinced that Moise's version is more rea- sonable and believable Therefore, I credit Morse as to that particular issue In its brief, Respondent asked me to draw certain inferences from the General Counsel's refusal to provide Moise's pretrial affidavit during Respondent's rule 611 (c) examination of Morse Respondent is incorrect in its contentions While the General Counsel did resist production of Moise's affidavit, General Counsel was never ordered to produce that document An examination in the transcript shows that Respondent's at- torney did not pursue his request for production after the I suggested the affidavit was unnecessary under the circumstances Therefore, I will not draw any adverse inferences from the General Counsel's failure to produce Moise's affidavit The General Counsel did not act improperly in that regard 467 discharge for [him) to go into the office and take the in- formation." After copying the information, Moise talked to several employees including Sarah White, Rodney Saluss, and Glen Joubert. Moise testified that he talked to those em- ployees about the pay increases and he showed the list of what each employee had received Subsequently, according to Gordon Cole, on 11 Sep- tember, he was approached by either Rick West or David Baker and told that Moise had a list of the em- ployees' pay raises. Cole talked with Sarah White, Rodney Saluss, and Glen Joubert, who told him that Moise had a list of pay increases which Moise was show- ing to other employees. On 11 September, Cole confronted Moise and asked where Moise got the list. Morse refused to tell how he acquired the list. Cole told Moise he was suspended. On 13 September, Moise was discharged. During his final interview, Cole and Kevin Santone met with Moise. Moise was asked how he acquired the list. Moise refused to say other than he got the list from a family man that needed his job more than Moise needed his.3 According to Cole's testimony in a pretrial affidavit, which he con- firmed at the hearing, the decision to terminate Mark Morse was based on Moise's "violation of company policy by discussing wage information." Kevin Santone testified as follows: Q. Now you told Mr Moise he was terminated because he approached employees and discussed sal- aries after specifically being told by Mr. E B Jones not to discuss salaries and that he could be terminat- ed for that, didn't you? A. Yes. Q And you also told him that was the only reason he was terminated? A. Yes. Q. Okay, and you testified under oath that Mr. Moise was terminated for one reason and one reason only, that being for his conduct in discussing salaries and other employees in violation of a Com- pany rule, after being specifically told by manage- ment not to discuss salaries with employees, cor- rect? A. Yes. Conclusions The National Labor Relations Act specifically protects employees engaged in "concerted activities for the pur- pose of . . . . mutual aid . . . ." Mutual aid, under the terms of the law, includes employees concerted activities regarding "wages, rates of pay, hours of employment, or conditions of work." The Board and courts have found that it is fundamen- tal to the above-mentioned rights that employees must be free to discuss their wage rates and the wage rates of fellow employees. Here, the record shows the Respond- ent prohibited its employees from discussing their respec- 3 At the trial Morse admitted that he was not truthful when he told Cole and Santone that he acquired the list from another employee 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive wage rates under threat of discharge. In that regard, Respondent engaged in illegal activity . Noland Co., 269 NLRB 1082, 1088 (1984); Jeannette Corp., 217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976); International Business Machines Corp., 265 NLRB 638 (1982). Respondent also questioned several employees about Moise's discussion with them about employee raises. However, the record did not reveal the specifics of those interviews and I am unable to determine whether the interviews were coercive . Therefore, I cannot determine that Respondent violated the Act by interrogating its employees . Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Finally, Respondent is accused of discharging Moise because Moise discussed employee wage increases with other employees. Indeed, the record shows that that was the precise reason given Moise in his terminal interview. However, the record shows that more was involved. Clearly, if Moise was discharged as stated to him by Re- spondent, simply, because he discussed wage increases with fellow employees, I would not hesitate to find a violation of the law. In fact, however, shortly after Re- spondent told individuals of their respective pay in- creases, Respondent was advised that Moise had a list of the wage increases.There was no doubt that Respondent knew that that list originated in its own files. Moise told Respondent that the list was acquired by another em- ployee and supplied to him . Nevertheless, it was appar- ent that Moise possessed confidential information which he was revealing to other employees. Moise admitted as much. Under examination by Respondent's attorney, Moise admitted that he knew the wage increase informa- tion was confidential and that he was not authorized to possess that information. Therefore, even though Respondent's statements to Moise would illustrate a violation, the underlying facts bring into question whether Moise was in fact engaged in "protected" activity when he showed the wage increase list to other employees . The Board has dealt with that question in International Business Machines Corp., supra. There the Board stated that although an employer might not legally prohibit its employees from discussing their wage rates, an employer may treat "as confidential the information it has compiled for its internal use." Here, Moise improperly acquired4 the wage increase information from Respondent's files, files which Re- spondent had compiled for its internal use, and showed that information to other employees. Therefore, I find that the discharge herein is similar to the situation in International Business Machines Corp., supra. I find that Moise was discharged because he showed other employees information obtained from Re- spondent's confidential files. That activity is not protect- ed under the National Labor Relations Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, by promulgating a rule prohibiting its employees from discussing wage rates and wage in- creases with other employees, and by threatening its em- ployees with discharge if they discussed wages with other employees, engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. Respondent did not otherwise engage in activities violative of the Act as alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), I shall rec- ommend that it be ordered to cease and desist therefrom and take certain affirmative actions designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.] 4 As shown above, I find that Gordon Cole left the wage information on his desk and that Morse noticed the information while engaged in the legitimate duties of his job Therefore, I do not find that Motse engaged in any criminal activity Nevertheless , Morse admitted that he knew he was engaging in reprehensible action when he copied the information and showed it to other employees