Buddles Super Markets

National Labor Relations Board - Board Decisions

Apr 19, 1976

223 N.L.R.B. 950 (N.L.R.B. 1976)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buddies Super Markets and Edward Thomas Mat-
thews . Case 16-CA-6020
April 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On November 10, 1975, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au=
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
As the facts are not in dispute, the only issue in
this case is whether the Respondent violated Section
8(a)(1) of the Act by discharging Supervisor Edward
Thomas Matthews because he revealed to employee
Ronald Ladd confidential information that the Re-
spondent was "building a case" against Ladd be-
cause the latter had held a union card 18 months
before. That is, did the Respondent's conduct rea-
sonably tend to interfere, restrain, or coerce Ladd or
his fellow employees in the exercise of their statutory
rights?
We agree with the Administrative Law Judge that
it did because it is abundantly clear that such con-
duct tended to confirm that the Respondent was bent
on pursuing its patently unlawful design without
Ladd's awareness and, toward that end, would brook
no frustration of its illicit cabal by Matthews, or per-
haps other supervisors. To be sure, Matthews' dis-
charge served as an example to other supervisors who
failed to cooperate-at least to the extent of keeping
quiet-in this "ticklish matter." But our focus is on
the impact that such conduct had on Ladd who, we
note, promptly notified the Respondent that its un-
lawful design had been exposed and, in an effort. to
defend himself, received confirmation that there was
nothing then in his record that would warrant termi-
nation. In sum, Matthews foiled Respondent's
scheme to "build a case" against Ladd and then have
him discharged for reasons clearly violative of Sec-
tion 7 of the Act.
' Respondent has requested oral argument . This request is hereby denied
as the record , the exceptions , and the brief adequately present the issues and
positions of the parties.
As the Administrative Law Judge noted, the Board
with court approval has held that disciplining a su-
pervisor violates Section 8(a)(1) of the Act where,
generally, the discipline is an integral part of the un-
lawful effort to thwart employees' union activities, or
where discipline is meted out because the supervisor
refuses or fails to engage in unlawful conduct, or
where the supervisor assists employees in proceed-
ings under their contract or before the Board. As he
stated, the circumstances surrounding the discharge
here fit neatly into none of the foregoing categories.
Yet the governing principle is the same: employees
are insulated from employer disciplinary pressure di-
rected at them through supervisors who either refuse
to participate in unfair labor practices, or, in a more
positive manner, assist employees in the vindication
of their statutory rights and thus prevent the further
concealment and perpetuation of unfair labor prac-
tices . And if this principle has any meaning it must
apply with equal force when, as here, a conscientious
supervisor intervenes at the outset to prevent a plan-
ned infringement of statutory rights.2
We share with our dissenting colleague a concern
for the undoubted loyalty that a supervisor owes to
his employer. But, in our view, an order to keep con-
fidential an unlawful design to violate the Act is im-
proper, and punishing for breaching this confiden-
tiality is unlawful interference within the meaning of
Section 8(a)(l).3 A proper balance between public
and private rights requires that supervisors be al-
lowed "to perform their statutory rights without
fear" of such reprisals. Oil City Brass Works v.
N.L.R.B., 357 F.2d 466, 471 (C.A. 5, 1966.)°
2 Conceptually, there is little difference between a supervisor refusing to
engage in unfair labor practices and refusing to stand by in silence while his
employer embarks on a planned course of action toward that end. In the
first situation the supervisor acts out of conscience against becoming a party
to violating the law . In the second , the supervisor will not knowingly allow
the law to be violated if he can prevent it. In both instances the supervisor,
insofar as he is capable of doing so , will not countenance a violation of the
law. Hence, contrary to our dissenting colleague , we find the absence of
evidence showing that Respondent urged Matthews to commit unfair labor
practices to be of no significance . Similarly , that his remaining silent would
not in and of itself have been unlawful is immaterial in these circumstances.
Nor can the dissent derive any comfort from the fact that planned unlawful
action against Ladd could not be carried out because Matthews , so to speak,
let the horse out of the barn before the fire.
3 In view of this conclusion , we deem it unnecessary to rely on the Ad-
ministrative Law Judge's alternative rationale that the discipline of Mat-
thews may also have been violative of Sec. 8 (a)(1) because it could reason-
ably have led the employees to fear that the Respondent would take the
same action against them.
The cases on which the dissent relies are inapposite . Indeed, the dissent's
descriptions of the situations involved in those cases prove the point. In
Western Sample Book and Printing Co., Inc., 209 NLRB 384 (1974), there is
no indication that the employer was going to use the information about
employee union activity for unlawful purposes . In Southwest Shoe Exchange
Company, 136 NLRB 247 (1962), the discharged supervisor simply was
asked to campaign lawfully against the union, and further the Board was
not convinced in any event that her refusal to do so was the reason for her
dismissal . In Ozark Motor Lines, 164 NLRB 300 (1967), the discharge result-
223 NLRB No. 137
BUDDIES SUPER MARKETS 951
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Buddies Super Markets,
Fort Worth, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
MEMBER WALTHER, dissenting:
The facts in this case are not in dispute. On April
9, 1975, Store Manager Robert Beauchamp told the
Charging Party, Grocery Manager Edward Thomas
Matthews, that store employee Ronald Ladd was
going to be discharged because he had held a union
card 18 months before. Beauchamp added that he
was attempting to change the mind of the district
supervisor on the matter but that he was not sure
how successful he would be. Beauchamp twice em-
phasized to Matthews that he was not to say any-
thing to Ladd about Ladd's prospective termination.
Notwithstanding Beauchamp's cautionary admoni-
tion, Matthews, the same afternoon, told Ladd of his
conversation with Beauchamp. Ladd immediately
called Ron Stricklin of Respondent's personnel office
to report the information he had received that he was
to be terminated for past union activities, and asked
for clarification. Stricklin said that Ladd had merely
heard a rumor and to call back later. When Ladd
called Stricklin again, the latter told him that there
was nothing in his personnel record that would re-
quire termination and that he still had a job. Ladd, in
fact, has not been terminated.
On the following day, April 10, Beauchamp repri-
manded Matthews for not following instructions
about the Ladd matter. According to Matthews' tes-
timony:
[H]e [Beauchamp] told me I was very stupid. I
asked him why. Mr. Beauchamp informed me
that I had not followed instructions. I had
breached a particular confidentiality of informa-
tion in that I had told Mr. Ladd he was to be
terminated and Mr. Beauchamp had specifically
ed from failure to cooperate with the employer's attorney in the preparation
of a representation matter, and there was no indication that respondent
made any improper demand upon the supervisor . Furthermore, the dissent's
reliance on cases wherein the Board has upheld the discharge of employees
for revealing confidential information to unions is misplaced . In Bell Feder-
al Savings and Loan Association of Bellevue, 214 NLRB 40 (1974), the breach
of confidentiality involved disclosure of telephone calls received by the pres-
ident of the company from his legal counsel. In American Book-Stratford
Press Inc., 80 NLRB 914 (1948 ), the employee breach concerned showing an
affidavit of her employer to a cochairman of the employees ' union commit-
tee. Clearly, neither of the situations involved matters relating to the divul-
gence of unlawful plans to violate the Act, as here.
told me not to tell Ronny Ladd that . . . Mr.
Beauchamp told me that he didn't know if he
could use a man like me that could not follow
instructions any longer.
And I told him that I didn't know that I could
use a boss such as he much longer either.
Mr. Beauchamp said that he was thinking
about . . . letting me go and I asked him if he
wanted my keys right then.
He didn't say much, or he didn't say yes to
that and he again told me I was stupid.
At that point I explained to him that I thought
it was very poor policy to condemn a man for
potentialities of what, if's and maybe's, what if
he tried to organize, what if he was at one time a
union member. He might-maybe he would try
something.
Mr. Beauchamp told me that was not the
point. The point was that I had breached this
confidential information.
So I said, "Why don't you fire me?"
And he looked at me kind of funny and
turned around and I asked him again and he.
said, "All right. You're fired."
At that point I asked him why I was fired.
And he told me that I had breached this con-
fidentiality.
Matthews is admittedly a supervisor. The com-
plaint alleged that Respondent discharged Matthews
because he "refused to commit unfair labor practices
and to interfere with rights of employees under Sec-
tion 7 of the Act on behalf of Respondent," thereby
violating Section 8(a)(1) of the Act. The Administra-
tive Law Judge found a violation of Section 8(a)(1) in
the discharge of Matthews, but not on the theory of
the complaint. He could hardly do so inasmuch as
there is not a scintilla of evidence that Respondent
had urged Matthews to commit unfair labor practic-
es and to interfere with any Section 7 rights of em-
ployees. Instead, sua sponte, the Administrative Law
Judge enunciated his own theory to support a viola-
tion, namely, "the dramatic impact of the discharge
of Matthews here will tend to make Respondent's
other supervisors fear that if they should, in the fu-
ture, furnish information, whether to an employee or
to the Board, adverse to Respondent in a matter re-
lating to the union activity of employees, they will
suffer a similar fate. Thus, the effect of Matthews'
termination reasonably promises to radiate beyond
the issue of disclosing information to employees, and
to engender an imminent fear among Respondent's
supervisors that revelation of similar information to
Board representatives at some future time will imper-
il their employment." In the alternative, the Adminis-
trative Law Judge found that Matthews' discharge
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was violative of Section 8(a)(1) because it might lead
employees reasonably to fear that Respondent would
take the same action against them if they chose to
engage in union activities.
Supervisors are expressly excluded from the pro-
tection of the Act.' The congressional purpose in
such exclusion was to insure undivided loyalty of su-
pervisors to their employers.'
In enacting sections 2(3) and (11), Congress'
preeminent purpose "was to give the employer a
free hand to discharge foremen as a means of
ensuring their undivided loyalty, in spite of any
union obligations." Carpenters District Council v.
NLRB, 1959, 107 U.S. App. D.C. 55, 57, 274
F.2d 564, 566.'
Hence, it is generally held that it is not unlawful to
discharge a supervisor for engaging in union activi-
ties.8 However, where an employer discharges a su-
pervisor because he refuses to engage in conduct
which would violate the Section 7 rights of rank-and-
file employees, the Board and the courts have found
a violation of Section 8(a)(1) in the discharge. Thus, a
finding of a violation was made where: (1) the dis-
charge was occasioned by the supervisor's refusal to
engage in unfair labor practices against employees;9
(2) the supervisor gave testimony adverse to the em-
ployer in a Board proceeding;10 (3) the supervisor,
contrary to the direction of his superior, attended a
hearing on grievances filed by rank-and-file employ-
ees under a collective-bargaining agreement;" and
(4) the supervisor's discharge was an integral part of
a pattern of conduct aimed at penalizing employees
for their union activities." In all these cases the find-
ing of an 8(a)(1) violation was based not on the need
to protect supervisors qua supervisors, but to protect
rank-and-file employees in the rights guaranteed
them in Section 7 of the Act. But where the
employer's conduct in relation to a supervisor does
not impinge on the rights of nonsupervisory employ-
ees, the Board does not find a violation of Section
8(a)(1) in the discharge of a supervisor even though it
5 Sec. 2 (3) of the Act ; N.L.R.B. v. Bell Aerospace Company, Div. of Tex-
tron, Inc., 416 U.S. 267 (1974).
6 . Rept . 80-105, 80th Cong., 1st Sess . 5 (1947); GAF Corporation v.
N.L.R.B., 524 F.2d 492 (C.A. 5, 1975).
7 GAF Corporation v. N. L.R. B., supra at 495.
8 N.L.R. B. v. Big Three Welding Equipment Company, 359 F.2d 77 (C.A. 5,
1966); Oil City Brass Works v. N.L.R.B., 357 F.2d 466 (C.A. 5, 1966); Hook
Drugs, Inc., 191 NLRB 189 (1971 ); Royal Fork of Washington, Inc., 179
NLRB 185 ( 1969).
9 N. L. R. B. v. Talladega Cotton Factory, 213 F.2d 208 (C.A. 5, 1954).
'° Oil City Brass Works v. N. L. R. B., supra; N. L. R. B. v. Better Monkey
Grip Company, 243 F.2d 836 (C.A. 5), cert. denied 353 U.S. 864 (1957); King
Radio Corporation v. N.L.R. B., 398 F.2d 14 (C.A. 10, 1968).
11 Ebasco Services, Incorporated, 181 NLRB 768 (1970).
12 Krebs and King Toyota, Inc., 197 NLRB 462 (1972) (Member Kennedy
dissenting).
is related to the union activities of rank-and-file em-
ployees. For example, in Western Sample Book and
Printing Co., Inc., 209 NLRB 384 (1974), the Board
found that an employer did not violate Section
8(a)(1) in discharging supervisors because the em-
ployer felt that the supervisors were not doing
enough in behalf of the employer's campaign against
the union seeking to represent its employees. The em-
ployer regarded the supervisors' failure to reveal in-
formation as to union activities of employees as dis-
loyalty on their part. The Board found that, as the
employer did not urge the supervisors to engage in
unlawful conduct, the discharge of the supervisors
was lawful. Similarly, in Southwest Shoe Exchange
Company, 136 NLRB 247 (1962), the Board found
that the discharge of a supervisor for failing to follow
the employer's instructions to try to talk the employ-
ees out of voting for the union was not unlawful
since the instructions did not require the supervisor
to engage in unlawful conduct by making threats of
reprisals or promises of benefits. In Ozark Motor
Lines, 164 NLRB 300 (1967), the Board found that
the discharge of a supervisor for refusing to cooper-
ate with the employer's attorney in preparation of a
representation case initiated by a union was not un-
lawful. The Board stated (164 NLRB at 301):
The refusal to cooperate with the attorney was,
from Respondent's view, a serious act of insub-
ordination on the part of one of its supervisors
. . . . Further . . . neither the proposed inter-
view with the attorney, nor the proposed state-
ment to be signed by Camden interfered with
the Section 7 rights of employees. . . . 13
And in N.L.R.B. v. North Arkansas Electric Coopera-
tive, Inc., 446 F.2d 602 (C.A. 8, 1971), the court held
that it was not unlawful to discharge a managerial
employee for refusing to obey instructions to remain
neutral in a union election.14
Beauchamp's instruction to Matthews to keep in-
formation about the Ladd matter confidential re-
quired Matthews to do nothing which would violate
the Section 7 rights of employees." By keeping silent
Matthews would not be engaging in any unfair labor
practice. Ladd had not been discharged, much less
discriminatorily discharged.16 In fact, Beauchamp
13 To the same effect see Capital Electric Power Association, 171 NLRB
262 (1968).
14 Managerial employees like supervisors are excluded from the protec-
tion of the Act, N.L. R. B. v. Bell Aerospace Company, Div. of Textron, Inc.,
supra.
15 The Board has upheld the discharge of an employee for revealing confi-
dential information to a union . Bell Federal Savings and Loan Association of
Bellevue, 214 NLRB 40 (1974); American Book-Stratford Press, Inc., 80
NLRB 914 (1948) (Krapp).
16 Apart from Beauchamp's statement to Matthews there is no evidence
that in fact a decision had been made to terminate Ladd because of his
former union 'activities . As stated in the recital of facts, when Ladd queried
BUDDIES SUPER MARKETS
had indicated to Matthews that he was trying to re-
verse the supposed decision to terminate Ladd. There
was no proceeding or investigation involving Ladd
before the Board or any public or private agency.
The record is devoid of any evidence of unfair labor
practices committed by Respondent against rank-
and-file employees. On these facts Board and court
precedent would dictate dismissal of the complaint.
The Administrative Law Judge seems to have
found a violation on a sort of preventive theory.
While there may be no violation of the Act today,
Respondent's conduct indicates that there may be a
violation tomorrow. By finding a violation today, a
violation tomorrow may be prevented and therefore
a finding of violation today is justified. The Adminis-
trative Law Judge cites no case to support his theory
and in fact it is contrary to our entire scheme of
jurisprudence. As an alternative theory, he suggests
that Respondent's discharge of Matthews may be vi-
olative of Section 8(a)(1) because it might lead em-
ployees reasonably to fear that Respondent would
take the same action against them for similar con-
duct, citing Better Monkey Grip Company,. supra.
While this rationale for finding the discharge of a
supervisor violative of Section 8(a)(1) has sometimes
been employed by the Board, not only is it not ap-
propriate here, but it has been rejected by most
courts. As explained by the court in Oil City Brass
Works v. N. L. R. B., supra at 470:
[W]hether rank-and-file employees would be put
in fear by [the supervisor's] discharge is irrele-
vant and merely clouds the real issue. Any time
an employee, be he supervisor or not, is fired for
union activity rank-and-file employees are likely
to fear retribution if they emulate his example.
But the Act does not protect supervisors, it pro-
tects rank-and-file employees in their exercise of
rights. If the fear instilled in rank-and-file em-
ployees were used in order to erect a violation of
the Act, then any time a supervisor was dis-
charged for doing an act that a rank-and-file
employee may do with impunity the Board
could require reinstatement. Carried to its ulti-
mate conclusion, such a principle would result
in supervisory employees being brought under
the protective cover of the Act. Congress has de-
clined to protect supervisors and the courts
should not do by indirection what Congress has
declined to do directly.
Because I believe that the Administrative Law
Judge's Decision is erroneous, I would reverse it and
dismiss the complaint. Accordingly, I dissent from
the majority's affirmance of that Decision.
Respondent's personnel department about the information he had received
from Matthews he was told that his job was not in danger.
DECISION
STATEMENT OF THE CASE
953
BERNARD RIES, Administrative Law Judge: Pursuant to a
charge filed on April 18, 1975, and a complaint issued on
June 6, 1975, this case came on for hearing in Fort Worth,
Texas, on July 17, 1975. At issue is whether Respondent
violated Section 8(a)(1) of the National Labor Relations
Act, as amended, in discharging its supervisor, Edward
Thomas Matthews, on the ground that he committed a
"breach of confidence" by revealing to a statutory employ-
ee that Respondent intended to discharge the employee for
engaging in union activities.
After careful consideration of the record in this case, the
brief filed by Respondent, and the oral argument made by
counsel for the General Counsel at the hearing, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, and Respondent admits, that Re-
spondent is a wholly owned subsidiary of Kimbell, Inc., a
Texas corporation ; that it is engaged in the distribution
and retail sale of groceries and related products at retail
stores throughout the State of Texas; that during the 12
months preceding issuance of the complaint, Respondent
purchased and received at its facilities within the State of
Texas goods and products valued in excess of $50,000
which were received from suppliers outside the State of
Texas, and , during the same period , sold and distributed
products valued in excess of $500 ,000; and that , at all times
material herein, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The facts are simple and undisputed. Edward Matthews
was employed as a grocery manager at Respondent's Store
#88 in Arlington, Texas. The parties stipulated at the hear-
ing that, in such capacity, Matthews was a supervisor with-
in the meaning of Section 2(11) of the Act. On April 10,
1975, he was discharged in the circumstances described be-
low.
On April 9, 1975, in the morning, Robert Beauchamp,
the store manager, told Matthews that he "had something
that he didn't want to tell me, because it would upset me,
but he was going to do it anyway." Beauchamp went on to
say that Ronald Ladd, a store employee, was going to be
discharged because he had held a union card 18 months
before. Beauchamp said, however, that he was attempting
to change the mind of the district supervisor, Bobby
Franklin, on the matter, but he was not sure how successful
he would be. Beauchamp told Matthews that he would ef-
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fect the discharge by "building a case " against Ladd. Mat-
thews asked if Beauchamp wanted Matthews to help him.
After first answering affirmatively, Beauchamp changed
his mind and ruled out any assistance from Matthews, say-
ing that this was a "ticklish matter that he would handle
himself." He further twice emphasized to Matthews that
the latter was "under no circumstances [to] say anything to
Ronny Ladd about his termination."
Matthews subsequently gave further thought to the mat-
ter and decided that the planned termination was unfair;
"I felt that it was a small thing to do to someone just be-
cause at one time he had held a union card ." Accordingly,
in the afternoon of April 9, he told Ladd of the conversa-
tion with Matthews , informing him that "the office had
dictated he was to be terminated because of his union ac-
tivity 18 months ago." He also told Ladd that Beauchamp
had said he would "try to work it out with Mr. Franklin, so
that as it stood at that time Ronny Ladd would probably
be terminated, but not necessarily."
Ladd immediately placed a call to Ron Stricklin in
Respondent 's personnel office , relaying the information
that he was to be terminated for past union activities and
asking for clarification. Stricklin told Ladd to call back
later. When Ladd did so, he was apparently told by Strick-
lin that there was nothing in Ladd's record that would re-
quire termination . As of the time of the hearing, Ladd evi-
dently remained in Respondent's employ.
On the following day, April 10, Beauchamp told Mat-
thews that he had not followed instructions, in that he had
imparted confidential information to Ladd contrary to
Beauchamp's directive. After some discussion, in which
Matthews defended his conduct, Beauchamp discharged
Matthews, on the ground that Matthews had "breached
this confidentiality."
Shortly after his discharge, Matthews told Ladd what
had occurred , and about 2 days later , at a meeting in his
apartment, he told several of the other employees who had
worked for him of the events leading to his discharge.
Analysis and Conclusions
Sections 2(3), 2(11), and 14 of the Act, as amended in
1947, make it clear that an employer may, with impunity,
discipline a supervisory employee for affiliating with, or
engaging in activity in support of, a union, Accurate
Threaded Products Company, 90 NLRB 1364, 1373 (1950);
National Freight, Inc., 154 NLRB 621, 622 (1965); Hook
Drugs, Inc., 191 NLRB 189, 191 (1971). But Board and
court decisions since 1947 make it equally clear that, in
certain circumstances, discipline of a supervisor may have
such an impact upon the Section 7 rights of rank-and-file
employees as to constitute interference with , restraint, and
coercion of those rights , and that, consequently, an em-
ployer may violate Section 8(a)(1) by imposing such disci-
pline.
A review of the authorities discloses at least four factual
categories (which, of necessity, can be only generally char-
acterized here) in which the foregoing proposition has been
applied : ( 1) where the discipline of the supervisor is based
on his failure or refusal to engage in unfair labor practices
(or, perhaps, merely antiunion conduct) against employees,
e.g., Talladega Cotton Factory, Inc., 106 NLRB 295 (1953),
enfd. 213 F.2d 208 (C.A. 5, 1954), Brookside Industries,
Inc., 135 NLRB 16, enfd. 308 F.2d 224 (C.A. 4, 1962); (2)
where the discipline is imposed because the supervisor
cooperated with the Board, either by testifying at a hear-
ing, making himself available to testify, or giving a state-
ment to a Board agent, or because the supervisor refused to
engage in improper conduct in relation to a Board pro-
ceeding, Better Monkey Grip Company, 115 NLRB 1170
(1956), enfd. 243 F.2d 836 (C.A. 5, 1957), Oil City Brass
Works, 147 NLRB 627 (1964), enfd. 357 F.2d 466 (C.A. 5,
1966), King Radio Corporation, Inc., 166 NLRB 180 (1967),
enfd. 398 F.2d 14 (C.A. 10, 1968), Electro Motive Mfg. Co.,
Inc., 158 NLRB 534 (1966), enfd. 389 F.2d 61 (C.A. 4,
1968), Roper Corporaion, 213 NLRB 136 (1974); (3) where
the discipline of the supervisor results from his willingness
to participate in a grievance proceeding provided for by a
bargaining agreement, Ebasco Service, Incorporated, 181
NLRB 768 (1970); (4) where the discipline of the supervi-
sor is an integral part of an employer's effort to stifle
unionism among his employees, Murray Golub, etc., d/b/a
Golub Bros. Concessions, 140 NLRB 120 (1962), Pioneer
Drilling Co., Inc., 162 NLRB 918 (1967), enfd. in part 391
F.2d 961 (C.A. 10, 1968), J.B. Martin Company, 164 NLRB
460 (1967), enfd. 395 F.2d 690 (C.A. 4, 1968), Consolidated
Foods Corporation, etc., 165 NLRB 953 (1967), Krebs and
King Toyota, Inc., 197 NLRB 462 (1972), Vada of Oklaho-
ma, Inc., 216 NLRB 750 (1975). .
In one of the first major cases in this area, Talladega
Cotton Factory, Inc., supra at 297, the Board held that the
discharge of supervisors for their failure to prevent the
spread of unionism was violative of the Act because "the
discharges plainly demonstrated to rank-and-file employ-
ees . . . [the employer's] fixed determination not to be frus-
trated in its efforts," and "the net effect of this conduct was
to cause nonsupervisory employees reasonably to fear that
the Respondent would take similar action against them if
they continued to support the Union." In enforcing the
Board's decision, the Court of Appeals for the Fifth Cir-
cuit, in which the instant case arises, merely noted that,
prior to enactment of the 1947 amendments, the "discharge
of a supervisory employee for refusing whole-heartedly to
engage in unfair labor practices on behalf of an employer
was recognized in this Circuit and elsewhere as unlawful
interference and restraint of the statutory rights of ordi-
nary employees," and that the amended Act did not dimin-
ish that protection. 213 F.2d at 216.
Subsequently, in Better Monkey Grip Company, supra,
where the Board found violative the discharge of a supervi-
sor occasioned by his giving testimony adverse to the em-
ployer in a Board proceeding, the Board offered an ex-
panded, two-pronged rationale for its conclusion. It relied
not only on the belief that the "net effect" of the discharge
"was to cause nonsupervisory employees reasonably to fear
that the Respondent would take the same action against
them if they testified against the Respondent in a Board
proceeding," but also on the theory that (115 NLRB at
1171):
Clearly inherent in the employees' statutory rights is
the right to seek their vindication in Board proceed-
BUDDIES SUPER MARKETS 955
ings . Moreover, by the same token, rank-and- file em-
ployees are entitled to vindicate these rights through
the testimony of supervisors who have knowledge of
the facts without the supervisors risking discharge or
other penalty for giving testimony under the Act ad-
verse to their employer.
The Fifth Circuit affirmed without significant comment.
Subsequently, in Oil City Brass Works v. N.L.R.B., 357
F.2d 466, 470-471, the Fifth Circuit explained the rationale
of its earlier decisions in some detail. It dismissed as irrele-
vant the factor of employee fear of retribution, a factor
upon which the Board had relied in finding violative the
discharge of the supervisor in Oil City for giving testimony
adverse to the employer there:
While the cases are not entirely clear, we hold that
whether rank-and-file employees would be put in fear
by Hammock's discharge is irrelevant and merely
clouds the real issue . Any time an employee, be he
supervisor or not, is fired for union activity rank-and-
file employees are likely to fear retribution if they em-
ulate his example. But the Act does not protect super-
visors, it protects rank-and-file employees in their ex-
ercise of rights. If the fear instilled in rank-and-file
employees were used in order to erect a violation of
the Act, then any time a supervisor was discharged for
doing an act that a rank-and-file employee may do
with impunity the Board could require reinstatement.
Carried to its ultimate conclusion, such a principle
would result in supervisory employees being brought
under the protective cover of the Act. Congress has
declined to protect supervisors and the courts should
not do by indirection what Congress has declined to
do directly. The principle that precludes reinstatement
where a supervisor is fired for union activity, even
though it instills fear in rank-and-file employees, also
precludes reinstatement where that fear is instilled be-
cause of. testimony given by the supervisor.
The real issue in this case is whether the Company
interfered with, restrained or coerced rank-and-file
employees in the exercise of their guaranteed rights
through the refusal to recall supervisor Hammock. In
N.L.R.B. v. Talladega Cotton Factory, 213 F.2d 209, 40
A.L.R.2d 404 (5 Cit. 1954), the Company fired super-
visors for refusing to commit an unfair labor practice.
We found that this act by the Company directly vio-
lated 8(a)(1) not because it put rank-and-file employ-
ees in fear but because it interfered with, restrained or
coerced them in the enjoyment of their rights secured
under the statute. The Act does not require the Board
to stand by powerless and watch an employer coerce
supervisors into committing unfair labor practices un-
der pain of being fired, but permits the Board to pro-
tect rank-and-file employees by allowing supervisors
to perform their statutory duties without fear. It is this
principle that requires us to enforce the Board's order.
The Court then went on to say, amplifying the Board's
second rationale in Better Monkey Grip, supra:
The Board's order should be enforced as an inher-
ent protection of its source of information necessary
to protect rank-and-file employees in the exercise of
their statutory rights. . . . Rank-and-file employees
have a right to have their privileges secured by the Act
vindicated through the effective administrative pro-
ceedings provided by Congress . Included in this privi-
lege is the right to have witnesses testify without fear
of being penalized by their employer . As in the instant
case , it may often be necessary to have supervisory
personnel testify. It follows, therefore , that any dis-
crimination against supervisory personnel because of
testimony before the Board directly infringes the right
of rank-and -file employees to a congressionally pro-
vided , effective administrative process , in violation of
section 8(a)(1).... [Id. at 471.]
The Fourth Circuit, after some initial hesitation ,' has ap-
parently adopted the Fifth Circuit 's Oil City rationale. In
N.L.R.B. v. Electro Motive Mfg. Co. Inc., 389 F .2d 61 (C.A.
4, 1968), enfg . 158 NLRB 534 , that court , citing Oil City,
agreed with the Board 's finding of a violation where the
supervisor had been discharged for giving a Board agent a
statement admitting that he had unlawfully threatened cer-
tain employees . The court further noted , 389 F.2d at 62:
Respondent contends that the instant case is distin-
guishable [from Oil City ], since , while a supervisor
may be legally compelled to testify at a formal Board
proceeding, here a statement was voluntarily given to
a Board investigator. In terms of the effective adminis-
tration of the Act , however , we see no distinction be-
tween the protection of managerial employees who co-
operate willingly with the Board and of those who
render assistance under legal compulsion . The effect
of the discharge , in either event , is to tend to dry up
legitimate sources of information to Board agents, to
impair the functioning of the machinery provided for
the vindication of the employees ' rights and, probably,
to restrain employees in the exercise of their protected
rights.
In N.L. R.B. v. Southland Paint Co., Inc., 394 F.2d 717
(C.A. 5, 1968), enfg . in part, 156 NLRB 22 ( 1965), the Fifth
Circuit agreed with the Fourth Circuit that a supervisor
who voluntarily furnished an affidavit to a Board agent
(the affidavit not going to the merits of a case , but to the
question whether the employer's request for a continuance
in a Board hearing should be granted ) warranted protec-
tion against reprisal?
The Board has, as well, afforded similar protection in a
situation not involving its own processes . In Ebasco Serv-
ices, Incorporated, 181 NLRB 768 ( 1970), four supervisors
were requested by a joint grievance committee established
under a bargaining agreement to voluntarily appear before
the committee to testify about certain grievances . The Trial
Examiner credited the employer 's testimony that he asked
the supervisors not to attend because he needed them on
the job . When they defied his instructions and appeared at
1 See The Visador Co. v. N.L.R.B., 386 F.2d 276, 282 (C.A. 4, 1967).
2 The Board had held (156 NLRB at 38) that Respondent's conduct "had
the tendency to interfere with the Board's ability to obtain relevant informa-
tion and supporting affidavits from supervisors, and thereby obstructed the
Board in securing vindication of employee rights protected by the Act."
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the place of hearing (although they did not testify, due to
postponement of the hearing), the employer demoted them.
The Trial Examiner's Decision, adopted by the Board, held
that, even though there was no indication in the record
whether the testimony of the supervisors would have been
helpful or harmful to the grievants, the resort to the griev-
ance procedure was an exercise of Section 7 rights, and the
imposition of punishment upon supervisors for their at-
tempt to give testimony which the grievance committee
considered potentially material tended to interfere with the
employees' "right to a full and fair hearing."
The policy underlying this line of cases essentially looks
to the future. The discharge of a foreman for having testi-
fied (or merely having made himself available to testify) in
a Board or grievance proceeding, or for refusing to commit
unfair labor practices, does not necessarily have an impact
on the immediate situation; the evil which the principle
seeks to avoid is the overhanging threat that similar con-
duct by supervisors in the future may provoke a similar
employer reaction, thus intimidating supervisors from en-
gaging in like conduct in the future.
It seems to me that the rulings in Better Monkey Grip,
Talladega Cotton, and Ebasco Services, Inc., clearly require
a finding of violation here. The Better Monkey Grip re-
striction against penalizing supervisors for cooperating
with the Board is grounded on the theory, in the words of
the Fourth Circuit in Electro Motive Manufacturing Compa-
ny, supra, that such conduct will "tend to dry up legitimate
sources of information," 389 F.2d at 62. Surely, the dra-
matic impact of the discharge of Matthews here will tend
to make Respondent's other supervisors fear that if they
should, in the future, furnish information, whether to an
employee or to the Board, adverse to Respondent in a mat-
ter relating to the union activity of employees, they will
suffer a similar fate. Thus, the effect of Matthews' termina-
tion reasonably promises to radiate beyond the issue of
disclosing information to employees, and to engender an
imminent fear among Respondent's supervisors that reve-
lation of similar information to Board representatives at
some future time will imperil their employment.
In like vein, the principle underlying Talladega Cotton is
apposite here. The rule that an employer may not "coerce
supervisors into committing unfair labor practices under
pain of being fired" is intended to "allow supervisors to
perform their statutory duties without fear" (Oil City
Brassworks v. N. L. R. B., supra, at 471). In the service of the
preservation of the statutory rights of employees, such a
rule frees supervisors from their duty of otherwise complete
loyalty to their employer. It recognizes the superior status
of the rights guaranteed by the Act, and is broad enough to
afford protection to the supervisor who seeks to thwart the
commission of unfair labor practices not merely by refus-
ing to engage in them, but also by making information
available to an employee who might be affected by the
proposed illegal conduct. The Talladega concept that the
overriding objectives of the statute permit a supervisor
openly to disobey an employer's order to infringe statutory
rights certainly must also permit him to disobey an
employer's command of silence when the supervisor's pur-
pose in doing so is to preserve those rights from infringe-
ment. A supervisor owes no obligation of mute fidelity to
an employer bent upon a lawless act.
Similarly, Ebasco Service, Incorporated, supra, compels a
finding that the discharge of Matthews violated the Act.
There the Board found a violation where the employer,
believing in good faith that he needed his foremen on the
job, disciplined them for disobeying his order and appear-
ing (but not testifying) at a grievance hearing before a joint
committee which had no power to compel their attendance.
The Board held that the punishment levied against the vol-
untary act of the supervisors, albeit in defiance of their
instructions, tended to prejudice the right of grievants in
such proceedings to "a full and fair hearing" under the
existing contract procedure, thus potentially abridging
their Section 7 rights. A fortiori, when a supervisor imparts
information to an employee, in breach of an employer di-
rective, that the employer is intent upon directly abridging
the employee's statutory right to affiliate with a union by
"building a case" against the employee in order to dis-
charge him, that act must be considered protected.
An additional policy reason for safeguarding the instant
conduct suggests itself. The purposes of the Act are, of
course, better advanced by deterring the commission of
unfair labor practices than by remedying them once com-
mitted. Sanctioning supervisory disclosure to an employee
of information that the employer is setting about to take
action immediately impinging on his rights will put the em-
ployee in a position to frustrate the "building of a case"
against him. In revealing this sort of information to an
employee, the supervisor not only serves the Act, but also
potentially saves the administrative process.
Although the Fifth Circuit (and, apparently, the Fourth
Circuit) has rejected the Board's alternative Better Monkey
Grip rationale that the discipline of a supervisor may also
be violative of Section 8(a)(1) because it might lead em-
ployees "reasonably to fear that the Respondent would
take the same action against them" for similar conduct
(115 NLRB at 1171), I would also find that evidence sup-
porting that ratio decidendi is present here .4 The record
shows that the other employees quickly became aware of
the reason for Matthews' discharge; as might have been
expected, he told them about it. In the words of the court
in King Radio Corporation, 398 F.2d at 22, "it is inconceiva-
3 See Grant's Home Furnishings, Inc., 218 NLRB 757 (1975), where the
employee was evidently cautious enough to impede the employer's effort to
"build a case" against him.
The Board has continued to apply that rationale with some frequency.
See, e .g., Gainesville Publishing Company, etc., 150 NLRB 602, 627 (1964);
Roper Corporation, 213 NLRB 136 (1974); and compare the majority and
dissenting opinions in Krebs and King Toyota, Inc., 197 NLRB 462 (1972).
But in Key West Coca Cola Bottling Company, 140 NLRB 1359, 1360 (1963),
the panel majority found a violation "whether or not employees knew of
Respondent's true reason for Dobarganes' discharge," and in Southland
Paint Company, Inc., 156 NLRB 22, 37-38 (1965), the Board adopted the
Decision of the Trial Examiner who held it doubtful that employees "would
reasonably believe that a similar fate would befall them" and relied instead
on the "tendency" of the supervisor's discharge to inhibit Board access to
information. The Ninth Circuit, in General Engineering, Inc. & Harvey Alu-
minum v. N.L.R.B., 311 F.2d 570, 574 (C.A. 9, 1962), seems to have accepted
that employee knowledge and fear is material; the Tenth Circuit, in King
Radio Corporation v. N.L.R.B., 398 F.2d 14, 21-22, relied on both the Oil
City Brassworks case and, "gals an additional basis," the inference that the
discharges would cause employees to "perceive in the treatment of supervi-
sors a reliable indication of what would befall them if they persisted in their
union activities."
BUDDIES SUPER MARKETS
ble" that Respondent would have thought that the reason
would have remained secret from the rank-and-file em-
ployees, since employee Ladd was so intimately involved in
the matter. Furthermore, I readily infer , as did the court in
King Radio Corporation, that, having such knowledge, the
employees would "perceive in the treatment of the supervi-
sors a reliable indication of what would befall them" if
they chose to engage in union activities.
Respondent seeks to shield its conduct in the protective
armor of "breach of confidence and failure to follow in-
structions." Such supervisorial obligations, however, may
not be erected into a defense of action which trenches
upon statory rights, as the above cases indicate.5 Ozark
Motor Lines, 164 NLRB 300 (1967), cited by Respondent,
can hardly be considered supportive of its argument. There
the Board agreed with the employer that it had not violated
the Act by discharging, for "insubordination," a supervisor
who had refused to speak to the employer's attorney during
preparation for a representation case hearing and had also
refused to sign a statement regarding his supervisory du-
ties . The Board, however, expressly noted (164 NLRB at
301): "At no point in its trial preparation did Respondent
make any improper demand upon Camden." Where, as
here, the demand for secrecy is improper, the supervisor
need not heed it. See , e.g., General Engineering, Inc., supra;
Brookside Industries, Inc., supra; King Radio Corporation,
supra.
This is not to say that supervisors are at liberty to make
random disclosure to employees of the details of an
employer's labor policy or of an anticipated campaign to
combat unionization. Employers are entitled to devise law-
ful strategies to convince employees that their interests
would not be served by unions, and they are further enti-
tled to impart information about those strategies to their
supervisors, in confidence and on pain of discipline for a
breach of that confidence. But employers have no legiti-
mate business discussing with their supervisors plans to vi-
olate the Act, and any "privilege" between them is forfeit-
ed when they do .6 The employer's side in the ongoing
conflict between labor and management may not be con-
sidered a council of war, nor the statute a battlefield. Su-
pervisors are aligned with management for most purposes,
but they need not dumbly tolerate lawlessness; as citizens,
they are entitled to freely notify concerned parties that
their employers intend to violate a Federal statute.'
For the foregoing reasons, I conclude that the discharge
of Matthews constituted a violation of Section 8(a)(1) of
the Act.
5 See, e .g., N.L.R.B. v. Brookside Industries, Inc., supra at 228, finding a
violation where the "reason of discharge was an alleged breach of trust, in
that she had not relayed to the company her husband's account of the June
meeting though she had been requested to obtain union information from
him and had reported unsuccess."
6 The Board , indeed , has held that an employer 's instruction to a supervi-
sor to withhold information from a Board agent is itself a violation of Sec-
tion 8 (a)(I), regardless of whether employees were aware of the instruction.
Grand-Central Chrysler, Inc., 155 NLRB 185, 188 (1965).
7 Compare the well-established exception to the attorney -client privilege,
terminating the privilege where "the desired advice refers not to prior
wrongdoing , but to future wrongdoing ." 8 Wigmore, Evidence §2298, p. 573
(McNaughton rev. 1961).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
957
The activities of the Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow there-
of.
CONCLUSIONS OF LAW
1. Buddies Super Markets is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By discharging Edward Thomas Matthews in circum-
stances constituting interference with, restraint, and coer-
cion of employees in the exercise of rights under Section 7
of the Act, Respondent has violated Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act by
the discharge of Matthews, I shall recommend that it cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
I shall recommend that Respondent be required to offer
reinstatement to Matthews, and to make him whole for any
loss of earnings he may have suffered by reason of his
unlawful discharge, by payment to him of a sum of money
equal to that which he normally would have earned from
the date of discharge to the date of a valid offer of rein-
statement, less his net earnings during that period, to be
computed in the manner described in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). I shall also recommend that
Respondent post an appropriate notice.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDERS
Buddies Super Markets, Fort Worth, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or taking other adverse action against
any supervisor in circumstances constituting interference
with, restraint, or coercion of employees in the exercise of
their rights under Section 7 of the Act.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is de-
signed to effectuate the policies of the Act:
(a) Offer to Edward Thomas Matthews immediate and
full reinstatement to his former job or, if such job no longer
exists , to a substantially equivalent job, and make him
whole in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and receipts , and all other records neces-
sary to analyze the backpay due under the terms of this
recommended Order.
(c) Post at its store #88, 2204 New York Avenue, Ar-
lington, Texas, copies of the attached notice marked "Ap-
pendix." 9 Copies of said notice, on forms provided by the
Regional Director for Region 16, after being duly signed
by its representative, shall be posted by Respondent imme-
diately upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered , defaced , or cov-
ered by any other material.
(d) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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
After a hearing in which all parties had the opportunity to
present evidence, it has been decided that we violated the
law by firing Supervisor Edward Thomas Matthews. We
have been ordered to post this notice. We intend to carry
out the order of the Board and abide by the following:
WE WILL NOT fire or otherwise discipline any supervi-
sor for informing an employee of our intention to dis-
charge him because the employee had signed a card
on behalf of a union.
WE WILL offer to take Edward Thomas Matthews
back at his old job or a similar one, and WE WILL pay
him for any wages lost, with interest, by him during
the period of his discharge.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection; and to refrain from any
and all these things.
WE WILL NOT do anything that interferes with these
rights.
BUDDIES SUPER MARKETS