W. R. Grace Co.

National Labor Relations Board - Board Decisions

Feb 16, 1979

240 N.L.R.B. 813 (N.L.R.B. 1979)

W. R. GRACE COMPANY 813
W. R. Grace Company and Retail Clerks Union, Local
445, a/w International Retail Clerks Union, AFL-
CIO-CLC. Case 25-CA 9594
February 16, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ND MEMBRS PENEItIO
AND TRl!ESDALE
On November 24, 1978, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief ' and Respon-
dent filed an answering 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 briefs
and has decided to affirm the rulings. findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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, W. R. Grace Company.
Owensboro, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IRespondent contends that the General Counsel's exceptions and sup-
porting brief should be rejected because of the General ('Counsel's fa.ilure to
submit a certificate of service and to serve a portion of his brief ,on Respon-
dent. The General Counsel. however, has remedied these omisslons. Ac-
cordingls. we dismiss Respondent's cillenlion that the General ( ounsel's
papers he struck
The General Counsel has excepted to certain credibility findindings made
by the Administrative Law Judge. It is the Board's established pohlic not to
overrule an Administrative Law Judge's resolutions with respect to crediblh-
ty unless the clear preponderance of all of the relevant exidence cins inces
us that the resolutions are incorrect. Standard Drn Wall Priduxic,. 1, 91
NLRB 544 (1950). enfd 188 F.2d 362 (3d ('ir 1951). We have carefully
examined the record and find no basis for reversing his findings.
In adopting the Administrative Law Judge's Decision, we do nol rels on
his characterization in sec. Ill. C, 3. par. 2. of his Decislon of Respondent',
violations of Sec 8(a)(l ) as technical in nature
Although the issue is not before the Board on exception. Member Penello.
noting his dissent in General American ran.sporlation ( orp.railin., 228
NLRB 808 ( I77, would not rel) on that case as an alternative ground for
rejecting Respondent's argument that the allegation lof the complaint con-
cerning the no-solicitation rule should be deferred to arhitration
In adopting the Administrative I.aw Judge's Decision, Member I ruesdale
finds it unnecessary to reach the issues raised hb (G;enral .4nrtrl TrtlV-
portaion, inasmuch as here there is no griesance-arbtration niachliners
aailable to the clerical emploe es
240 NLRB No. 117
DECISION
STAIEMENT OF THE CASE
HUTroN S. BRANDON. Administrative Law Judge: This
case was heard at Owensboro, Kentucky. on August 17.
1978. The charge was filed by Retail Clerks Union, Local
445. a/w International Retail Clerks Union, AFL-CIO-
CLC, herein called the Retail Clerks, on January 30, 1978.
The complaint was issued on March 31, 1978, and
amended on August 2. 1978. The primary issues are wheth-
er W. R. Grace Company, herein called Respondent, (a)
unlawfully promulgated, maintained, and enforced a rule
prohibiting its employees from concertedly discussing with
each other their rates of pay: (b) unlawfully maintained
and enforced an overly broad no-solicitation rule which
prohibited union solicitation in work areas on nonwork
time: (c) unlawfully interrogated its employees concerning
their concerted activities regarding rates of pay; and (d)
discharged its employee Joyce Riney on November 21. 197
7,1 in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, herein called the Act, because of her
union and protected concerted activities.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent at all material times has been engaged in the
manufacture, sale, and distribution of chemical and related
products with an office and production facility located at
Owensboro. Kentucky. During the past year Respondent,
in the course and conduct of its business operations, pur-
chased, transferred, and received at its Owensboro facility
goods and materials valued in excess of $50,000, directly
from States other than the State of Kentucky. During the
same period Respondent manufactured, sold, and distrib-
uted from its Owensboro facility products valued in excess
of $50,000. directly to States other than the State of Ken-
tucky. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent's answer admits, and
I find, that the Retail Clerks is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
Two others unions have been referred to in the record.
Respondent asserts in a motion to dismiss the General
Counsel's amendment to the complaint herein that its pro-
All daies are In 1977 unles otherwise specified
W . R . G R A C E C O M P A N Y_8_
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction and maintenance employees are represented by In-
ternational Brotherhood of Boilermakers. Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers and its Local Lodge
726, herein called the Boilermakers. and are parties to a
collective-bargaining agreement effective to April 2. 1979.
which agreement contains a grievance and arbitration pro-
cedure. Based upon Respondent's assertions I find that the
Boilermakers is also a labor organization within the mean-
ing of Section 2(5) of the Act.
A third union was referred to in the record, the Interna-
tional Steelworkers Union, herein called the Steelworkers.
While the record suggests that that union represents em-
ployees of the Green River Steel Company, apparently an
employer in the Owensboro vicinity, the record is inconclu-
sive in this regard. In any event, I find it unnecessary, as
will be detailed hereafter, to decide whether the Steelwork-
ers is a labor organization within the meaning of the Act.
11 IHI Al.l.l(i[1:) UNI AIR I ABOR PRAC rI(CLS
A. The Unlaltful No-Solicitation Rule
It is undisputed that Respondent at all times material
maintained and posted in its production and maintenance
section a list of plant rules with an introduction cautioning
employees that violations of work rules and practices
would result in disciplinary action by Respondent, depend-
ing upon Respondent's judgment of the seriousness of the
violation. Conduct prohibited by the work rules listed un-
der "Use of Company Facilities" included "3. Making use
of Company premises for unauthorized solicitation of
other employees for any purpose, whether charitable or
otherwise." Conduct prohibited under the caption "Person-
al Misconduct" included "11. Conducting unauthorized
activities on Company time or premises."
According to Respondent the foregoing rules and other
matters were the subject of an unfair labor practice com-
plaint against Respondent in Case 25 CA-274 in 1974,
but the complaint was withdrawn following a non-Board
settlement agreement which was entered into by the parties
(Respondent and Boilermakers) and the approval of a
withdrawal of the charge by the Regional Director of Re-
gion 25.2 The Remedy of the alleged violations under the
non-Board settlement with respect to Respondent's rules
was communicated to the Regional Director prior to his
approval of the withdrawal of the charge. That remedy
provided for a revision by Respondent of its work rules so
that employees "would be permitted to bring reading mate-
rials pertaining to the Union or to their protected concert-
ed activities into the plant and may read said materials
during the time not actually working in nonwork areas,"
and "employees may engage in union solicitation and other
protected concerted activities without permission during
nonwork time in nonwork areas."
Pursuant to the non-Board settlement agreement, Re-
spondent added an addendum to its published and posted
plant rules in September 1974, as follows:
2While ino specified in the colplin l in ( ase 25 (NA 6274. Respoidentl',
rules under Personal Misconduct included "13. Reading nonjoh rel;lted 1;m-
terial during woirking hours.'
Regarding the above rules, employees are permitted
to bring into the plant materials pertaining to the
Union or to their protected concerted activities and
may read said materials during the time not actually
working in nonwork areas. Employees may engage in
Union solicitation and other protected concerted ac-
tivities without permission during time not actually
working in nonwork areas.
The General Counsel attacks the "addendum" quoted
above as being unlawful inasmuch as it restricts solicitation
to non work areas. The Respondent, on the other hand,
offers several defenses: Respondent contends that the rule
is beyond the scope of the charge and original complaint;
that the rule does not pertain to clerical employees in-
volved in the instant proceeding; that no employee ever
protested the rule; that any dispute pertaining to the rule
should be deferred to the Boilermaker grievance proce-
dure: and, finally, that the "addendum" was approved by
the Board's Regional Director and published prior to the
beginning of the 6-month period prior to the filing of the
charge herein and complaint on the matter is barred by
Section 10(b) of the Act.
In agreement with the position of the General Counsel, I
conclude that the "addendum" is unlawfully broad inas-
much as it does prohibit, without legitimate justification,
union solicitation in nonwork areas on nonwork time.
"[The right of employees to solicit on plant premises must
be afforded subject only to the restriction that it be on
nonworking time." Stoddard-Quirk Manufacturing Co., 138
NLRB 615, 621 (1962).
I find no merit in Respondent's defenses to its "adden-
dum." The "addendum" is alleged to have violated Section
8(a)( ) of the Act. The charge contains a general 8(a)(1)
allegation, a "By these and other acts" provision. The
"other acts" provision has been held by the Board to be
"valid support for a complaint alleging specific acts in vio-
lation of Section 8(a)( ), even if the charge alleges a viola-
tion of Section 8(a)(3). which does not appear in the com-
plaint, and the complaint alleges specific 8(a)( I ) violations
not stated in the charge." Prince Pontiac, Inc.. 174 NLRB
919, 921 (1969). 1 thus find that the complaint amendment,
based on the same category of violation alleged in the
charge, i.e.. 8(a)(1) violation, had sufficient basis in the
charge and was appropriate.
The defense that the rule does not pertain to clerical
employees is ill founded, for the introductory paragraphs
of the rules state that the rules are "applicable to all em-
ployees regardless of their classification." Moreover, there
was no evidence submitted by Respondent that clerical
employees were ever advised that the rules were not appli-
cable to them.
['he fact that no employees may have protested the rule
is of no significance. Nor does Respondent's deferral argu-
ment carry any weight. Neither the Retail Clerks, the
Charging Party herein, nor the clerical employees involved
herein have any standing to process grievances under the
Respondent-Boilermakers contract. In any event, it is the
present Board policy not to defer to grievance-arbitration
machinery violations of the Act other than Section 8(a)(5).
General American Transportation Corporation, 228 NLRB
808 (1977).
W. R. GRACE COMPANY 815
With respect to Respondent's contention that the "ad-
dendum" should not now he attacked since it was earlier
"approved" by the Regional Director in allowing with-
drawal of the charge and complaint in Case 25 CA 6274 it
is sufficient to note that the record herein does not reflect
what considerations the Regional Director entertained in
taking such action. Much more was involved in the case
than Respondent's originally overly broad no-solicitation
rule. The Regional Director's acquiescence in the non-
Board settlement reflects, at most, his conclusion that the
overall public interest in the matter was best served at that
time by approval of the withdrawal of the charge and com-
plaint: Such action, however, does not stand as a "shield"
for the addendum for all time when attacked in a case filed
by a different charging party. 4 Moreover, even if it could
be assumed that the Boilermakers could waive employee
rights to "solicit" in its behalf in work areas on nonwork
time,. it could not waive such rights to solicit for other
unions in such areas nor could it waive such rights for
employees that it did not represent.
Finally. Respondent's contention that litigation of the
"addendum" is barred under Section 10(b) of the Act, has
no validity. The amendment to the complaint herein does
not allege the promulgation of Respondent's rules and the
"addendum" to be unlawful, only the maintenance and en-
forcement of them. While the evidence does not establish
that the rules were "enforced" it is clear that the rules have
been maintained at all relevant times within the 6-month
period prior to the filing of the charge herein. Accordingly.
Section 10(b) is not a bar to a finding of a violation with
respect to Respondent's maintenance of its no-solicitation
rule.
Based on all the foregoing, I find that Respondent vio-
lated Section 8(a)( I) of the Act through its maintenance of
its unlawfully broad no-solicitation rules which prohibited
union solicitation in work areas on nonwork time.
B. The Alleged Unlatzful Rule Ag.ainst Emplobvee Divcussion
Among Themselves of Their Respective Salaries.
The complaint alleges that Respondent, prior to July 30
I here was no showing that Ihe Reional D)lrcir a, cieei a..iare lh il
Respondent emploed other empl-sese nlot repreenied hb the Hoilermakers
to whornm the no-solicitatlon rule gotild pplk
4In this regard 5 I. R. / s rI airo, f lel [.tr ( oroaioit 449 1 .2d 774
(6th Cilr 19781. cited h? Respondenit n Iit hrief is dlstingullshble. for there
the same charging part\ hho ha:d enered into thie non-Boalrd settlemelt
Sith Boaird know ledge of all facts stubh.equentl .I ittacked the selttleient be-
fore the Board based upon he contention that respondent had fled to
comnpl, with the settlement lhe court held that the Bo.ld's decilsOn to
forgo inltersention lt the ime of Ihe sileltenil hs appro\al of the with-
drawal of the charge "left the nterpretatllon of the [seltlelelntl agreement
primaril? to the language and intent of the parties"
I note that the Board's decision. hi which I nl bolind. i I ntllrlmnl Mited
"It is irrelevant that the settlement agreement did not fuill re,ole ev er
collplallnt llegation. W'hit 1i impori.inl t, Ih.ll the agCreement. take a,;
a whole. clearls settled. to the nlon's ind Respiondentl ' sitlsfilllon the
outstanding compla;int" Ilrtrnl :h lrl- ( , ir/i.m, 211 I RB 1()14
(1977)
Compare A I. R B ffuiitu ( mianil ,f I ..... c. ., 41 t S 2
(1974)1 where the ('ourl held Iait ;1 ulion callnt cortiructiltlr wtsl e "\ios -
tribution" right, itf those aho sI1ppor t ii
an since. promulgated, maintained, and enforced a rule
prohibiting its employees from concertedly discussing with
each other their rates of pay and other terms and conditions
of their employment. The evidence on the issue was presented
by the General Counsel through his own as well as through
Respondent's witnesses.
In this regard, employee Nancy Reynolds. called by the
General Counsel, testified that when she was hired on De-
cember 9, 1975, she was told by Office Manager Frank
Greathouse, that what she would be making was "confi-
dential." Asked if she was ever told anything about disci-
pline for violating confidentialit). Reynolds testified that
she was told by Greathouse that employees could receive
discipline or be discharged for discussing salaries with
other employees. On subsequent occasions when she re-
ceived periodic wage increases, the last in January 1978.
Reynolds said that she was told by Greathouse that the
raises were confidential. Reynolds related, however, that
she had no knowledge of any employee being disciplined
for disclosing their own salary information.
Similarl. Beckv Calhoun. an office employee of Re-
spondent since 1973. testified that when she was hired in
1973 she was told by Office Manager Greathouse that all
salaries and raises were to be kept strictly confidential, that
if her salary was ever told to anyone else and it was found
out she would "be shown the front door." that this was to
be kept "strictly confidential."
Blenda Howard, a former office employee of Respon-
dent. testified that when she was hired on December 8,
1975. she was told by Greathouse that salaries were confi-
dential, raises were confidential, and "to reveal them
would be immediate dismissal."
Finally. Joyce Riney, the alleged discriminatee in the in-
stant case, testified that when she was hired in 1959 she
was told by then Office Manager Frank Riefle not to dis-
cuss her salary. that it was confidential. Subsequently.
when she received periodic wage increases, she was told by
whatever supervisor she was working for at the time that
the increases were confidential. She stated that the last
time she had been reminded of the confidentiality of this
information was by Office Manager Greathouse in March.
None of the foregoing General Counsel witnesses could
specify an) incident when an employee was disciplined for
breach of the confidentiality concerning salaries, except for
the discharge of Riney, the details of which will be set forth
below. On the other hand, Riney and Stevens both testified
that notwithstanding the admonitions about the confiden-
tiality of salary information, employees frequently dis-
cussed their respective salaries. and on some occasions
such discussion was with the knowledge of supervisory per-
sonnel but no disciplinary action was taken.
Respondent. through the testimony of Ron Tisch. plant
manager of Respondent at all times material, conceded
that although there never had been a written rule or policy
on the matter there had been a practice by Respondent
among its office employees to "discourage discussions of
salaries, or discourage giving out one's salary..." Ac-
cording to Tisch, this was done by asking an employee to
"maintain knowledge of his salary to himself or herself
since our salaried program has been on a merit basis and
reflects one's merit and performance." Office Manager
W. R. GRACE OMPANY
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greathouse similarly testified that "We prefer that they [sa-
laried employees] do not [discuss salaries] since raises are
based on merit, and the supervisor really is the only one
who is in a position to evaluate their performance." Great-
house admitted that each time an office employee was ad-
vised by him of a salary increase he reminded the employee
that Respondent preferred that they keep salaries condi-
fential, that they are not public, and the increases were
based on merit and ability. Greathouse denied that he had
ever advised any employees that they would be discharged,
disciplined, or out "the door" if they did discuss their wag-
es among themselves.
It is the General Counsel's position, based on the testi-
mony of the employee witnesses, that Respondent has
maintained and enforced a rule prohibiting employees
from discussing their wages and that such a rule violates
Section 8(a)(1) of the Act. The General Counsel cites as
authoritative proposition Blue Cross-Blue Shield of Ala-
bama, 225 NLRB 1217 (1976); Coosa Valley' Convalescent
Center, 224 NLRB 1288 (1976), and Jeannette Corporation,
217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976).
Respondent concedes in its brief that it had a policy of
urging employees not to discuss their wages because they
were considered confidential, but that it was only wishful
thinking, or a "precatory desire" inasmuch as it had never
done anything to halt such discussions or discipline em-
ployees for engaging in them. The Respondent would dis-
tinguish the cases cited by the General Counsel on the
premise that the policies or rules there involved either car-
ried with them penalities for breach of the policies or rules,
or discipline was actually imposed for breach of such poli-
cies or rules.
I do not accept Respondent's position that its policy was
based upon only wishful thinking. In so doing I credit the
testimony of Reynolds, Calhoun, and Howard that their
introduction to Respondent's "policy" on the confidentiali-
ty regarding salaries included the admonition that breach
of the "policy" resulted in disciplinary action. There is no
evidence that they were ever subsequently advised that
compliance with the "policy" was completely voluntary.
Moreover, the fact that Respondent may have on occasion
"overlooked" or condoned a breach of the policy by failing
to impose any discipline does not preclude the existence of
the policy as a viable one, and absent communication gen-
erally to employees as to retraction of the policy, they
could continue to expect it to be in force and effect. In-
deed, the continued effectiveness of the policy and the risks
to employees breaching the policy was demonstrated when
Greathouse admittedly announced to employees following
the discharge of Joyce Riney on November 21, as discussed
below, that Riney "was discharged for violation of a long-
standing confidence policy." In the absence of any evi-
dence of further explanation to the employees, or other
evidence regarding the existence of some other "confidence
policy," the employees could only conclude, whether or not
correctly, that Greathouse was referring to the policy of
confidentiality of salaries.
The Administrative Law Judge in Jeannette Corporation,
supra, stated with Board approval that an unqualified rule
which prohibits employees from discussing wage rates
among themselves "constitutes a clear impediment to, and
a restraint upon, employees' Section 7 rights to engage in
concerted activities for mutual aid and protection concern-
ing an undeniably significant term of employment." Id. at
656. While that case also involved the legitimacy of the
discharge of an employee pursuant to the rule, the determi-
nation as to the violative nature of the "rule" itself was
made without regard to the presence or absence of penali-
ties to be imposed for breach of the "rule." See also Coosa
Vallelv Convalescent Center, supra. Cf. Blue Cross-Blue
Shield of Alabama, supra, where a similar rule found to be
violative carried with it threats of disciplinary action for
breach of the rule. Accordingly, I find that Respondent
here violated Section 8(a)(1) by maintenance of its "policy"
against employees revealing, or discussing among them-
selves, their salaries. 6
C. The Alleged Discriminatory Discharge of Joyce Riney
1. The evidence regarding the discharge
Joyce Riney was initially employed by Respondent in
1959 as a general office clerk but subsequently occupied
the positions of accounts payable clerk and plant
manager's secretary. At the time of her discharge on No-
vember 21, and for a period of about 6 years prior thereto,
Riney held the position of junior accountant.
According to the testimony of Riney, in the summer of
1977 Respondent's office employees began discussing
among themselves the possibility of representation by the
Steelworkers. The record does not reveal the extent of the
discussion or whether the employees engaged in overt orga-
nizational efforts. In any event, Riney testified that in May
or June she related to Gary Ayer, plant service manager,
that the office employees had been discussing representa-
tion by the Steelworkers but that at the time of her report
of the matter to Ayer it was no longer being discussed.
Riney asserted to Ayer that she had asked questions that
had discouraged the organizational effort "because we did
not have the information that would have been necessary,"
and because she did not feel that the Steelworkers could
represent the office employees. I attach no significance to
Riney's conversation with Ayer in establishing Respon-
dent's knowledge of either her interest in union organiza-
tion at the time or her opposition thereto inasmuch as the
supervisory or agency status of Ayer was not alleged in the
complaint herein or litigated at the hearing. For the same
reason I do not accept Riney's testimony as establishing
general knowledge by Respondent of union discussions
among its employees generally at that time.
On September 12, still according to Riney, she found in
' In reaching this conclusion I do not accept the testimony of Tisch and
(irea.thouse to the effect that the "policy" of nondisclosure of salaries and
raises was expressed to employees in terms of "asking" them to comply or
expressing a "preference" that they comply. Such testimony was entirely
self-sering and unpersuasive. Even if I were to accept such testimony. I
would nevertheless find such policy to be iolative of Sec. 8a(1) inasmuch
as a supervisor's request" or expression of "preference" that an employee
comply ws ith a policy of confidentiality nevertheless implies that employees
run the risk of supervisor) displeasure and possible adverse consequences
for noncompliance to a degree sufficient to constitute interference, restraint,
and cocrcion under the Act
W. R. GRACE COMPANY 817
her mail on her work desk an envelope marked "Person-
al-Joyce Riney" which she opened and found therein two
slips of paper containing handwritten material. One slip
only noted "To be used for union organizing" while the
other slip contained the July salary rates of named office
employees, their salary classification, and their January
1978 salary rates. By deducting the July rates from the
January I rate it was possible for Riney to ascertain any
increases given or to be given to each office employee be-
tween those periods. 7 Riney put the information in her
purse and took it home.
Sometime in early October Respondent's office clerical
force, consisting of about 10 clericals, again became inter-
ested in union representation. During the week prior to
October 15 a number of office clericals signed union au-
thorization cards for the Boilermakers and scheduled a
meeting with that union on October 15. Riney took the
salary information she had received on September 12 and
made an adding machine tape reflecting the July increases
which she put in an envelope and transmitted to Bob
Crask, apparently a Boilermaker representative. She did
not attend the October 15 meeting. Subsequent to the
meeting, Crask advised her that he would need another
authorization card. He also told her that he could not un-
derstand the adding machine tape she had supplied to him.
Riney testified that thereafter she compiled a list of em-
ployees, their salaries, classifications, and increases
through January 1978 and submitted that information to
Crask on October 17 along with a union authorization card
she had obtained from employee Becky Calhoun.8
For reasons not explained in the record, it appears that
the Boilermakers referred the office employees to the Steel-
workers and a group of office employees met with that
organization on October 22. Again Riney did not attend.
but she was advised in discussions with employees Reyn-
olds, Stevens. and Howard during the following week that
Riney's salary compilation had been transmitted to the
Steelworkers and had been displayed to employees at the
meeting.
It was Riney's further testimony that at some subsequent
time not specified she had a conversation with Brenda
Howard in which Howard complained that she had not
received her pay raise although 6 months had expired since
Plant Manager Tisch testified that office emplo)ee,' salaries are re-
viewed every 6 months with the office manager making recommendaionls
with respect to salary increases to him Tisch and the office manager. Great-
house, discuss the recommendations and then l'isch makes a final local
determination as to the increases. He forwards such recommendations to
the vice president of manufacturing in the home office in an enelope
marked "Personal and Confidential." personall? posted h I isch. The sal-
ary recommendations are reviewed bh the ice president of anufacturing
and then the president of the division. either of hom ma? accept. reject. or
modify the plant manager's recommendation The employNee is only advised
of the increase at the time it becomes effective. and is not adslsed iof the
office manager's or plant manager's recommendations hecaiuse thes are sub-
ject to change by higher management, In the absence of contradiction. I
credit Tisch's testimony regarding this procedure
' Rine's compilation given to Crask was submitted into evidence as (; (C
Exh. 8. It is a typewritten docurent except for nformation supplied iio
Riney by Beck (Calhoun and office employee C(indy Chase which was
handwritten. According to Riney, some f the information appearing on the
compilation was a result of what she and emploees Brenda Holard and
Pally Stevens "thought" he rates should he for each ob.
her last one. Riney. "out of a clear blue sky" replied,
"Well, Cheryl Brown got your raise." "You won't get yours
until later." On cross-examination Riney explained that
she had made this statement to Howard in "retaliation" to
Howard's reporting to her that Office Manager Greathouse
had made a derogatory statement about Riney to the effect
that he would see to it that Riney would never become the
office manager because she would be a "little Hitler." Why
Howard's mere reporting of that statement would motivate
Riney to "retaliate" against Howard is unclear.
On November 18 Riney was called into the office of
Plant Manager Tisch who, in the presence of Greathouse.
inquired of Riney about her possession of confidential sal-
ary and raise information. Riney admitted that she had
information that had been given to her but that she had
used it for the Company against the union. Tisch inquired
as to why she had not told Greathouse or some other mem-
ber of management about it, and Riney replied that she did
not know, that it may have been a bad decision and she
would simply have to live with it. She admittedly told Tisch
that she could not tell him where she got the information
even if it meant her job. When Rinev asked how she
"stood" Tisch stated that he would have to give the matter
some thought and consider it over the weekend. Riney con-
ceded on cross-examination that when the subject of the
union was broached by her Tisch had stated that the union
was not the question, that the union was not involved, that
it was a question of her having confidential salary informa-
tion.
The following Monday, November 21, at the close of the
business day, Riney sought through Greathouse to see
Tisch and further explain her actions. In Tisch's office,
with Greathouse present, Riney attempted to explain her
failure to give Greathouse or any other management repre-
sentative the salary information, in part because of what
had been reported to her to the effect that Greathouse
would see to it that she was never made office manager.
Tisch announced to Riney that she was terminated but
offered to allow her to resign; she rejected the offer. Riney
testified in an ambiguous and conclusionary manner that
the stated reason for the discharge was her failure to tell a
member of management that she had confidential informa-
tion.
Respondent's evidence reveals a number of reasons for
the discharge of Riney. Initially, Tisch testified that Riney
was discharged because she had obtained and distributed
salary information that was stolen, information relative to
projected future increases. Office Manager Greathouse ex-
panded on the basis for discharge by adding as a reason
Riney's failure to reveal the source of her information and
her failure to turn the information she had over to manage-
ment. Other reasons for the discharge stated by Respon-
dent are found in the already mentioned explanation to the
office employees by Greathouse (i.e.. the breach of a long-
standing policy on confidentiality) and in Respondent's re-
sponse to the State Department of Human Resources, Di-
vision of Unemployment Insurance. With regard to the
latter, R. P. Deppen, Respondent's personnel manager, by
-' IlT lll . Rines testified lisch had referred nlt, to salars information
but ni cross-examlinalon and when confronted Hlth . pretrial statement she
iadIiltted he had il o, referred to raise information
W. R. GRACE OMPANY
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter to the Division dated November 30 stated:
Ms. Riney was discharged for availing herself of and
distributing confidential salary information of other
employees with Grace. Ms. Riney in her past position
of Junior Accountant, and her previous position as
Plant Manager's Secretary, was counseled on several
occasions by her supervisors that salary information is
strictly confidential and is not to be obtained or dis-
tributed to anyone.
In response to a division question as to the final act that
caused the discharge and when it happened Deppen's letter
stated:
In November it was brought to the Company's atten-
tion that Ms. Riney had availed herself of and distrib-
uted confidential salary information of other office
employees. When confronted with this information,
Ms. Riney admitted to obtaining and distributing sal-
ary information of other employees.
There is some conflict in the evidence as to how Respon-
dent learned of Riney's possession of the wage informa-
tion. General Counsel's witness Brenda Howard initially
testified that about 2 or 3 weeks after the October 15 union
meeting (around the first of November) she told Office
Manager Greathouse that she knew he had given her raise
to Cheryl Brown and that Howard's raise had been moved
"up" while Brown's had been moved "back." Greathouse
had admitted that he had moved Brown's raise "back."
(made it effective sooner), but he stated that it was because
Brown was doing grade V work and denied that it had
anything to do with oward's raise. Greathouse asked
where she had obtained the information but Howard testi-
fied that she declined telling him, other than stating that
she had seen it on a piece of paper with salaries on it. She
did not say who had the "paper." On cross-examination
Howard also stated that she had told Greathouse she knew
not only that her raise had been moved "up" from October
to December but that it had been reduced from $60 per
month to $55. Howard testified that she initially learned of
this from employee Nancy Reynolds at the October 15
Boilermakers union meeting, but that Riney had told her
the same thing a week later after the second union meeting,
the one with the Steelworkers. Finally, Howard testified
that a week or so after she had discussed this raise informa-
tion with Greathouse he told her that by process of elimi-
nation he knew who had the "paper" (on raises), the only
one who could have it and be in his office without arousing
suspicions. She said he did mention names. however.
Riney's admission that she told Howard that her raise
had been given to Brown has already been set forth. She
denied, however, that she told Howard that the raise she
would subsequently get had been reduced $5 per month.
Nancy Reynolds was called by the General Counsel but
was not questioned regarding Howard's claim that it was
Reynolds who told Howard about the cut in Howard's
raise.
Greathouse testified that around the first of November
he noticed that Howard had become "a little bit cold" and
uncommunicative so he called her into his office to talk to
her. Howard told him that Riney had told her that
Howard's raise had been given to Brown. Moreover, How-
ard told him specifically that her raise had been reduced
from $60 to $55 per month and delayed from October until
December while Brown's raise had been moved forward
from December to October. Howard further asserted, ac-
cording to Greathouse, that Riney had the document con-
taining this information but Howard had not seen it. Fol-
lowing his talk with Howard, Greathouse checked his
records and found that the facts and figures quoted by
Howard were, in fact, correct. Greathouse then reported
the matter to Tisch who checked his own records in an
effort to determine whether the information related by
Howard had come from his files or Greathouse's. It was
determined that Greathouse's files, specifically his work-
sheet on raises, had been the source of Howard's informa-
tion, for it was only Greathouse's worksheet, initially uti-
lized in the April raise, which reflected the amount of raise
change complained of by Howard." That worksheet had
been retained in a locked file cabinet in Greathouse's office.
The key to the file, however, was kept in Greathouse's un-
locked desk drawer.
Tisch testified that having concluded that the confiden-
tial information relative to salaries and raises had been
stolen, he took the matter up with Respondent's vice presi-
dent of manufacturing, Luz, and the division manager of
personnel during a visit to the Boston home office in mid-
November. It was decided that Riney should be confront-
ed in view of the seriousness of the matter and the conclu-
sion that the information had been stolen from
Greathouse's files.
The testimony of Tisch and Greathouse regarding the
interviews with Riney on November 18 and 21 does not
differ substantially from that of Riney. They do add detail,
however. More specifically, Tisch testified that Riney ex-
plained that Riney, during the November 18 interview, said
that she had used the information on wages to prevent
unionization on the premise that if the employees knew
what they would be getting in the future it would discour-
age their union activity. According to Tisch, Riney's refer-
ence to using the salary increase information against union
organization was the first knowledge he had of any union
campaign. Because he believed that the salary information
had been stolen and because of implications flowing from
a discharge under these circumstances, Tisch concedes that
he did offer Riney an opportunity to resign rather than be
A cop? of this wrksheetl s conained in the rec,rd herein as ( C. xh.
5 It is a hsl is f office eniplroes, hb their initials onlI., showing, ner aia.
their cla.sification grades. their April salar ratles, and, in the right margin.
(ireithutse's recorlnimendations with respect to the dates and amounts of
raises which eried as the basis flir (ireathouse's discussions with isch on
raises pposite the initials Bt I Brenda Howard] in the right margin. the
figure 61) was marked over with the figure 55 and the date of 10,77 was
a;lrked through and 12 77 inserted imnlediatl above it. In the right mar-
gii opposite the initials ('B ('herl Brown. the figure 45 is ound with a
date of 12 77 (.( I:xhs. 3 and 4 were identified by Iisch as being his
directll,, s. prepared in Septembh er earls Octoher to Jack liernes. pay-
nmasler in Respondent's ('Cambridge, Massachusetts, plant. changing the date
of ( hers I Bro n's 1977 second half salars increase from December to Octo-
her: and ow ard's front October to D)ecember. respectivel Both (.('C. Exh.
3 land 4 were miarked personal and confidential pursuant to Respondent's
pra;ctice and both aire in I sch's handwrtiting A comparison of (C. Exh.
with (;.( .-xh X. the compilation b Rines. shows the same raises and
anioLnti. Including an $80 increase for Rmne'. which according to (.('. Exh.
5. %ais se foir Riie¥ ill Janairs 1978.
W'. R. GRACE COM PAN Y 819
discharged. He denied, however. that the decision to termi-
nate Riney was based upon an, policy or practice of Re-
spondent of discouraging employees from discussing their
current salary rates. Rather. Tisch claimed that Rinev was
discharged because she had in her possession stolen prop-
erty, she refused to cooperative as to how she obtained that
property, and she distributed the "property," the future sal-
ary increase information.
Greathouse's testimony corroborates that of Tisch as to
the reasons for the termination of Rinev. Also he testified
that during the discharge interviews with Rinev. Rine' in-
dicated that the source of her salary information was a
man, but she continued in her refusal to name her source.
Greathouse. on the other hand, testified that neither he nor
Tisch revealed to Riney that Howard was their source of
information about Riney's possession of the salary infor-
mation.
2. The contentions of the parties
It is the General Counsel's contention, stated at the hear-
ing and in his brief, that the discharge of Riney was viola-
tive of Section 8(a)( 1 ) of the Act. In this regard. he argues
that either the discharge was pursuant to an illegal rule
against employees discussing their salaries (discussed un-
der section A herein). thus making the discharge unlawful.
or it was based upon Riney's distribution of information to
other employees about their current and future wages
which would also be unlawful to the extent that it was
based even in part upon the protected activity of discussing
"current" salaries.
It is urged by the General Counsel that Respondent's
asserted reasons for the discharge are pretextual and are. in
fact, designed to cover the unlawful reasons having to do
with her concerted protected activity in discussing or dis-
tributing information relative to current salaries. More-
over, according to the General Counsel. the evidence does
not establish that Rine, did engage in any misconduct in
obtaining the salary information, and so. even if Respon-
dent in good faith believed that she did, the discharge
would nevertheless be violative of Section 8(a)( I) under the
principles in N.L.R.B. v. Burnup & Sims, Inc.. 379 U.S. 21
(1964). where the Supreme Court held that Section 8(a)(1)
is violated if an employee is discharged for misconduct
arising out of protected activity when it is shown that the
misconduct did not occur.
While the General Counsel did not specifically abandon
the 8(a)(3) allegation concerning the discharge in his brief.
he did not argue the point. No argument was made regard-
ing Respondent's basis for knowledge of any union activit
on the part of Riney prior to November 18 when Tisch
called Rinev in to discuss her knowledge of the salarv in-
formation.it No specific evidence of union animus was of-
fered by the General Counsel, although he did extract from
Respondent a stipulation that Respondent did not want its
I An llln tttxil ' IChe part of Rmc,, s-uld haiic ben eha ,lf f
the Steelvlrker, or Bollerma.kcr, hbcalsIe the Rct.il ( erks. the ( hcll
Parti herein. did nI elgage In aii Orgal.illa.tlnlil cefforts .rilllon Reponll-
den's ffice emploccs uTlil after Rines dts hairgc I hc (cneral ( nlsel
dies not rgiuc elheralic
office clerical employees represented by a union.
The Respondent predictably argues that the discharge or
Rinev was for the reasons testified to b) Tisch and Great-
house. Respondent also argues the absence of evidence
-showing that union activity was a basis for the discharge
and points out that the only evidence of Respondent's
knowledge of such activity came from Riney herself when
first confronted about her possession of the confidential
salarN information. Moreover, that evidence revealed that
Riney supported the Respondent and was using the infor-
mation. not to aid the union, but to combat organization.
With respect to the General Counsel's argument that Ri-
ney was discharged for possession and distribution of cur-
rent salar' information. Respondent argues that it had nev-
er disciplined or discharged employees for discussing their
salaries even though it knew of such discussions. Further.
the information related by Howard to Greathouse was not
information on current salaries but on future salaries.
FinallN, Respondent argues that based upon what How-
ard had related to Greathouse, as well as upon Riney's own
admission to Tisch and Greathouse. as testified, the evi-
dence was compelling to Respondent that Riney's informa-
tion had been stolen. This, according to Respondent. was
not something dreamed up to provide a pretextual basis for
discharge. Riney was not discharged, so Respondent con-
tends, for "stealing" the information. even though she had
opportunity for access. hut for having and disseminating
the information relative to future wage increases.I :
3. Conclusion
Approaching the 8(a)(3) issue first, I conclude that the
record does not establish that either Tisch or Greathouse
knew at the time they first confronted Riney about the
salary information that there was any union activity going
on among the office employees. It was RineN who brought
up the issue of union activity as a defense to her having the
salary information. Even then Tisch turned the matter
aside. notwithstanding Rine's claim of having used the
information for Respondent's benefit by pointing out to
Rine, that the union was not the issue. Accordingly. I con-
clude that the record clearly reflects Respondent's concern
about Riney's possession of salary information prior to Re-
spondent's knowledge of any union activity on the part of
RineS. pro or con.
There is also little in the wav of union animus to a de-
gree sufficient to support a conclusion that in effectuating
Rinev's discharge Respondent was motivated by an incli-
nation to discourage union activity among its clerical em-
ployees. While I have found that Respondent did. in fact.
violate Section 8(a)(l) as alleged by the General Counsel.
such violations are either of a technical nature of otherwise
unrelated to specific union activity. Even when coupled
with Respondent's candid admission that it did not desire
to have its office employees organized. the 8(a)(I) viola-
tions do not reveal that hostilitv towards unions or union
activitN which is supportative of an 8(a)(3) conclusion in
Riney's discharge. Accordingly I find that Respondent did
II d1 d 11i i.ate lious, c i. ii rcru.plle 1o . qullnll h. the (ienler.l
(oiuncl. if Rinec had heen fired in effect fr iteaC.ini. I hink sou can dria
hJi1o it lllui lo *
W R. GRACE COMPANY i
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not violate Section 8(a)(3) in discharging Riney.
The more critical issue in the case as recognized by the
parties is whether Riney was discharged, even in part, be-
cause she discussed and disseminated information regard-
ing salaries of clerical employees contrary to Respondent's
policy against employees discussing their salaries previous-
ly found herein to constitute an 8(a)(l) violation. In con-
sidering this issue, I place no reliance on Riney's testimony
wherever it is contradicted by any other witness in the case.
I found Riney to be an unconvincing witness. Moreover,
on cross-examination she at first denied that she had told
Tisch that she had information on salary increases during
their November 18 encounter, but when confronted with
her prehearing statement she admitted that she had told
Tisch she had information on salaries and raises. In addi-
tion, she testified more than once that she did not know
what of the information she had related to future raises. I
find that patently incredible regarding the raises for herself
and for Brenda Howard. The compilation 3 she prepared
on the information given to her on September 12,' showed
that as of January 1978, her salary would be increased by
$80. Any claim that she did not know that pertained to a
"future" increase files in the face of fact. Further, Riney
would have had no basis for even speculating that Cheryl
Brown had gotten Brenda Howard's raise unless she knew
that Howard's raise had been in fact postponed and would
be granted at a future time. A belief that Riney pulled
Brown's raise "out of the clear blue sky," without any ap-
parent basis therefore, as exemplary of why Howard was
not getting her raise requires a naivete equivalent to that
necessary to allow a belief in fairies. Finally, Riney knew
her information pertained in part to future raises because,
based on Tisch's uncontradicted testimony in this regard,
she expressed the argument to Tisch that she was using the
information on raises to combat the union.
I credit Howard's testimony over Riney's that Riney told
Howard about the reduction in Howard's wage increase set
for December. Howard impressed me as credible, and her
credibility was more enhanced by the fact that she was no
longer employed by Respondent at the time of the hearing
and more likely to be impartial. I also credit her testimony
over Greathouse's that she did not tell Greathouse that
Riney had been the source of her information, but that I
week or so after her first discussion with Greathouse on the
subject he indicated to her that he knew who had the salary
information "by the process of elimination" and who had
access to his office. This also appears to "square" with a
time lapse between the first part of November when How-
ard related her information to Greathouse and November
18 when Riney was first confronted by Tisch. Had Riney
been specifically identified by Howard it is more likely that
Respondent would have acted more quickly.
As the Administrative Law Judge stated, with Board ap-
proval, in Ridgely Manufacturing Company, 207 NLRB 193
(1973), cited and quoted in part in the General Counsel's
brief:
13 G.C. Exh. 8.
14 Rine) destroyed the notes on which she had received the salar, infor-
mation from the anoninmous source after completing the compilation.
The applicable rule of thumb seems to be that employees
are entitled to use for self-organizational purposes infor-
mation and knowledge which comes to their attention
in the normal course of work activity and association but
are not entitled to their Employer's private or confiden-
tial records.8 Thus, Respondent could rightly deny Dur-
ban the list of its employees and their addresses and he
would not be protected in obtaining such list from
Respondent's records surreptitiously. [Id. at 196-197].
8 See Murray-Ohio Mfg. Co.. 148 NLRB 1541, enfd. 358 F.2d 948 (6th
Cir. 1966); Steel Apparel Companv, 172 NLRB 903, 912-913, enfd. in
pertinent part 437 F.2d 933 (8th Cir. 1971); Anserphone of Michigan,
Inc., 184 NLRB 305, compare, e.g., Hoover Co., 12 NLRB 106; Clear-
water Finishing Co., 100 NLRB 1473; Virronic, Inc., 183 NLRB No.
103: and Farlow Rubber Supply, Inc., 193 NLRB 570.
Considering that Riney had information regarding raises
not yet announced and previously known only to Tisch
and Greathouse, and since, according to Riney, the infor-
mation appeared mysteriously and anonymously on her
desk, it can hardly be found that the information came to
her "in the normal course of work activity and associa-
tion." Indeed, she made no such claim although she did, in
fact, unquestionably receive some salary information
through "association," even contrary to Respondent's poli-
cy against salary discussion among employees. Had all her
information come from the employee discussions, under
applicable Board law quoted above, her possession and
distribution to other employees of such information would
have been protected under the Act. But when confronted
by Tisch and Greathouse, Riney made no claim that her
information came from such sources. She could not be-
cause employees were not aware in advance of the dates
and amounts of their raises. Moreover, even if the informa-
tion as to current salaries could have been obtained
through legitimate sources, e.g. other employees, an
employee's surreptitious resort to employer files for such
information would not be protected under the Act.
Based on the foregoing, and since the information in
Riney's possession, particularly with respect to Howard's
raise postponement and reduction, paralleled Greathouse's
worksheet, I conclude that Respondent had a well-founded
basis for its belief that Riney had information secured or
"stolen" from Greathouse's files. Having that belief and
given Riney's background as plant manager's secretary and
her current interest in the activities of the plant manager's
secretary, 5 it was not unreasonable for Respondent to in-
quire of Riney the source of her information, and to con-
clude that she was involved in surreptitiously obtaining the
information when she failed to explain how she got it. By
failing to reveal how she got the information Riney not
only acknowledged that it was improper for her to have the
information, but also allied herself with whoever had sur-
reptitiously obtained the information. Under these circum-
stances, and in view of the existence of what I conclude
was an "honest belief" on the part of Tisch and Great-
house as to misconduct by Riney, I am not satisfied that
the General Counsel has sustained his burden of coming
Both lisch and Riney also testified to an allusion by Tisch in the No-
sember 18 confriontation with Riney to Riney's interest in "people coming
and going from" the plant manager's office and the actisities of the plant
itmanager s secretalrs
W. R. GRACE COMPANY 821
forward with sufficient credible evidence to prove that Ri-
ney was not involved in any respect in surreptitiously ob-
taining the confidential salary and raise information from
Respondent's files.' 6 Rubin Bros. Footwear, Inc., 99 NLRB
610 (1952). Accordingly, I find no merit to the General
Counsel's argument of a violation of the Act based upon
Burnup & Sims, supra.
Here, unlike the situation in Texas Instruments, Incorpo-
rated, 236 NLRB 68 (1978), cited by the General Counsel,
Riney never explained to Tisch or Greathouse, as she did
at the hearing, that she had come by the information inno-
cently. On the contrary. she failed to identify the source of
her information, "even if it meant her job." In the Texas
Instruments case, the employer was found to have violated
the Act when it discharged six employees for using confi-
dential information gleaned from the employer's files but
not by any of the six. The information had been received
by the six anonymously in the mail. There was no showing
that they refused to cooperate in the employer's attempt to
identify the supplier of the information. Moreover, the em-
ployer conceded that the six had not been the culprits in
securing the information from the employer's files. Re-
spondent here has made no concession that Riney was not
culpable in the manner of obtaining the confidential infor-
mation she possessed.
Considering all the foregoing, I find that Respondent
had a legitimate basis for Riney's discharge. But the issue
of whether or not Respondent confused the legitimate basis
for Riney's discharge with the illegitimate basis, i.e., her
discussion with employees concerning current salaries, still
remains. Significant to this issue are the testimonies of Ri-
ney and Patty Stevens that notwithstanding Respondent's
policy against employees discussing their salaries, the poli-
cy had never been enforced even though Respondent was
specifically aware from time to time that employees en-
gaged in such discussions. On the other hand, Respon-
dent's explanation to its office employees of the reason for
Riney's discharge and its statement to the division of un-
employment insurance are suggestive that the discharge
was based upon her discussion and contribution of "cur-
rent" salary information. Indeed, without further explana-
tion, there was no basis for the employees to conclude
otherwise. However, Respondent's disinclination to be
more specific with respect to particular alleged misconduct
had some reasonableness to it, particularly in light of
Riney's years of service to Respondent.
While 1 am reluctant to accept as a reason for Riney's
discharge anything other than those reasons publicy stated
by Respondent to its employees and given by Respondent
to any arm of a governmental body acting in its official
161 further note that Rines had testified that she had told AN re, in Mas
or June that she had discouraged organizational efforts in part hecause "e
did not hase the nformation that would have been necessary." In the ah-
sence of explanation as to the "information" necessar. and in ILe. of her
subsequent use of the "salary and raise" information which subsequentl,
mysteriously came into her possession. I conclude the necessars nforma-
tion" she referred to was salar. and raise Informatil. Moreover. ince she
had. by her own estimony, initiall? opposed rganlzallon n Mlas or June it
is incredible that anyone would suppl, her wiih salar, and raise information
ito be used for union organizing" unless she had in flact sought thal "infor-
mation."
capacity considering issues related to Riney's discharge, I
note that the publicly asserted reasons are not wholly in-
consistent with the reasons asserted at the hearing herein.
They simply fail to specify the type of confidential salary
information obtained and distributed by Riney. Although
Respondent had no announced policies regarding the con-
fidentiality of its office files and future raise information, it
appears logical and in accord with common sense that it
had such a policy, and such would be understood and im-
plicit among the employees, particularly in view of Re-
spondent's efforts to "discourage" employee discussion of
their salaries and the impression upon them that salaries
were "confidential."
Under these circumstances, and because I believe that
the actions of Tisch and Greathouse, reflected by the rec-
ord as a whole, reveal that their concern and motivation
was the maintenance of the integrity of Respondent's files
and records,"7 I am not persuaded that the General Coun-
sel has established by a preponderance of credited evi-
dence that Respondent violated Section 8(a)(1) of the Act
in the discharge of Riney. Accordingly. I shall recommend
dismissal of the complaint in this regard.'8
CON( LUSIONS OF LAW
I. Respondent, W. R. Grace Company, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail Clerks Union, Local 445, a/w International
Retail Clerks Union, AFL-CIO-CLC and International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers and its Local Lodge 726 are
each labor organizations within the meaning of Section
2(5) of the Act.
3. Respondent did not violate Section 8(a)(3) and ( ) in
the discharge of Joyce Riney on November 21, 1977.
4. Respondent. by maintaining a broad no-solicitation
rule among its employees prohibiting union solicitation
during nonwork time in work areas, and by maintaining a
policy of prohibiting its office clerical employees from dis-
cussing salaries and/or wage rates among themselves, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(aXi) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices effecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
I Re.ealing in this regard is Howard's credited testimon on
(;reathouse's statement that he had determined who had the salarv informa-
tiln b "process of elimination" and who had "access to his office." The
statement corroborates Greathouse's recognition of his files as the source of
the sallrs information and indicates no concern that the "paper" on salaries
referred o bs Howard as predicated on emplosee discussions
IN The complaint contains one allegation of unlawful interrogation of em-
plo! ees concerning their concerted activities regarding rates of pa b Tisch
on Nonemher 21 This allegation was not argued bh, he General (Counsel Ill
his brief Apparentl?. based on the date alleged. the allegation flows, fromn
the discharge interview between lisch and Rines he onl, interrogation
revealed therein had to do with I isch's efforts to find the source of Rilnes
infri t.ilo, n which she refused to drisulge. I do not iew this as the tpe of
interrog.ltoln which siolites the Act and base it, finding of a iolation
thereon i 'x1 /la l rulllt,tm /'ll, s ra dupra
W. R. GRACE OMPANY !
-- -
822 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
THit RFMEF)Y
Having found that Respondent has engaged in certain
unfair labor practices. I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act
to include the rescinding of its rules and policies found
unlawful herein and the posting of usual notices to employ-
ees.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c}
of the Act, I hereby issue the following recommended:
ORDER '
The Respondent, W. R. Grace Company, Owensboro,
Kentucky, its officers, agents, successors, and assigns.
shall:
I. Cease and desist from:
(a) Maintaining in effect a rule which prohibits employ-
ees from engaging in union solicitations in work areas on
nonwork time.
(b) Maintaining in effect any policy which prohibits its
office clerical employees from discussing salaries andor
wage rates among themselves.
(c) In any like or related manner interfering with, re-
straining. or coercing employees in the exercise of their
right to self-organization. to form,join. or assist labor orga-
nizations, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. 'Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Rescind and abrogate its rule which prohibits em-
ployees from engaging in union solicitations in work areas
on nonwork time.
(b) Rescind and abrogate its policy which prohibits its
office clerical employees from discussing salaries and/or
wage rates among themselves.
(c) Post at its facility in Owensboro, Kentucky, copies of
the attached notice marked "Appendix." 0 Copies of said
notice, on forms provided by the Regional Director for
Region 25. after being duly signed by Respondent's au-
thorized representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to insure that the notices are not altered, defaced.
or covered by any other material.
(d) Notify the Regional Director for Region 25, in writ-
ing. within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
11 Is tr 'IHtR ORDERfED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
I n the eent no exceptilo, are filed as prov ided h Sec. 102.46 of the
Rules, and Regulations of the Natlonal I.abor Relations Board. the findings,
conclusllns. and recommended Order herein shall. as provided in Sec.
1(0248 of thie Rules and Regulation,. he adopted b'h the Board and become
Its finding,. conclusions. and Order. and all objections hereto shall he
deeimed wis ed for ;ll purposes.
:. In the eent that this Order is enforced hb a judgment of the nited
Stlates ( url of Appeals. the words in the notice reading "Posted b Order
of ihe Naoillinal L.abor Relations Board' shall read "Posted Pursuant to a
Judgmcnl of the nited States (,urt of Appeals I nforcing an Order of the
Natioiial I.Lhbor Relations Board "
APPENDIX
NoTrlCE To EMPLOYEES
PosI ED BY ORDER OF TlE
NAIIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found that we
violated Federal law by interfering with our employees'
right to join or support a union, we notify you that:
WF W I. NOt maintain in effect our rule which pro-
hibits union solicitation in work areas on nonwork
time.
WE. WILL NOT maintain in effect our policy which
prohibits office clerical employees from discussing sal-
aries and wage rates among themselves.
WtE WIl. NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to join, or assist la-
bor organizations, to bargain collectively through rep-
resentatives of their own choosing, to engage in con-
certed activities for the purpose of
collective-bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities except
to the extent that such right may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by
Section 8 (a)(3) of the Act.
WE W.ILL rescind and abrogate our rule prohibiting
union solicitation in work areas on nonwork time, and
our policy prohibiting office clerical employees from
discussing salaries and wage rates among themselves
and we hereby notify our employees that they may
engage in such discussions on our premises subject
only to limitations permissible under the National La-
bor Relations Act.
W R. GRACE COMPANY