N.L.R.B. v. Brookshire Grocery Co.

• Decision Date: 19 December 1990
• Docket Number: No. 90-4071,90-4071
• Citation: 919 F.2d 359
• Parties: 136 L.R.R.M. (BNA) 2136, 59 USLW 2447, 117 Lab.Cas. P 10,466 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKSHIRE GROCERY COMPANY, d/b/a Super One Foods, # 601, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 359

919 F.2d 359

136 L.R.R.M. (BNA) 2136, 59 USLW 2447,

117 Lab.Cas. P 10,466

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKSHIRE GROCERY COMPANY, d/b/a Super One Foods, # 601, Respondent.

No. 90-4071.

United States Court of Appeals Fifth Circuit.

Dec. 19, 1990.

John Fawley, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Laurence S. Zakson, Barbara A. Atkin, Washington, D.C., H. Frank Malone, Director Region 15, N.L.R.B., New Orleans, La., for petitioner.

Stephen W. Smith, David M. Thomas, Fulbright & Jaworski, Houston, Tex., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before RUBIN, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Respondent Brookshire Grocery Company (Brookshire) promulgated a workplace rule forbidding the discussion of confidential wage information among its employees. Brookshire then suspended an employee for copying confidential wage information from his supervisor's files and distributing the information to his fellow employees. The administrative law judge (ALJ) found that in promulgating its rule Brookshire was guilty of an unfair labor practice, in violation of section 8(a)(1) of the National Labor Relations Act (the Act), but the ALJ concluded that Brookshire did not violate the Act by dismissing the employee who had copied the confidential wage information. Both the General Counsel and Brookshire filed exceptions to the ALJ's determination.

The National Labor Relations Board (the Board) agreed that Brookshire had violated section 8(a)(1) by promulgating its rule but reversed the ALJ's remaining findings, concluding that Brookshire had violated the Act by discharging an employee pursuant to its invalid workplace rule. The Board also determined that Brookshire had coercively interrogated its employees concerning their discussion of wages. The Board thus issued an unfair labor practice order directing Brookshire to reinstate the employee with back pay and to post remedial notices concerning its violations. Brookshire Grocery Co., 294 N.L.R.B. No. 34.

The Board now seeks from this court an order enforcing its decision. We grant the petition in part and deny it in part.

I.

The parties basically agree on the facts. Brookshire held a general meeting during which it announced that it would increase general wages and notify employees of the amount during one-on-one meetings. Mark Moise was a meat market clerk who several times a day had to go into the office of his supervisor, Gordon Cole, during the course of his work. Moise entered that office shortly after midnight on the day following the meeting. Inside he came across the evaluations of seven or eight fellow employees.

At his hearing, Moise admitted that he knew this information to be confidential; nevertheless, he copied the evaluations and wage-increase information for his own use. At the time, Brookshire had in force a workplace rule that made possessing or disseminating confidential wage information a ground for discharge.

Later that morning, Moise individually approached three of his fellow employees and shared the wage information with them. At least one of the employees was theretofore unfamiliar even with the amount of his own raise. The third employee whom Moise approached went to Cole the next day and reported that Moise had the list of wages.

After discussing the matter with the other employees involved, Cole decided to confront Moise. When asked about the list of wage increases, Moise denied any knowledge concerning it. After discussing the matter with store director Santone and district meat supervisor Jones, Cole recommended that Jones terminate Moise.

Two days later, Cole and Santone met with Moise and again asked him where he had gotten the list. Moise this time replied that he had gotten it from another employee whom he would not identify. Moise admitted during his hearing that he had lied about this in an attempt to protect his job.

Cole then advised Moise that he was being fired not for stealing the information--at this time Cole had no solid evidence of this--but for revealing confidential wage information to other employees. Santone testified without contradiction that he would have terminated Moise for this reason also, had he had adequate proof that Moise illicitly had taken the information from Cole's desk.

Moise filed a claim for unemployment benefits in Louisiana. Brookshire contested the claim, stating that Moise was discharged for misconduct and for revealing confidential information to three other employees. Although Moise testified falsely under oath that he had obtained the pay raise information from someone else, the appeals referee denied the claim, finding that Moise was discharged because he had disobeyed Brookshire's instructions by divulging confidential information about pay raises to other employees.

Moise also filed an unfair labor practice charge with the Board, alleging that Brookshire had promulgated an illegal rule prohibiting employees from discussing wage rates, had interrogated employees about protected activities, and had discharged Moise for engaging in protected activities. The ALJ found that Brookshire's rule prohibiting the discussion of wage rates did indeed violate section 8(a)(1) of the Act, but ruled that Brookshire's discharge of Moise was lawful.

The ALJ found that Moise was discharged because he showed other employees confidential information improperly obtained from Brookshire's files and that this activity was not protected under the Act. The ALJ also found that Brookshire did not unlawfully interrogate employees concerning protected activities. The ALJ, however, refused to give Brookshire Moise's affidavit, stating that section 102.118 of the Board's Statements of Procedure requires production only of those Board affidavits given by witnesses specifically called by the Board. Moise had been called by Brookshire as an adverse witness.

After reviewing the parties' exceptions, the Board, over a dissent, reversed the ALJ's findings in favor of Brookshire and instead found for Moise on all counts. ¹ The Board ordered Brookshire to cease its unfair labor practices, to reimburse Moise for pay lost after he was fired, and to reinstate Moise to his former or a substantially equivalent position with a clean record.

II.

Section 7 of the Act, 29 U.S.C. Sec. 157 (1988), guarantees employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with section 7 rights. Id. Sec. 158(a)(1). Concerted activities include matters of common concern, see NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 1104, 8 L.Ed.2d 298 (1962), which includes the right to discuss wages. D & D Distrib. Co. v. NLRB, 801 F.2d 636, 639-40 (3d Cir.1986).

In this case, the Board found that Moise was fired pursuant to an unlawful rule prohibiting the discussion of confidential wage information. This determination must be upheld if it is supported by substantial evidence in the record considered as a whole, not just evidence supporting the Board's findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 485, 71 S.Ct. 456, 463, 95 L.Ed. 456 (1951).

The substantial evidence standard is used even where the ALJ and the Board have come to different conclusions. Merchants Truck Line, Inc. v. NLRB, 577 F.2d 1011, 1014 (5th Cir.1978). However, "[w]hen the ... Board does not accept the findings of the [ALJ], the Court of Appeals has an obligation to examine the evidence and findings of the Board more critically than it would if the Board and the ALJ were in agreement." NLRB v. Florida Medical Center, Inc., 576 F.2d 666, 674 (5th Cir.1978) (citing NLRB v. Tom Johnson, Inc., 378 F.2d 342 (9th Cir.1967)).

As we have observed, " '[o]nly in the most rare and unusual cases will an appellate court conclude that a finding of fact made by the ... Board is not supported by substantial evidence.' " Merchants Truck Line, 577 F.2d at 1014 n. 3 (quoting Ward v. NLRB, 462 F.2d 8, 9 (5th Cir.1972)). However, we have not hesitated to overturn Board findings for employees where an employee is fired for asserted cause with "direct evidence of justification for the discharge," id., or "where the NLRB rejects an [ALJ's] credibility findings without justification." Id.

Brookshire promulgated a workplace rule that forbade the discussion of confidential wage information between employees. This rule patently violated section 8(a)(1). ² At issue here is how that violation affects dismissals made by Brookshire while the rule still was in force.

The Board contends that Moise was dismissed primarily for violating the invalid rule. In support of this position, the Board cites both an affidavit by Cole, in which he states that the decision to terminate Moise was based upon Moise's discussion of the wage information, and similar hearing testimony by Santone. The Board argues that these statements offer substantial evidence to support the Board's findings and that even if they do not, a discharge for violating a rule cannot be sustained where the rule is invalid on its face. See Jeannette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir.1976).

While we award considerable deference to the Board's findings, the Board cannot determine that Brookshire violated the Act unless Moise was engaged in a protected activity. Absent this, the Board's findings cannot stand, even under the lenient substantial evidence test. Florida Medical Center, 576 F.2d at 672.

Quite simply, wrongfully obtaining information from a company's private files is not a protected activity. See, e.g., NLRB v. Clearwater Finishing Co., 203 F.2d 938 (4th Cir.1953); International Business Machs. Corp., 265 N.L.R.B. 638 (1982); W.R. Grace Co., 240 N.L.R.B. 813 (1979). "While section 7 guarantees an employee the right to...