Litton Systems, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 288 (N.L.R.B. 1984)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Airtron, Division of Litton Systems, Inc. and Patri-
' cia Kenyon. Case 22-CA-10877
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
.ZIMMERMAN AND HUNTER
On 3 September '1982 Administrative Law Judge
Robert T. Snyder issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions 2., and to adopt the recommended
Order.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Airtron, a
Division- of Litton Systems, Inc., Morris Plains,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Respondent has excepted to some of the judge's credibility findings
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the _record and find no basis for reversing
the findings
2 We agree with the judge that the Respondent violated Sec 8(a)(1) by
discharging employee Pat Kenyon The General Counsel established a
prima facie case of a violation by showing that Kenyon engaged in pro-
• tected concerted activities, that the Respondent had knowledge of and
expressed displeasure with Kenyon's activities, and that the discharge fol-
lowed soon after the protected activity Further, the Respondent failed to
demonstrate that the same action would have taken place in the absence
of the protected conduct As found by the judge, the Respondent seized
on Kenyon's alleged release of confidential information as the basis for
the discharge In fact, as the judge further found, Kenyon did not make
the alleged disclosure Accordingly, we find that the Respondent's dis-
charge of Kenyon violated Sec 8(a)(I) of the Act We need not pass on
the Judge's discussion, based on an arguendo assumption, of the ramifica-
tions if Kenyon had revealed the Respondent's information
Subsequent to the judge's decision, the Board issued Our Way. Inc , 268
NLRB 394 (1983), in which it overruled T R W Bearzngs, 257 NLRB 442
(1981), relied on by the judge, and returned to the principles set forth in
Essex International, 211 NLRB 749 (1974) Nonetheless, as the Respond-
ent's rule prohibited solicitation during "working hours," we find under
Our Way that the rule was presumptively invalid Further, since the Re-
spondent failed to clarify its presumptively invalid rules, its maintenance
was unlawful
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. Pur-
suant to a charge filed on May 22, 1981, by Patricia
Kenyon (Kenyon), a complaint in this proceeding was
issued on July 6, 1981, alleging that Almon, Division of
Litton Systems, Inc. (Airtron or Respondent) violated
Section 8(a)(1) of the National Labor Relations Act in
that within . the six months prior to the filing of the
charge and thereafter to date, 1 including in March 1981,
Respondent has. maintained, and enforced, an invalid no-
solicitation rule, and that on May 19, 1981, it discharged
Kenyon because she engaged in concerted activities for
the purpose of collective ,bargaining or mutual aid or
protection. Respondent filed an answer denying the sub-
stantive allegations of violations of the Act. Full 'hearing
was held on May 13, 1982, after the record opened brief-
ly to consider and grant' an adjournment request on
March 17, 1982.
On the entire record in this case, from my observation
of the demeanor of the witnesses, and after having con-
sidered the briefs filed by the General Counsel 2 and Re-
spondent, I make the following -
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware Corporation. The unincor-
porated division involved in this proceeding has its prin-
cipal office and place of business in Morris Plains, New
Jersey, where it maintains a facility engaged in the busi-
ness of manufacture, sale, and distribution of microwave
components, laser crystals, simulated jewelry, and related
products At all times material herein, Respondent annu-
ally caused to be manufactured, sold, and distributed
from the Morris Plains facility products valued in excess
of $50,000, of which products valued in excess of $50,000
were shipped from the facility in interstate commerce di-
rectly to States of the United States other than the State
of New Jersey. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
Respondent employs several hundred employees at the
Morris Plains, New Jersey facility, including office and
plant clerical employees and a complement of production
employees. They are not organized
Respondent admits that about June 25, 1979, it promul-
gated the following rule:
It shall be considered a violation of company rules
for an employee to
1 General Counsel clarified that by the allegation related to the mainte-
nance of the no-solicitation rule he did not Intend the language therein
describing the rule's promulgation on June 25. 1979, as an element of the
violation but was only attacking the rule's maintenance within the 10(b)
period
2 The motion to correct the transcript filed with the General Counsel's
brief is hereby granted, the corrections it embodies have been physically
made on the original transcript, and the motion as approved has been
physically attached to the transcript with a notation thereon noting its
adoption
273 NLRB No. 43
LITTON SYSTEMS 289
v) Solicit or canvass for any purpose without Per-
sonnel approval, such as selling chances or mer-
chandise during working hours.
AccOrding to Personnel Manager Paul Csigi, the ,rule
was in effect in 1981—it had never been rescinded but
neither had it been enforced by the Company. In 1979,
on a review and update of company personnel policies
which had commenced in 1978, Respondent mailed sum-
maries of company policies as they appeared in policy
manuals to all employees at their homes and provided
them to all new employees as they were thereafter em-
ployed. Rule v is contained in a memorandum to all em-
ployees dated June 29, 1979, and entitled "Up-date of
Airtron Policies #3." Rule v is one of a series of 23 rules
specifically set forth in this memorandum and preceded
by the heading "Disciplinary Action—all employees
6/25/79" and the statement "Almon recognizes the ne-
cessity of establishing and maintaing regulations for the
acceptable conduct of employees and to provide for fair,
constructive and consistent disciplinary action whenever
an employee fails to observe such company rules and
regulations." 3 The list of disciplinary rules is immediate-
ly followed by a description of what Respondent agrees
may be characterized as a "progressive disciplinary
policy," that is, a policy permitting but not requiring, de-
pending on the infraction, a series of progressively more
severe disciplinary measures from verbal warning to
written warning, suspension, and; finally, discharge, nor-
inally to be meted out by the supervisor but, in the case
of serious offenses, with consultation of the industrial re-
lations (personnel) director to ascertain the appropriate
disciplinary 'action.
With respect to the no-solicitation rules' enforcement,
the evidence appears to bear out Personnel Managers
Csigi's assertion that it was not enforced, at least until
March 1981. 4 Before that date, all nature of solicitations
of employees, both before and during working time, to
sell raffle chances, combinations or numbers in sports
pools, home products, and food stuffs and even one to
sign a petition to' replace an employee used soda machine
dispensing drinks in paper cups with one dispensing
canned sodas, 3 were conducted with managerial and su-
pervisory knowledge and consent and even, in some re-
spects, with their participation, and without any attempt
to enforce the rule
A few month's before the Airtron personnel policy
memorandum containing the disciplinary rules was issued
to employees, another .memOrandum, 'titled "Update of
Airtron Policies—No. 2" and dated April 26, 1979, was
issued. Among other subjects, it dealt with Respondent's
3 Omitted from the list of disciplinary rules is any mention of the al-
leged ground for the discharge of Kenyon on May 19, 1981, on which
Respondent relies, to wit, disclosure of confidential financial information
outside the accounting department This ground is unrelated to Rule r),
another among the 23 disciplinary rules promulagted on June 25, 1979,
which prohibits disclosure to any person or organization of confidential
information which would weaken the competitive position of the Compa-
ny
4 All dates hereinafter shall refer to 1981 unless otherwise noted
6 This undated petition, handwritten on blank paper and signed by 141
employees, iricluding Kenyon, was initiated by employee Paul Jacobs at
some unspecified time between January 1979 and March 1981
sick pay policy for hourly, weekly, and salaried employ-
ees That policy provided, inter aim, for an accumulation
of a maximum number of paid sick days by months and
years, and permitted the accrual and payment of unused
sick days on certain occasions and in accordance with a
certain formula for hourly and weekly employees This
memorandum also contained a policy related to storm
closings. The gist of it, relevant to this proceeding, was
that on those occasions that the Company found it neces-
sary to close the plant and suspend normal operations,
lost time up to two continuous days per emergency for
hourly and weekly employees would be paid from their
accumulated sick pay but any such lost time would not
affect the good attendance bonus. There is good reason
to believe that the implications of this storm closings
policy did not make much impression on the employees,
generally, at the time this policy was adopted and made
known.
On Thursday, March 5, because of a snow storm, the
plant closed at 2 p m. and all employees, except- for a
few who were permitted to finish certain work tasks,
were sent home. Kenyon, who worked from 8 a.m. to
4.45 p m., had asked to remain at work but had been
denied permission to do so By memorandum dated
Monday, March 9, Personnel Manager Csigi notified all
employees as follows:
Due to snow storm closing Thursday, March 5,
1981, any lost time will be paid from accumulated
sick pay as per storm closing policy.
Should you not wish to be paid from sick pay
please notify your supervisor who will notify the
Payroll Department.
Among other employees, Kenyon's lost time was made
up from her accumulated sick pay
Employee Kenyon, one of two accounts payable
clerks, employed since January 15, 1979, after thinking
over the Company's policy, came to the conclusion it
was not fair and that she was going to do something
about it. Sometime after the March 9 notice, she went to
Csigi's office, stood in the doorway, and told him, "Paul
. I think the storm closing policy stinks." According
to Kenyon, he replied, "I agree with you, Pat, it's
unfair" Kenyon continued: "And, I said, 'I'm really
upset about it.' I said, 'I'd like to start a petition' And he
said, `Go ahead " She then left Csigi's office.
Csigi agreed that Kenyon's testimony relating this con-
versation was accurate for the most part. He disputed
Kenyon's version of his response, claiming he said,
"Fine, do what you have to do." This conveys, in sub-
stance, the import of Kenyon's version of his last re-
sponse. Csigi did not specifically dispute his personal
agreement with Kenyon's opinion that the policy was
unfair. Even if he had, I credit Kenyon that Csigi, in
fact, voiced agreement with Kenyon. I conclude that
Csigi, who started in his position for Respondent as re-
cently, as October 1, 1979, was the most truthful of Re-
spondent's witnesses, and took care to testify as accurate-
ly as possible. He was not asked about his initial response
to Kenyon on direct and, I conclude, consciously avoid-
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed disputing Kenyon's attribution to him of his initial re-
sponse to her while on cross-examination.
Shortly after her talk with Csigi, Kenyon initiated a
petition designed to convey the employees' dissatisfac-
tion with Respondent's storm closing policy. In contrast
to the soda machine petition, Kenyon arranged to have
the petition typed on Airtron letterhead It stated the fol-
lowing in capital letters:
We feel strongly that the storm closing policy as
it is now written penalizes- the hourly and weekly
employee. When the announcement was made on
March 5th that Airtron was closing the building at
2 p m., nothing was mentioned at that time that the
employees who were being sent home would not be
paid for the remainder of the day. Those who
wished to stay and complete the work day were not
given the opportunity to make that decision for
themselves In effect, Airtron locked us out and is
now using one of our benefits to pay us.
Kenyon divided up the solicitation with Paul Jacobs.
Hers is the first signature. A total of 92 signatures of em-
ployees were obtained and take up three full columns
below the typed petition and 1-1/3 columns on a second
attached blank page. They included names of employees
in all plant locations, including production employees.
Jacobs solicited primarily the production workers. Ac-
cording to Kenyon, and not disputed by Respondent, she
personally solicited roughly half of the signatures during
her own work breaks including lunchtime and while on
worktime both at her own work cubicle, in the cafeteria,
and while on work trips through the plant.
On March 13, Kenyon and Jacobs took the completed.
petition to Csigi's office. The employees handed the peti-
tion to Csigi and told him they would like Donald
Lepore, president of Airtron, to see it and requested that
they get some sort of answer. Csigi said okay. The same
day, Kenyon received a 6-month evaluation of her work
performance from Edward Griffin, cost accounting man-
ager and her immediate supervisor She saw but was not
given a copy of her review, which described her per-
formance as "fully 'satisfactory." Following her work
review, she told Griffin she had started a petition to pro-
test Respondent's storm closing policy and had turned it
in to Csigi. Kenyon testified Griffin responded, "Pat,
why?" Kenyon then testified she explained why, that
"we felt it was unfair to the employees to have their sick
time docked." Griffin did not deny making this state-
ment, and I credit Kenyon.
Kenyon was a highly credible witness. Her answers on
direct and cross-examination were invariably direct, re-
sponsive, and thoughtful and, when she was asked to
repeat on cross-examination conversations she had testi-
fied to on direct, she did so consistently, accurately, and
confidentially. Not once did she lose her composure
even when placed under stress by a vigorous cross-exam-
ination. Her explanation as to what on the surface ap-
pears to be a discrepancy between her testimony and
pretrial affidavit was typical of her direct, intelligent, and
trustworthy demeanor. Respondent's counsel pressed her
to admit to a conflict between her affidavit in which she
denies ever being warned or reprimanded as an employ-.
ee and her trial testimony in which she related an inci-
dent which occurred. in 'early April following the submis-
sion of the petition to Csigi and the conversation with
Griffin. According to Kenyon, Griffin called her into
Respondent's board room. They were alone. He told her,
"Pat, Mr. Lepore was very upset over the petition. He
thought it was an extreme action,, no more petitions,
Pat." Kenyon testified' she replied, "I can't say that," to
which statement Griffin did not respond:
During cross-examination; when asked whether she
had ever received a reprimand for circulating the Peti-
tion, Kenyon testified that she had when Griffin spoke to
her as described above. Later, when given an opportuni-
ty, which she sought,' to explain-the apparent discrepan-
cy with her, swoi:n pretrial statement, Kenyon stated
that, at the time she gave the affidavit tb the Board
agent, they were discussing her work performance re-
views and the statement in her affidavit related to such
reviews and' the time before the petition was started, and
further, that until "-questioned as to whether the early
April meeting with Griffin constituted a Warning or rep-
rimand she was not even sure it eould be so termed. I
find this explanation totally satisfactory and more than
sufficient -to negate Respondent's claim implied in its
brief at pages -6-7 that Kenyon's credibility as a witness
was thereby impeached.
Griffin acknowledged on cross-exammatiOn that at the
early April meeting he held with Kenyon he told .her the
company president thought the'petition was an extreme
action but denied he also told het- that company presi-
dent was upset or that he also said no 'More petitions.
Griffin also acknowledged, he was aware al - the time that
Kenyon had instigated the petition. -In this conflict, I also
credit Kenyon. In spite of Griffin's denial on cross-exam-
ination, I find that Griffin believed that his own evalua-
tion was affected by Kenyon's actions, that what Kenyon
had done was a reflection on his supervi sion, and that he
sought the opportunity of the meeting with Kenyon to
attempt to, foreclose any further concerted conduct on
her part It further appears, and I infer, that the meeting
was not Griffin's own idea .Griffin's own supervisor,
Vice President of Finance Robert Gughelmi, had in-
formed Griffin of Company President Lepore's displeas-
ure with Kenyon's conduct. Furthermore, during the
same time frame that Griffin spoke with Kenyon, he was
also meeting individually with each of the employees he
supervised to review with them the subject of a two-
page memorandum issued to all supervisors by Personnel
Manager Csigi under date of March 24, dealing with the
storm closing policy, and which Csigi had thereafter dis-
cussed with the Airtron supervisors at several group
Meetings in order to advise them how to present the sub-
ject matter to the individual-employees.
After fii-st reporting the filing of the petition by- a
group of Almon , employees who felt the closing of the
plant the previous Thursday locked them out - and result-
ed in the- removal of a benefit when they were paid out
of sick pay, the memorandum went on to described the
policy as fair and laid out the thinking behind it. It fur-
ther reported that the policy had been distributed to all
LITTON SYSTEMS 291
employees on April 26, 1979, and to all new hires after
that date, and to date "has not once been questioned
through any channel of communication, i e., group meet-
ings, communicator, supervisor, etc." The memorandum
went on.
By presenting a petition, these employees bypassed
the most important link in the chain of command,
the supervisor. All of our _policies are subject to re-
vision. By communicating their opinions to their su-
pervisor, employees have a voice in this policy revi-
sion.
Many employees expressed the feeling they did not
have the option of staying and working because
they did not have sick time. We must make it clear
that we close the plant for the safety of all in-
volved, and we will allow people to remain in the
plant only if the work they are doing cannot be in-
terrupted, such as someone in the middle of a coat-
ing run, and only if there is adequate supervision.
The memorandum concluded by asking each supervi-
sor to speak_ to those people who signed the petition and
make the points previously discussed which were then
enumerated Among them was "the item that the supervi-
sors should encourage employees to bring problems to
their supervisor
In his individual' meetings with employees, amOng
other things, Griffin stated he told them "that the peti-
tion as received, that they were looking for—the lines of
communication should be directly from their—from
them to their supervisor and from the supervisor up
above; that there is an open door policy which we can
follow."
The other senior accounts-payable clerk besides
Kenyon at the time, Rita Petrozzo, corroborated Grif-
fin's testimony on the individual supervisory meetings
with respect to the storm closing protest petition Pe-
trozzo, who was called alone into Griffin's 'office several
weeks after the petition had been turned in, in late
March -or early April, reported, inter aim, that Griffin
had advised her that in the future "you were to come to
your supervisor with any problems." It also appears that
all Airtron employees who signed the petition were indi-
vidually addressed by their supervisors in accordance
with the memorandum
Kenyon and Petrozzo shared a cubicle which opened
on a large room in which approximately eight other ac-
counting personnel were employed. As senior accounts-
payable clerks they paid invoices for materials that Air-
tron purchased and filed paid bills. This work entailed
"matching invoices to purchase orders and checking into
any problems which arose with the various transactions.
Kenyon, in particular, picked up the purchase orders
every morning in the receiving department.
Just Outside their cubicle were filing cabinets which
housed purchase records for the current and immediately
preceding fiscal years, 1981 and 1980. The records in-
cluded copies of the suppliers' invoices and vouchers evi-
dencing payment for the merchandise Files for earlier
years starting with 1979 were stored in a separate loft
area above the stock room. Stored in these cabinets were
the records, among others, of the' cost borne by Re-
spondent of an annual weekend spent _by Respondent's
key 25 executives those 8 or 9 who reported to Compa-
ny President Lepore and their first-line deputies—and
their spouses (called the Plan 1 meeting) reviewing the
financial plan for the next year, setting targets, and so-
cializing. For the past 3 years, the weekend meeting had
taken place in May at hotels in various resort areas. In
1979, it was held at Shawnee on the Delaware, in 1980 at
Hershey, Pennsylvania, and in 1981 it was scheduled for
Atlantic City, New Jersey. The 1979 trip cost the Re-
spondent roughly $14,000, the 1980 trip cost the same,
and the 1981 , trip cost approximately $18,000. The filed
material for the 1979 and 1980 weekends comprised
single vouchers evidencing Respondent's payment of the
total hotel invoices,6
The evidence establishes that Kenyon, as well as Pe-
trozzo and other accounting personnel, and others who
asked for permission for a particular purpose, usually re-
viewing their own expense reports, and including Ed Bu-
kofsky, manager of the purchasing department, had
access to these accounting files, both , current and those
stored in the loft The evidence also 'shows that Kenyon
probably filed the vouchers relating to the 1980 Plan 1
trip to Hershey, Pennsylvania, but that the invoices relat-
ing to the Plan 1 meeting did not come to her for pay-
ment but 'to someone else in the accounting department,
since she arranged payment of job cost invoices related
to materials purchased by Airtron, and not those related
to such fixed indirect costs as freight and utilities, and
often executive trip invoices were forwarded directly to
the - personnel department or the company president's
office
None of the accounting files were Marked confidential
and they were not locked Also, as earlier noted, no
policy or rule distributed to employees prohibited disclo-
sure of financial information to unauthorized personnel
or those who would not normally deal with the informa-
tion, although according to Robert Gughelmi, vice presi-
dent of finance, when hired, accounting employees were
informed that all financial information was confidential."'
Late on Monday, May 18, Joseph LaSchiavo, vice
president of manufacturing, told Gughelmi that he had
learned from Ed Bukofsky that production employees on
the shop floor were circulating information about the
cost of the management trip and they had received it
from Mattie Kitchen, a receiving clerk who worked in
an area adjacent to the production area The 1981 week-
The record is unclear as to whether the individual participants filed
expense reports covering their attendance and proportion of hotel ex-
penses Incurred at the conference -
I credit Kenyon's testimony that she did not recall ever having been
told before the day of her discharge that she could be discharged for
passing on confidential information and that she was not made aware of
any such prohibition and never gave any thought to one Employee Pe-
trozzo also had never been formally advised that the executive Plan 1
meeting information was confidential although It may have been stated in
some Informal way Thus, it appears that whatever effort Respondent
made to alert accounting employees at their hire to restrictions on finan-
cial dislcosure was not effective or memorable This is confirmed by Re-
spondent's failure to include this restriction in its extensive list of discipli-
nary rules initially distributed in 1979
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end Plan 1 meeting at Atlantic City the weekend of May
16 and 17 had Just been held.
Kitchen was called in Tuesday morning, May 19, by
Bukofsky, her supervisor. According to Kitchen, Bu-
kofsky told her he knew that she had information con-
cerning a trip, that the company president was very an-
noyed about it, and that it was really none of her busi-
ness what Lepore did for the executives. He proceeded
to ask how she had gotten that information and Kitchen
said she had no access to any information such as that in
her purchase orders and that the information had been
revealed to her. 8. This ended the interview.
Bukofsky did not testify. Apparently, his meeting with
Kitchen had been directed by higher authority. That
morning Guglielmi and Griffin met together and ar-
ranged to question Kenyon and Petrozzo to determine if
they had disclosed the information to Kitchen.
' Kenyon was called in -first. According to Gughelmi,
he asked her if she had given out any information con-
cerning the meeting and she indicated that she had not.
According to Griffin, who was also present, Guglielmi
referred to cost information and Kenyon denied giving it
out. Gughelmi also stated that a breach of financial infor-
mation was cause for termination. According to Kenyon,
she was called in to Griffin's office just after her mid
morning break around 10 a.m. Guglielmi told her that
Mattie Kitchen was shouting her mouth off about the
company trip. Mattie claimed there was information
given to her by accounts payable about the cost of the
trip. He then asked if she knew anything about it.
Kenyon replied, "Well, I might have been bitching to
Mattie about the fact that management goes on these
trips while the employees make diddlybob." Gughelmi
then told her that giving out confidential information is ,a
reason for dismissal. He asked if she understood that and
Kenyon said yes 9 She was then told she could leave."
As related by Kenyon, during the prior week, before
the weekend management trip, while on her daily visit to
the receiving department to pick up purchase orders, she
had a conversation with Kitchen dunng which the sub-
ject of the management trip came up. Kenyon had been
discussing a serious personal problem and Kitchen of-
fered her the use of a trailer she had in Pennsylvania. At
some point their talk turned to the upcoming manage-
ment trip, a subject of general knowledge among the em-
ployees, and Kenyon made the remark she readily dis-
closed to Guglielmi and Griffin. Kenyon denied that she
disclosed or ever learned the cost of the 1981 trip' or
8 Kitchen's testimony in this regard does not fully corroborate Gughel-
rm's assertion that he had been told the cost of the management meeting
had come from accounts payable Kitchen herself did not reveal the
source of whatever It was she disclosed on the plant floor on her initial
questioning by Bukofsky Thus, management's decision to immediately
question the senior accounts payable clerks could not have been based on
any accusations by any other employee
9 In spite of this reply, Kenyon credibly testified she was not previous-
ly aware of this ground for discharge
19 Petrozzo, next questioned, denied talking with Kitchen or ever
learning the cost of the management-supervisor weekend
11 Since It had not yet taken place, the cost had not yet been deter-
mined and certainly no invoice had yet been prepared
that she revealed the specific dollar cost of any prior
management trip. Kitchen, who also testified about the
conversation as a witness called by Respondent, said that
prior to the Atlantic City trip, while in her office,
Kenyon said "that they were going on a trip again and—
the executives, and she also proceeded to tell me abbut a
trip that they had taken prior to that, and the cost of the
trip."
I do not credit Kitchen's testimony that Kenyon told
her the cost of a prior year's Plan 1 meeting Kitchen
was an extremely hostile witness to the General Counsel
and revealed- as well an evident concern with the securi-
ty of her own position with Respondent which she had
held for 10 years, 9 years as receiving clerk On Re-
spondent's clifect examination of her, Kitchen character-
ized her initial conversation with Bukofsky on May 19 as
a reprimand, first explaining on cross-examination that
this meant she had been scolded and then later changing
this to having been told that if ever anything like that
would happen again she could lose her job. Thus, if
Kitchen is to be believed, her long-term career with Re-
spondent had been placed in jeopardy. She revealed , that,
when she appeared under subpoena by the General
Counsel on the hearing date which was ultimately ad-
journed, she informed then counsel , for the General
Counsel she would plead the fifth amendment, and that
later, when contacted by counsel for the General Coun-
sel who later tried the case, she had Csigi tell the coun-
sel she would not meet him. When she ultimately did
meet him she asked if Csigi had told him she would not
see him and stated that she did not need to tell him any-
thing when asked to fill him in on some of her state-
1 2
Aside from the conflict in Kitchen's testimony to
which I have already alluded, Kitchen also varied her
testimony on the matter of her meeting with manage-
ment which immediately followed the initial questioning
of Kenyon and Petrozzo.
Kitchen testified that after her talk with Bukofsky
early that day, later in the morning of May 19, she was
called to Griffin's office. When she arrived,_ Guglielmi,
Griffin, Bukosky, and Csigi were present Gughemi
asked her where she had received the information. She
said she was not there to get anybody into any problem
or cause any friction, but after being questioned again
she said there was only one person who came to her
2 Apparently, Kitchen had provided an affidavit to the General Coun-
sel during the investigation of the case, although It was-not produced
during the hearing Kitchen did acknowledge, however, that her affidavit
did not contain her testimony in which she revealed for the first time on
cross-examination that Kenyon called her on May 19, before her meeting
in Griffin's office, to ask her not to tell them that she had given her any
figure, that they were going to fire her, a claim which, in the face of
Kenyon's later denial on rebuttal, I also do not credit Kenyon's ackow-
ledgment that she talked with Kitchen by telephone at the plant from
time to time does not detract from Kenyon's credibility on this matter as
asserted by Respondent in its brief, but rather serves to buttress what I
have previously described as her open'and responsive demeanor Kitch-
en, in contrast, claimed that she had nothing to hide about this dispute,
yet she not only failed to disclose this alleged telephone contact from
Kenyon to the Board agent who took her affidavit but also to Bukofsky
and Gughelmi. and only informed Respondent's counsel on the eve of the
trial
LITTON SYSTEMS' 293
office to 'pick up paperwork She did not mention any
names, and then was excused. On cross-examination,
'Kitchen said that Guglielmi's initial question was, "I
want to know if there was a figure revealed." Kitchen
responded, "Yes; there was." Kitchen said she knew
what was being referred to after her earlier questioning
by Bukofsky. Kitchen on the witness ,stand could not
recall the figure because she tried to put it out her mind.
She' also did not think that she revealed the figure to
anyone and no one present at her interrogation revealed
a figure to her. However, she was certain that the figure
Kenyon disclosed to her concerned the Shawnee on the
Delaware trip in that Kenyon actually used those words
to described the particular trip with reference to which
she revealed the cost. That Plan 1 trip had been taken in
1979. Kitchen also agreed that when Kenyon spoke with
her the week before her discharge she basically com-
plained that while management goes on these trips the
employees did not get benefits and wages, yet she did
not disclose this complaint to Bukofsky or Guglielmi on
-May 19, even though Bukofsky had asked her what had
happened.
. After Kitchen was questioned, Kenyon was brought
back in. Present this time were Gughelmi, Griffin, and
Csigi. As related by Kenyon, Guglielmi said, "Pat,
Mattie Kitchen has been spoken to again, and she gave
your name as the person who gave her the information."
He then said, "I have no alternative but to fire you, to
let you go." Kenyon responded, "I can't believe it—it's
her word against mine. Are you going to take her word
against mine?" Guglielmi said, "You admitted to bitching
to Mattie about the trip," to which Kenyon responded
she had but she did not know any dollar amount. She
added she had not done any filing for approximately a
month and did not even think that those bills were filed
yet. At this _point Guglielmi said, "Well, Pat, I believe
this has to do with last year's trip." He said Mattie had
said that she said, If they spent that much money last
year, Just think.what they'll spend this year" Kenyon re-
plied, "Dennis had been doing all the filing and I didn't
do any. I don't know any dollar amount." She then
noted, "Well, I said I have been told that if I initiated
that petition I would be fired, or a witch-hunt would
occur." Guglielmi denied that and then confirmed her
firing. Kenyon then refused to sign a separation notice.
Three other witnesses testified about ,Kitchen's inter-
view and Kenyon's exit interview, Guglielmi, Griffin,
and Csigi, and their testimonies differ in certain respect
from Kitchen's and Kenyon's and, more significantly,
differ from each other's.
In a very significant. respect, Gughelmes version dif-
fers from Kitchen's version of her interview. Gughelmi
testified, as against Kitchen's denial, that Kitchen re-
vealed the cost of the trip. Further, according to Gug-
lielmi, Kitchen did not disclose which trip Kenyon had
been talking about, although Kitchen was sure it had to
do with the 1979 one. And Guglielmi did not question
Kitchen as to which trip it was, although he assumed it
was the 1980 Hershey trip Subsequently, during cross-
examination, Gughelmi said he did not recall whether
Kitchen or Kenyon told him the cost but one of them
Griffin agreed With Kitchen in his recollection that
during her interrogatitin - no amount had been revealed
But Griffin also testified that Kenyon at neither of her
meetings on May 19 admitted that she revealed a dollar
amount to- Kitchen." Thus, according to Griffin, no
figure came up at any of the employee meetings that
day.' Here, he differs significantly from Guglielmi.
Csigi was firm in his recollection that Kitchen did not
provide a figure and, further, that at no time was she
asked for one This corrborates Kitchen's testimony but
conflicts With Gughelmes Csigi corroborated Kitchen's
earlier testimony that Gughelmi asked her where she got
the information but added .that, in line with Kitchen's
later recital and' Guglielmi's, Kitchen was asked if cost
information was given, adding that "we never at any
time asked her the amount."
I credit' Kitchen 'arid Csigi that Kitchen was not asked
for • the cost information she claimed Kenyon had re-
vealed to her although she was pressed as to whether
Kenyon had told her the cost of a trip which was not
otherwise identified.
Guglielmi claimed that - at her first interview Kenyon
denied having had a conversation with Kitchen but that
at her second interview she admitted she was having
some personal problems the previous week and had
given the cost information to Kitchen. On cross-examina-
tion, Guglielmi added for the first time that in the second
meeting with Kenyon she told him that she had been
complaining to Kitchen that management gets to go on
these trips and "we don't and we make diddlybob." At
this point in his cross-examination,- Guglielmi started
fencing with the General Counsel, refusing at first to
answer' a direct question as to whether he had this infor-
mation regarding Kenyon's complaints before he fired
her, then rephrasing his earlier answer now characteriz-
ing Kenjton's "dibblybob" remark as complaining about
people going on a staff meeting, then swearing he did
not recall -Kenyon's statement, and finally denying she
had ever made it. I conclude that Guglielmi's testimony
is essentially unreliable, calculating, and less than forth-
right and I do not credit him. Aside from the inherent
contradictions in Gughelmi's testimony I find Incredible
his statement that, after having been informed at her first
interview that .revealing financial information was
grounds for discharge, Kenyon would later at her second
interview admit she had done so. For the reasons earlier
stated regarding Griffin's lack of candor on the witness
stand" and his bias resulting from his belief in responsi-
bility for the storm closing petition_ and the "disclosure"
of executive meeting information because both originated
in his department in the person of Kenyon, I likewise do
" Griffin's testimony on this point is somewhat unclear At first, under
cross-examination, he claimed Kenyon at her second interview admitted
that she spoke,.with Kitchen and did not remember the amount she had
told her Then Griffin responded negatively when asked if Kenyon did
not admit that she revealed a dollar amount tO Kitchen
14 At one point Griffin started to relate a meeting which took place on
May 19 in Guglielmes office among Gughelmi, Bukofsky, and himself
before any employees were called in Later, on cross-examination, Griffin
called this meeting a "mistake," stating that it never had been held and
that he had been confused His earlier testimony as io his managerial
meeting reveals no confusion whatsoever
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not credit Griffin's testimony, in so far as it may be said
to corroborate Guglielmes, in spite of its.ambiguity, that
Kenyon admitted revealing, a cost figure to Kitchen_ at
her second interview.
Cisigi testified that he had been told by .LaSchiavo and
Lepore on May 18 that information about the meeting
had been leaked and that they were ,to find out what
happened. He was later brought in with Bukofsky- for
Kitchen's interview and remained when _Kenyon was re-
called. All he could recall about Kenyon's second inter-
view was that she said she had given out the information
to Kitchen. Later, on cross-examination, he defined this
information to mean her admitting to discussing the plan
meeting with Kitchen but denying that she revealed a
specific dollar cost . amount Although Csigi , did not
recall Kenyon revealing complaints to Kitchen about
management going on trips and employee wages were
diddlybob, he did not deny that , it may have been said by
Kenyon. Csigi also recalle on cross-examination
Kenyon asking "Why are you taking Matte Kitchen's
word against mine." Csigi's testithony here, to the extent
of his recall, corrborates Kenyon, and I credit it.
Cisigi also acknowledged that, in spite of Respondent's
progressive discipline policy, Kenyon's denial, and Ken-
yon's clean record and satisfactory rating, she was imme-
diately discharged for discussing confidential information
concerning the trip.
Cisigi , also did not testify about a third meeting before
Kenyon's discharge when, according to , Gughelmi,
Kenyon had been asked to leave the room after her
second interview, Csigi was brought in for the first time
to discuss Kenyon, and then on the basis of his recom-
mendation to Csigi a decision was made to fire Kenyon
and she was recalled and told of the decision. I conclude
that there was no third meeting _with, Kenyon, and that,
as testified to by Kenyon and , implicitly acknowledged
by Csigi, Kenyon was immediately discharged on Kitch-
en's word at the conclusion of the second interview.'
Analysis
There are two issues posed in this proceeding. The
first concerns Respondent's no-solicitation rule. Was that
rule maintained and enforced within the 10(b) period/ As
a subissue, Respondent . raises whether the complaint alle-
gations regarding the rule, not, specifically alleged in
Kenyon's charge, constitute a fatal variance form the
charge
There is no question but that- Respondent had codified
in 1979 a rule prohibiting solicitations- for any purpose
without personnel . approval during working hours and
the rule had thereafter never been rescinded. It is also
clear that Respondent, when it suited its purpose, was
not timid about alerting employees to the fact that -com-
pany rules had, from time to time, been distributed to all
employees and new threes thereafter. Witness Personnel
Director Csigi's March 24, 1981 recommendation to all
supervisors discussing and justifying Airtron's snow clos-
ing policy. Like the snow closing policy, the no-solicita-
tion rule had been prepared and distributed at a time, in
1979, 'when the Company was undergoing a review and
update of its personnel policies, and,manuals
Since the rules as written "is reasonably susceptible to
an interpretation by employees that they are prohibited
from engaging in protected activity during periods of the
workday when they are properly not engaged ,in per-
forming their work tasks (e.g., meal and , break periods)"
- "tends unlawfully , to interfere with ; and restrict em-
ployees in the, _exercise of their Section 7 organizational
rights "s In T. R. W. , Bearings, supra, the Board obliterat-
ed the distinction .between rules banning - solicitation
during "working time" and "working hours," finding the
latter as ambiguous as the former." Absent some clarifi-
cation to employees that the , restnction does not apply to
organizational activity' conducted during break periods
and mealtimes the rule must be found to-be presumptive-
ly invalid. Respondent having failed to clarify its pre-
sumptively invalid rule, its maintenance is found to be
unlawful. , .
Respondent argues that since its promulgation the rule
has not been enforced or observed, _and there is no basis
to conclude, as urged by the General Cotinsel, that Re-
spondent violated the law by enforcing it. Yet, by its
own considerable reaction to Kenyon's storm policy peti-
tion, Respondent has revealed an intention to prevent the
solicitations of other employees to protest company poli-
cies dealing with terms and conditions of employment.
Such an effort bespeaks an enforcement of the rule to
prohibit' protected concerted activity whether or not' the
rule itself is specifically invoked in support of Respond-
ent's efforts. -
There can be no other interpretation of Griffin's in-
junction to Kenyon to refrain from such activity in the
futtire after voicing the chief executive officer's displeas-
ure at her- "extieme 'action." Even Griffin's initial ques-
tioning of 'Kenyon's - motive when she first disclosed
What she had done on the' occasion of her job review
tends to show the employee -that such conduct is ques-
tionable at best When Griffin's later injunction is cou-
pled with the pattern of identical individual employee in-
terrogations of the petition signatories devoted solely to
the subject of the petition as ' described, it is virtually im-
possible - to avoid the conclusion that it enforced the nol
solicitation rule in uch a manner as to resolve the ambi-
guity inherent in the rule and make clear that its intent
was to prbhibit 'all proteeted concerted - solicitations
whether on-the employee's own time or actual worktime.
Respondent'S attempt to distinguish Csigi's memorandum
and Supervisor Griffin's questioning wherein they sought
to emphasize the proper chain of command, as against an
outright prohibition, is elevating form over substance.'
The clear import of their remarks is that in 'the future the
way to complain about working condition is to' see
your supervisor, not join with other employees to peti-
tion for relief. In spite of the apparent'subtlety of this a'p-
'proach, the Employer's basic aim is not lost' on the em-
ployee recipient. 'The instruction to all employees to
direct future werk concerns and remarks to their super-, .
15 T R W Bearings, 257 NLRB 442, 443 (1981)
16 Even under the more limited, and now rejected, principle enunci-
nted 'in Essex International, 211 NLRB 749 (1974), since Respondent's
rule used the phrase 'working hours" It:would have been found unlaw-
ful
LITTON SYSTEMS 295
visor and not to fellow employees is an -independent co-
ercive limitation on employee rights," even apart from
its relationship to Respondent's outstanding no-solicita-
tion- rule. 19
Contrary to Respondent's claim at page 11 of its brief,
the no-solicitation rule may thus be viewed as part and
parcel' of the unlawful restrictions it has placed on the
exercise by employees of protected rights. It is also clear,
contrary to Respondent's urging on the -same page of its
brief, that the relationship between Kenyon's charge and
the complaint is more than sufficient to warrant the con-
clusion that the Region did not act on its own initiative
in alleging the rule as violative of the Act, both as main-
tained and enforced-' 9 The nexus between Kenyon's tes-
timony regarding her .own interrogations and the Re-
spondent's expressed , concern with the employees' exer-
cise of Section 7 rights provides direct evidence of the
relationship between the charge and the no-solicitation
rule.
I come now to the issue as to whether Kenyon's dis-
charge was motivated by her engagement in protected
concerted activities I have little difficulty in concluding
that it was
Kenyon's key role in drafting and spearheading the
circulation, signing, and submission to management of
the-protest petition is undisputed On two separate occa-
sions she identified herself to management representatives
as the originator of the petition, and she signed it before
all others. In turning it in, Kenyon and Jacobs requested
a direct meeting with the company president to discuss
it.
The petition caused such a stir that Respondent took
the unprecedented action of convening special sessions
between its personnel director and supervision to plan a
formal response and had its personnel director prepare a
detailed memorandum to counter the impact of the em-
ployees' activity not only with respect to the policy in
issue but, more importantly, with respect to the concert-
ed procedure and manner the employees' utilized to raise
their complaint. Respondent's fear was twofold First,
the change in the storm closing policy sought by the sig-
natories could be costly. The employees sought pay for
the remainder of any day in which they were sent home.
Barring that, the employees sought rentention of their
accrued sick pay. Modification of the storm closing
" R J Liberia Inc , 235 NLRB 1450, 1453 (1978), citing Jeannette
Corp, 217 NLRB 653, 656 (1975), enfd 532 F 2d 916 (3d Or 1976)
18 The consistent evidence of employer permissiveness toward benign
solicitations, even those involving working conditions with a nominal em-
ployer cost such as the soda machine petition, rather than supporting Re-
spondent's claim of nonenforcement, Just because of the chspanty of treat-
ment when a matter of substantial employer outlay is involved, services
to highlight Respondent's coercive and intimidating reaction to the em-
ployee exercise of Sec 7 rights
The written rule may thus be said to have been construed and Inter-
preted by Respondent as limited to prohibitions against employee solicita-
tions constituting the exercise of protected concerted activity of more
than a de mimmus nature On this ground alone Respondent's citation of
Detroit Plastic Molding Co, 209 NLRB 763 (1974), wherein the Board dis-
missed a complaint alleging the unlawful maintenance of invalid no-solici-
tation rules because their maintenance was so minimal and Isolated,
misses the mark The instant rule was maintained and enforced in its
narrow and unlawful aspects
18 See NLRB v DHJ Indutries, 494 F 2d 588 (5th Cif 1974) See also
NLRB v Pant Milling Go, 360 US 301 (1959)
policy in either respect could involve outlays of thou-
sand of dollars. Second, and what I consider to be the
heart of the matter, group action such as manifested with
regard to the petition, unless nipped in the bud, could en-
courage employees to continue their concerted dealing
and even expand it to include consideration of retaining
union representation and engaging in collective bargain-
ing in the long run.
The highest authority in Respondent's hierarchy made
known his extreme displeasure with Kenyon's action and
in the same conversation in which Kenyon was made
aware of his feelings about the matter she was told to
cease such activity in the' future Significantly, Kenyon
emphatically stated her refusal to comply. The conse-
quence was that Respondent was faced with the possibil-
ity of future solicitations and concerted conduct spear-
headed by an employee who had demonstrated her inde-
pendence from employer domination and intimidation
The incident between Kenyon and Kitchen which
arose not more than a month later provided a convenient
and ostensibly nondiscriminatory basis for Respondent to
rid itself of Kenyon's irritating and potentially costly
presence. I am convinced that Kenyon's alleged disclo-
'sure of confidential financial information was a pretext
shielding Respondent's true discriminatorily motive.
There a number of facets of the incident which lend
weight to this conclusion. The first is that, while Re-
spondent appears to rely on a breach of an alleged well-
recognized ethical principle, it thought so little of the
principle that it failed to include it among the numerous
disciplinary rules it created and distributed on the 1979
personnel policy review even though it included a rule
prohibiting financial disclosure to achieve ends admitted-
ly not related to Kenyon's alleged activity. The offhand
manner' in which it sought to alert employees to the pro-
hibition of disclosure of financial information on their
hire also says a great deal about the lack of seriousness
with which Respondent dealt with the matter before it
ever sought to invoke the rule in Kenyon's case. It is
also apparent that Respondent, in effect, created a new
disciplinary rule during Kenyon's initial interview when
Gughelmi alerted her to it and stated it was grounds for
discharge In' this connection, Respondent made what
amounted to an on-the-spot decision that Kenyon's al-
leged conduct was not going to be subject to its other-
wise generally applicable policy of progressive disci-
pline.2°
The manner in which Respondent investigated the in-
cident and concluded its investigation also demonstrates
its patent falsity. The employee, Kitchen, who had circu-
lated the information about the Plan 1 meeting and on
whose word management relied in firing Kenyon was
not even asked the figure she had been given so as to
provide some concrete factual underpinning for the al-
leged disclosure. Also, an ambiguity was allowed to
remain as to which management trip costs had been dis-
closed, Kitchen believing the trip under discussion was
the 1979 one and Guglielmi assuming the disclosure re-
20 While, admittedly, that policy was not applicable to every offense,
not even Airtron's 1979 statement of disciplinary policy by its terms ex-
cluded any infraction from its coverage
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated to the trip in 1980. Furthermore, an employee who,
in management's characterization, had been "shouting -
her mouth off" was credited in the absence of any other
proof of disclosure of specific figures against an employ-
ee who readily admitted her griping, but who consistent-
ly denied the disclosure of actual costs, and the facts
show others had access to the information.2'
The conflicts among Respondent's management per-
sonnel further reveal the,effort that was made to justify
Kenyon's release Among • Respondent's executives, Vice
President Guglielmi stands alone in insisting that Kenyon
revealed a cost figure and admitted having disclosed it to
Kitchen, as against the denials and ambiguous responses
of Cost Manager Griffin and the consistent denials of
Personnel Manager Csigi. Guglielmi's discredited asser-
tion that there was an interim managerial conference to
determine Kenyon's fate also supports this conclusion. In
the face of Kenyon's denials, but after disclosing her
continued dissatisfaction with Respondent's benefits for
employees, she was summarily released.
It is also apparent that the employees generally .were
aware that a certain number of executives and their
spouses spent a weekned away at the Company's expense
once a year. Even though the precise overall cost would
be unavailable to them, it would hardly seem to be
beyond the estimating power of any of them to conclude
that Respondent's funding of the weekend reached five'
figures. 22, Thus, Respondent's stated concern with, fig-
ures seems to have been picayune and over trifling and,
therefore, its response to the matter was wholly out of
proportion unless some other motive was at work.
I conclude that Respondent's real concern when it
learned from Kenyon at her first interview, and,. I be-
lieve, from Kitchen as well, that Kenyon had griped and
bitched about employee treatment to Kitchen was that
the same ,employee who had started the petition was not
getting involved, at least to the extent of making known
her feelings to a fellow employee, in .a matter of dissatis-
faction with employee benefits generally, not limited to
loss of pay on storm closings, in contrast to the benefits
management and higher supervision enjoyed. That ex-
pression of concern could reasonably lead to further
group conduct of the nature represented by the anti-
storm closing policy petition. This motive is exhibited
most clearly in Bukofsky's statement to Kitchen on May
19, when , he told her the company president was very
21 On Respondent's own terms, the extreme disparity in tteatment ac-
corded the two employees—Kitchen receiving not even a reprimand for
passing along confidential financial information and Kenyon being sum-
marily fired for the same offense—show that other factors contributed to
the making of Respondent's judgment, surely unrelated to KenYon's satis-
factory work record It is not enough to respond, as Guilielmi did, that
Kenyon had access and originated the deed It was not Kenyon who cir-
culated the information on the plant floor Some fault surely had to be
borne by the receiver and circulator of the prohibited material if Re-
spondent was to act in an evenhanded manner Kitchen's a:ppreciation fen'
her good fortune was readily apparent on thi reciird
22 Respondent's reliance on employee Petrozzo's testimony' at p 18 of
its bnef that, in a conversation with Kenyon just before the May 1981
Atlantic City executive weekend, a statement was made that "you spend
all this money on weekends, but when you want a chair or something
decent in the office you have to really fight to get it" as supporting Ken-
yon's disclosure of dollar cost is not convincing Just because of employee
ability to infer the general cost
annoyed and it was really none of her business what
Lepore did for the executives Kenyon's interests were
getting too close to the bone now She had previously
revealed her unreliability in refusing to refrain from in-
volvement in future employee work-related solicitations
and her present conduct reaffirmed this attitude.
Yet, Respondent did not rely on Kenyon's griping as
grounds for her discharge, 23 but rather it took its stand
on the alleged Improper disclosure. In the foregoing dis-
cussion, I have concluded that Respondent seized on the
alleged confidential disclosure during the Kenyon-Kitch-
en interchange as the best way it then had available to it
to remove Kenyon from its work force.
Assuming, arguendo, that Respondent had a reasona-
ble basis for believing Kitchen that Costs were disclosed
and that such disclosure provided lawful grounds for dis-
charge, Respondent's good-faith belief does not shield it
from the consequences of its error in attributing 'such
misconduct to Kenyon. 24 Having found that Kenyon did
not make the alleged disclosure, Respondent cannot
defend its action on the basis of its good-faith belief that
she did.
Furthermore, assuming, arguendo, that Kenyon had
revealed the actual cost of a prior executive weekend
meeting, a conclusion contrary to the findings of fact
contained herein, that conduct would also have been
protected
• It should first be made clear that this is not a case of
employee 'disloyalty. Kenyon did not release company
information to third parties to the disadvantage of Re-
spondent's business. 25 The specific company rule prohib-
iting such disclosure was not invoked and is not applica-
ble here.
Respondent argues that the cost of the Plan 1 meeting
is confidential because, in the words of Vice President
Guglielmi, "the cost of all our expenditures that We
make, the cost of anyone's expense report, the cost of
anyone's salary, is confidential information." Gughelmi
then asserted that, had Kenyon revealed her own or an-
other's salary to another person, that would be revealing
financial information and cause . for immediate dis-
cliarge. 26 Yet, as pointed out earlier, Respondent had no
formal rule prohibiting any such disclosures. There was
nothing about the location, appearance, or accessibility
Of the files in which the information was stored which
would reveal that they had a special status. A variety of
personnel had Immediate access and others, with a
: simple request, had the filing cabinets readily available to
them. I also 'conclude that the nature of the information
23 Consequently, there is no need to examine whether Kenyon's con-
versation with Kitchen, standing alone, rises to the level of protected
concerted activity, a matter both counsel have addressed in their respec-
tive briefs
24 NLRB v Burnup & Sims, 379 U S 21 (1964)
25 Vitronic Inc , 182 NLRB 1067 (1970), see generally NLRB v Electri-
cal Workers IBEW Local 1229, 346 U S 464 (1953). Also see Farlow
Rubber Supply, 193 NLRB 570 (1971)
26 See W R Grace Co, 240 NLRB 813 (1979), where an employer
rule which prohibited employees from discussing wage rates among
themselves was held to violate Sec 8(a)(1)
Kenyon's disclosure of an executive benefit was directly related to em-
ployees' conditions of employment See Lutheran Social Service of Minne-
sota, 250 NLRB 35 (1980)
LITTON SYSTEMS 297
itself was not such as to provide a basis for reasonable
employee belief in its privacy. 27 Thus, and for all the
foregoing reasons, I am prepared to distinguish Clinton
Corn , Processing Co., 253 NLRB 622 (1980), relied on by
Respondent, in which the Board affirmed, without opin-
ion, an administrative law judge's decision in which he
concluded that employee disclosure of the company's
confidential wage structure to a third-party labor organi-
zation was not protected.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in an activity affecting commerce within the mean- -
ing of Section 2(2), (6), and (7) of the Act.
2. By maintaining, distributing, and enforcing its Com-
pany Rule v appearing under the heading "DISCIPLI-
NARY ACTION—all employees 6/25/79" in its June
29, 1979 "Update of Airtron Policies #3" to all employ-
ees and by advising its employees that they should re-
frain from circulating petitions of any kind, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act
3 By discharging Patricia Kenyon because she en-
gaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid and protection, Re-
spondent has engaged in, and is engaging in, an unfair
labor practice within the meaning of Section 8(a)(1) of
the Act.
4. The unfair labor practices described above are
unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
In addition to the usual cease-and-desist order and
notice posting, my recommended Order will require Re-
spondent to offer Patricia Kenyon unconditional rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed, and to make her whole for any loss of
earnings or other benefits she may have suffered by
reason of her unlawful discharge, computed in accord-
ance with the formula stated in E W Woolworth Co., 90
NLRB 289 (1950), with interest computed in the manner
set forth in Florida Steel Corp, 231 NLRB 651 (1977);
see generally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
22 Gray Flooring, 212 NLRB 668 (1974) Kenyon's understanding that
invoices for executive trips were often forwarded directly to personnel or
the company president's office provides an insufficient basis for a con-
trary conclusion In any event, even if this procedure evidenced a certain
managerial sensitivity toward the information, sensitivity is not the equiv-
alent of confidentiality, particularly where employee knowledge of the
approximate cost of the trip would easily be Inferred On the record
before me, employer sensitivity is much more akin to embarrassment or
discomfort that employees would be able to contrast, as did Kenyon,
their more meagre benefits against the perquisites of management
28 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
ORDER
The 'Respondent, Airtron, Division of Litton Systems,
Inc., Morris Plains, New Jersey, its officers, agents,
sucessors, and assigns, shall
1 Cease and desist from
(a) Discharging employees, or refusing to reinstate
them, in consequence of their participation in concerted
activity for the purpose of collective bargaining or other
mutual aid and protection.
(b) Distributing, maintaining in effect, and enforcing
Company Rule v appearing under the heading "DISCI-
PLINARY ACTION—all employees 6/25/79" in its
June 29, , 1979 "Update of Airtron Policies #3" to all em-
ployees, and advising its employees that they should re-
frain from circulating petitions of any kind.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Offer Patricia Kenyon immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges previously en-
joyed, and make her whole for any loss of earnings or
other benefits she may have suffered by reason of her
unlawful discharge in the manner set forth in the section
of this decision entitled "The Remedy."
(b) Withdraw and abolish its Company Rule v set
forth under the heading "DISCIPLINARY ACTION—
all employees 6/25/79" in its June 29, 1979 "Update of
Airtron Policies #3" to all employees, and notify its em-
ployees of said withdrawal and abolition in writing.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Morris Plains, New Jersey offices and
facilities copies of the attached notice marked "Appen-
dix." 28 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses
20 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, or fail or refuse to reinstate,
any employee in consequence of his or her participation
in concerted activity for the purpose of collective bar-
gaining or other mutual aid and protection.
WE WILL NOT distribute, maintain, and enforce Com-
pany Rule v set forth under the heading "DISCIPLI-
NARY ACTION—all employees 6/25/79" in its June
29, 1979 'Update of Airtron Policies '#3" to all employ-
ees, and advise our employees that they should refrain
from circulating petitions of any kind.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE HEREBY NOTIFY YOU that we have withdrawn and
abolished Comany Rule v described above
WE WILL offer Patricia Kenyon immediate and full re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously engaged, and WE WILL make her whole for any
loss of earnings or Other 'benefits she may have suffered
by reason of her unlawful discharge, with interest there-
on.
AIRTRON, DIVISION OF LITTON SYS-
TEMS, INC.