Texas Instruments Inc., 253 (1980)

• Docket Number: 01-CA-13191

TEXAS INSTRUMENTS INCORPORATED

Texas Instruments Incorporated and International Union of Electrical, Radio and Machine Workers,

AFL-CIO. Case 1-CA-13191

January 15, 1980 SUPPLEMENTAL DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

PENELLO AND TRUESDALE

On May 16, 1978, the Board issued its Decision and Order in the above-entitled proceeding.' Therein, the Board, in agreement with the Administrative Law Judge, found that Respondent (also referred to herein as TI) had engaged in certain unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging six employees who, while engaged in organizational leafleting, knowingly distributed material which contained classified wage survey information, including Respondent's competitors' wage rates, in violation of one of Respondent's security rules.' In so finding, the Administrative Law Judge refused to equate the above-released wage data with any military or commercial secrets whose disclosure could injure or destroy Respondent's business. Further, the Administrative Law Judge found that, by so closely connecting its own wage rates to the wage survey's results, Respondent had in effect incorporated the other companies' wage scales into its own and therefore Respondent could place no 'greater restriction on the discussion or disclosure of other employers' wages than it . . . [could] place on the discussion of its own wages.' Finally, the Administrative Law Judge rejected Respondent's assertion that the employees were genuinely discharged for violation ofTI's security rule and found the terminations to be motivated by the intent to discourage the employees' protected concerted activity. The Board also adopted the Administrative Law Judge's finding that another of Respondent's rules, prohibiting employees from discussing its own wage schedules with nonemployees, substantially interfered with the employees' organizational efforts and therefore violated Section 8(a)(1) of the Act.

' 236 NLRB 68.

: The pertinent rule appears in Respondent's handbook in the following form:

The following major infractions may be considered grounds for termination: ... Disclosure of classified material to unauthorized persons.

Texas Instruments Incorporated v. N.L.R.B.. 599 F.2d 1067 (Ist Cir.

1979).

' In fn. 3 of its decision, the court noted that the Board adopted the Administrative Law Judge's Decision with no elaboration on what the court viewed as the deficiencies in his Decision.

' In its decision the court suggests that, if alternative means of acquiring the 247 NLRB No. 37

Thereafter, Respondent filed a petition for review of the Board's May 16, 1978, Order before the United States Court of Appeals for the First Circuit, and the Board filed a cross-petition seeking enforcement of its Order. On June 4, 1979, the court issued its opinion' enforcing the Board's Order with regard to its finding that Respondent violated Section 8(a)(1) of the Act by prohibiting its employees from discussing its own wage scales. The court, however, set aside the Board's Order as to the 8(a)(3) and (1) violations based on the discharges, and remanded the case to the Board for further proceedings in accordance with its opinion.

The court noted that the Administrative Law Judge failed to cite any case authority in support of his decision on the merits of the discharge issue and to include an 'analytical framework' in determining that the discharges were violative of the Act.' Further, the court agreed with Board precedent stating that, if the rule requiring a discharge for dissemination of classified material such as the wage survey data herein is held to be invalid, a termination based on such a rule would violate Section 8(a)(3) of the Act. In the court's view, however, the issue of the validity of this rule had never been determined. Such a determination, involving a balancing analysis between the employees' Section 7 rights and the business justification for the Employer's rule which adversely affects those rights was seen by the court as being the responsibility of the Board and being mandated by the situation herein.

The court directed, without predicting the outcome, that 'the Board must focus on the issues of the validity of the rule invoked by the company to justify the discharges, just as it did in Jeannette Corp. v.

N.L.R.B., 532 F.2d 916 (3d Cir. 1976).'' (599 F.2d at 1073.) Moreover, the court stated that only if the above evaluation results in a finding that the rule is valid would it be necessary for an assessment of the motive behind the discharges to be undertaken, according to the principles set out in N.L.R.B. v.

Eastern Smelting and Refining Corp., 598 F.2d 666 (Ist Cir. 1979).

Thereafter, the Board accepted the remand and by letter dated July 25, 1979, invited the parties to submit statements of position with respect to the issue raised by the court's remand. The Charging Party, the survey data were available, the Employer would not have to permit distribution of the classified information. However, the record does not establish that other means were 'readily available' to the employees here to acquire the same or similar data and, indeed, Respondent's position here is based largely on the premise that such information was intended by it and the participating companies to remain confidential. Moreover, if the information contained in the wage survey is accessible, either from the participating companies or from the unions which have contracts with some of these companies, Respondent's claim that the data is confidential and cannot be distributed is a weak one. Respondent's business justification of confidentiality will be considered in our discussion, infra.

253

DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel, and Respondent all filed such statements.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Respondent Texas Instruments Incorporated is engaged in the manufacture and sale of electronic products, in part defense-related, at its Attleboro,

Massachusetts, plant of 5,000 employees, the only facility of its many locations which is involved in the instant case. None of the plant's employees is represented by a labor organization, but a group of approximately 10 employees, known as the Union Organizing Committee, has engaged in organizational activities in the past 3 years to induce employees to affiliate with the International Union of Electrical,

Radio and Machine Workers (IUE). While TI is strongly opposed to unionization of its plants, prior to this case it had not been found to have committed any unfair labor practices; further, the above-mentioned well-known union advocates have all received good ratings on performance reviews, with at least one being given a promotion.

Because of the nature of its business, TI maintains an internal security system to protect its proprietary information, classifying its data as either 'TI Strictly Private' or 'TI Internal Data.' The first category contains the more confidential documents whose release within the Company is on a 'need to know' basis limited to those workers who require the information in their jobs, and whose deliberate dissemination results in immediate discharge.6

During the approximately 20 years that this security system has been in effect, Respondent has consistently applied this sanction in the five cases where it had been proven that such classified information was revealed. However, none of these instances involved the disclosure of wage information. Further, the record also...