Essendant Co.

National Labor Relations Board - Administrative Judge Opinions

Oct 18, 2016

05-CA-170845 (N.L.R.B. Oct. 18, 2016)

JD–101–16
Hanover, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ESSENDANT CO.
Case No. 5–CA–170845
and
TEAMSTERS LOCAL UNION NO. 570
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Andrew Andela, Esq. for the General Counsel.
Joseph E. Tilson, Esq., (Cozen O’Connor), Chicago, Illinois, for the Respondent.
James R. Rosenberg, Esq., (Abato, Rubenstein and Abato, P. A.),
Baltimore, Maryland, for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was submitted to me on a
stipulated record. Teamsters Local 570 filed the initial charge in this matter on February 29,
2016. The General Counsel issued a complaint on June 30, 2016. The stipulation was finalized
on August 21, 2016 and the General Counsel and Respondent filed briefs on October 3, 2016.
Respondent has offices in Hanover and Elkton, Maryland. It provides wholesale office
supplies. In the 12-month period ending May 31, 2016, Respondent sold and shipped goods
from its Maryland facilities directly to points outside of Maryland valued in excess of $50,000.
Respondent admits that it an employer engaged in commerce pursuant to Sections 2(2), (6) and
(7) of the Act. It also admits that the Charging Party Union, Teamsters Local 570 is a labor
organization within the meaning of Section 2(5) of the Act.
On January 12, 2016, Respondent issued an employee handbook to employees at all its
U.S. facilities, including employees in a bargaining unit represented by the Charging Party
Union. The handbook contains the following rule which the General Counsel alleges violates
Section 8(a)(1) of the Act.
JD–101–16
2
The Company believes that associates should not be disturbed or disrupted in the
performance of their job duties. For this reason, solicitation of any kind by one associate
of another associate is prohibited while either associate is on his or her working time. In
addition, distribution or posting of advertising material, handbills or printed or written
literature of any kind is prohibited at any time in work areas. (emphasis added).5
Analysis
Applicable Legal Principles
10
The Board has long recognized the principle that working time is for work and has
permitted employers to adopt and enforce rules prohibiting solicitation during working time,
absent evidence that the rule was adopted for a discriminatory purpose, Peyton Packing, 49
NLRB 828, 843 (1943). However, an employer cannot generally prohibit solicitation by
employees in non-work areas during non-working time.15
In Stoddard-Quirk Mfg. Co. 138 NLRB 615 (1962) the Board drew a distinction between
work rules prohibiting oral solicitation and those prohibiting distribution of written materials.
The Board noted that written material, because of the potential for litter, raises a hazard to
production regardless of whether it occurs on working time or non-working time. Thus, it held 20
that an employer could prohibit the distribution of written material in work areas during non-
working time.
On the other hand, the Board has also held that an employer violates Section 8(a)(1)
when it maintains a work rule that reasonably tends to chill employees in the exercise of their 25
Section 7 rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). A rule is unlawful if it
explicitly restricts activities protected by Section 7. If this is not true, a violation is established
by a showing that 1) employees would reasonably construe the language to prohibit Section 7
activity; 2) that the rule was promulgated in response to protected activity or 3) that the rule has
been applied to restrict the exercise of Section 7 rights, Lutheran Heritage Village-Livonia, 343 30
NLRB 646, 647 (2004). The Board stated that a rule would not violate the Act merely because it
could be read to prohibit protected activity.
In Purple Communications, Inc., 361 NLRB No. 126 (2014), the Board held that there is
a presumption that employees with access to their employer’s email system are entitled to use the 35
system to engage in protected activity via that email system while on non-working time.1
The General Counsel contends that Respondent’s handbook rule violates Section 8(a)(1)
solely because employees would reasonably construe it to prohibit employees from distributing
electronic material during non-work time to computers in work areas. More specifically, the 40
General Counsel in this case argues that by including the phrase “of any kind,” Respondent’s
rule violates the Act. At page 1 of his brief, the General Counsel states:
By employing the phrase “of any kind,” Respondent has left employees no choice but to
believe that they are prohibited from engaging in electronic posting and distribution.45

1 The stipulation in this case is silent as to whether Essendant employees have access to the
company’s email system.
JD–101–16
3
Again at page 8, the General Counsel states:
Here Respondent’s inclusion of the phrase “of any kind” created a rule so vast in scope
that employees in today’s workplace should not be expected to conclude it prohibits only 5
the narrow definition that the Board has traditionally ascribed to “distribution of
literature,” i.e., the physical distribution of paper.
However, at page 10 of his brief, the General Counsel appears to vacillate as to whether
Respondent’s rule would violate the Act even without the words “of any kind.”10
In light of the technological changes recognized throughout Purple Communications, it is
not plausible to assume that employees today consider “printed or written” and
“electronic” to be mutually exclusive. How for instance, does one send a text message
without first “writing” it?15
…who could expect employees to reasonably conclude that the word “posting” involves
only thumbtacks or a stapler, and not, for example, complaining about wages in a
Facebook post? Employees confronted with determining what Respondent means by “of
any kind” are likely to decide that it is safest just to avoid finding out.20
I conclude that the phrase “of any kind” refers to the kind of literature that may be posted,
i.e., charitable, political, commercial, rather than to method of posting. Moreover, the modifier
“of any kind” cannot be reasonably read in any other way. Finally, the phrase “of any kind”
makes no difference as to whether Respondent’s rule violates the Act. Below is the rule with this 25
phrase excised:
The Company believes that associates should not be disturbed or disrupted in the
performance of their job duties. For this reason, solicitation of any kind by one associate
of another associate is prohibited while either associate is on his or her working time. In 30
addition, distribution or posting of advertising material, handbills or printed or written
literature is prohibited at any time in work areas.
One could just as easily argue that without the phrase “of any kind,” the prohibition of
“distribution or posting” written literature is equally violative if it reasonably would be read to 35
prohibit email messages sent on non-work time to a computer located in a work area. I find that
Respondent’s rule cannot be reasonably read to prohibit email messaging on nonworking time to
a computer in a work area in either case.
The complaint is dismissed.40
Dated, Washington, D.C., October 18, 2016
45
____________________
Arthur J. Amchan
Administrative Law Judge
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