International Business Machines Corp.

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 215 (N.L.R.B. 2001)

INTERNATIONAL BUSINESS MACHINES CORP. 215
International Business Machines Corporation and
Communications Workers of America, Local
1120, AFL–CIO. Case 3–CA–22062
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On May 12, 2000, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and Charging Party filed cross-
exceptions and supporting briefs. All parties filed an-
swering briefs, with the Respondent and Charging Party
also filing reply briefs.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Business Ma-
chines Corporation, Poughkeepsie and East Fishkill, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

Robert Ellison, Esq., for the General Counsel.
Michael A. Putetti Esq., Scott B. Gilly Esq., and Greg Meyers
Esq., for the Respondent.
M. Christina Norum, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Poughkeepsie, New York, on March 7
to 9, 2000. The charge and amended charges were filed by the
Union on July 30, August 27, and September 29, 1999. A
complaint and notice of hearing was issued on December 22,
1999, and alleged, in substance, as follows:
That on or about July 23 and September 14, 1999, the Re-
spondent, by certain supervisory personnel, threatened employ-
ees with disciplinary action if they displayed prounion signs in
the Company’s parking lots. In this regard, the General Coun-
sel, at the hearing, argued that inasmuch as the Company has a
policy prohibiting certain signs, has notified maintenance of
this policy and has not revoked or waived the policy, the Re-
spondent’s enforcement of the policy, even in the absence of
explicitly threatened disciplinary action, would constitute an
illegal rule prohibiting union displays by employees in non-
working areas.

1 We find no merit in the Charging Party’s argument in cross-
exceptions that the circumstances of this case warrant companywide
posting of the remedial notice.
That on or about July 23, 1999, the Respondent, at its Fish-
kill facility, interfered with the holding of an employee union
meeting by announcing over the PA system that the en-
trance/exit near where the meeting was to be held, would be
closed. It is the General Counsel’s theory that by making this
announcement, the Employer encouraged its employees to util-
ize other exits at the end of the workday and therefore bypass
the location where the union meeting was to take place.
That on or about July 26, 1999, the Respondent, at its
Poughkeepsie facility placed security personnel in the vicinity
of the area in a parking lot where a union meeting was to be
held and by so doing, and by checking IBM badges, thereby
engaged in surveillance and intimidated employees from
attending the meeting.
The Respondent takes the position that the signs were very
large and contrary to its policy prohibiting employees from
displaying any large signs, irrespective of message. As to the
events of July 23, 1999, the Respondent denies that it an-
nounced that it was closing the exit near where the union activ-
ity occurred and did not, in any way, attempt to interfere with
employees attending that meeting. As to July 26, 1999, the
Respondent acknowledges that it stationed security personnel at
the entry points to the parking lot. It asserts that it did so, not in
order to surveil the union meeting or to intimidate employees
from attending, but in order to prevent nonemployees from
trespassing onto its property.
On the entire record in this case,1 including my observation
of the demeanor of the witnesses and after reviewing the briefs
filed, I hereby make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is agreed that the Union,
Communication Workers of America, Local 1120, AFL–CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Campaign Commences
In the spring of 1999, IBM notified employees that it was
going to make certain changes in its pension benefit program.
(The nature of these changes is not relevant to this case.) Nev-
ertheless, these proposals upset some of its employees and this
generated a substantial amount of employee discussion. That
discussion took place not only in company corridors and cafete-
rias but in chat rooms on the Internet.
Peter Plavchan, an employee, began to post notices in a Ya-
hoo chat room called “IBM Union” and suggested, in that fo-
1 Before the close of the hearing, I made arrangements for photo-
graphs to be taken and transmitted to me. Additionally, after the close
of the hearing, I invited the parties to present five photographs each of
the East Fishkill and Poughkeepsie sites. All of these photographs have
been received by me and are made part of the record.
333 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216
rum, that the employees start thinking about the possibility of
union representation. It appears that Plavchan posted a notice
announcing that there would be a meeting held on July 12 at the
Best Western Hotel in Poughkeepsie.
On July 12, 1999, there was a meeting that was attended by a
large number of employees.2 Also in attendance were represen-
tatives of two unions (CWA and IUE), who spoke about their
respective organizations. Plavchan conducted the meeting and
introduced the union representatives to the employees. This
meeting was reported in the July 13 edition of the Poughkeep-
sie Journal which also contained a picture of Plavchan’s van
having a hand painted bed sheet stating, “IBM Union Yes.”
Another similar but somewhat smaller meeting was held at
the Best Western about a week later.
Subsequently, Plavchan and other employees who were ac-
tive supporters of unionization, selected the CWA as their vehi-
cle for unionization. They thereupon set up meetings to be held
in IBM parking lots as the next step. Plavchan and others or-
ganized and took steps to notify employees that there would be
a meeting held at the East Fishkill site on July 23, 1999, and at
the Poughkeepsie site on July 26, 1999.
B. East Fishkill
Plavchan announced that there would be parking lot meet-
ings held at East Fishkill and Poughkeepsie, respectively on
July 23 and 26, 1999. This announcement was made by way of
the Yahoo chat room and by the distribution of about 500 flyers
to employees in the company cafeterias. Additionally, mention
of the meetings was made in the local newspapers. The flyers
announced that the meetings would be for the purpose of sign-
ing up with the CWA. At East Fishkill, it was announced that
the meeting would take place at 5 p.m. on July 23, 1999, at the
parking lot outside of building 320.
The announcements indicated that the meetings would be
held on company property at times when shift changes were
taking place, That is, on nonworking time at nonworking loca-
tions. There was, however, nothing in any of the announce-
ments to indicate that these meetings were to be attended only
by employees and not by nonemployee union representatives.
As such, Susan Neiss, the East Fishkill site security manager,
credibly testified that upon hearing of the planned July 23
meeting, she became concerned that there was a possibility that
nonemployees would come onto IBM property. (In fact, as it
turned out, some nonemployees did enter the property on July
23.)
The East Fishkill site is a 1000-acre property on which there
are 65 buildings, housing approximately 8000 employees. On
the east side there is a research park containing a number of
buildings, including building 320. The west side is dedicated
exclusively to IBM research and development.
The perimeter of the site is enclosed by a low fence and there
are no-trespassing signs posted. There are parking areas adja-
cent to the buildings and there are seven roadway gates to the
property. Of the seven gates, two are considered main gates,

2 The record indicates that there is some ambiguity as to the number
of employees who attended the meeting. But whether it was 1000 as
testified to by Plavchan or 400 as indicated in the newspaper article,
this is essentially irrelevant to this case.
these being gates 1 and 7. These have arms that can swing up
and down through the use of IBM badges. (If the arms are
down, a badge is needed to gain vehicle entrance but is not
needed to exit as the arm automatically swings open to allow
cars to leave the property.) 3 The other gates, when closed, are
locked and entry or exit from them is inaccessible by ordinary
means. (Other than climbing over a fence.) Normally, during
the hours of 6 a.m. to 8 p.m., gates 1, 5, 6, and 7 are kept open
to accommodate traffic.
The East Fishkill site has an internal network of roadways
which are patrolled by security personnel. Unauthorized people
are not allowed to enter the site and if, for example, a bicyclist
is found riding around, the security people will tell the person
that this is private property and that he or she has to leave.
On July 23, 1999, Supervisor Joseph Bognaski, telephoned
Plavchan on two occasions and asked if he was going to put up
his sign on his van at the parking lot meeting. He told Plavchan
that this would violate the Company’s solicitation policy.
Plavchan took the position that he had the right to use the sign
because the property was owned by New York State and leased
by IBM. Bognaski reiterated that such a sign would be con-
trary to company policy and according to Plavchan, said that if
he went ahead with the sign, he would have to “write him up.”
Both understood that they were talking about the large hand
painted sheet that Plavchan had draped over his van on a previ-
ous occasion off the property. According to Plavchan, he was
intimidated by Bognaski’s message and decided not to risk
anything by using his prounion sign. Although denying that he
used the words “write up,” Bognaski testified that he told
Plavchan that if he displayed the sign, he would be counseled
and that such a display would violate company policy.
At about 4 p.m. on July 23, 1999, Plavchan parked his van in
the parking lot near gate 1, which is located at the north east
part of the site at Route 52 and Palen Road. This, as described
above, is one of the two main gates to the site and the gate is
normally kept open at this time of day to accommodate people
leaving work and the people coming into work.
Plavchan noticed that the arm to gate 1 was down, which
therefore required people entering the property by car to use
their badges. (Anyone without a car, could simply walk over to
the parking lot where Plavchan parked his van.) He also no-
ticed, over time, that not too many people were leaving through
this gate and, therefore, very few people stopped by his van on
their way out of the site to discuss unionization. By having the
arm down, this had the affect of backing up traffic coming onto
the site from Route 52 and Plavchan, being resourceful, made
use of this fact to talk to and distribute union literature to the
occupants of vehicles slowly making their entrance to the site
through gate 1.
Unbeknownst to Plavchan, Susan Neiss had determined that
there was a possibility that nonemployees would be entering
3 The company utilizes badges that are electronically coded to allow
its employees or other authorized individuals access to designated
gates, buildings, and areas within buildings. These are obviously de-
signed to allow access only to authorized personnel and the evidence in
this case, indicates that the use of these badges is considered by both
management and employees to be important.
INTERNATIONAL BUSINESS MACHINES CORP. 217
onto the Company’s property and decided to secure the prop-
erty by closing some of the entrances. She ordered that except
for gates 1, 5, and 6 all other gates be closed. As to gates 1 and
5, she ordered that the arms be put down so that people seeking
access would have to use their IBM badges. As to gate 6, she
ordered that this be staffed by two security people who could
make a visual inspection of badges. Thus, pursuant to her or-
ders, anyone entering the site by vehicle would have to use or
show their badges at gates 1, 5, and 6 and anyone leaving the
site would have to use these same gates, albeit without needing
to use their badges. All other gates were closed.
Insofar as the western area of the site, employees located
there were told by way of a public address announcement that
“Gate 7 exiting to Route 52 is closed this evening, all employ-
ees are encouraged to use alternative exits this evening.”
The event planned for East Fishkill took place with few peo-
ple in attendance. Although it is impossible to say that em-
ployees did not attend because some of the other gates were
closed, one affect of the Company’s security measures was to
make it easier for Plavchan and employee William Costine to
approach and distribute union literature to employees entering
the site for the evening shift.4
C. The July 26 Poughkeepsie Event
The union meeting here was scheduled to commence on
Monday, July 26 at 5 p.m. in the parking lot adjacent to build-
ing 965. Employees had been notified of the meeting by post-
ings on the Internet chat room and by the distribution of flyers
in the cafeteria.
Shortly before 5 p.m., Plavchan took his van to the parking
lot and placed his van near the roadway (Route 9), which runs
adjacent to the property. (I should note that this is a parking lot
of considerable size.) There is an entrance to the property off of
Route 9 which is designated gate A-1, and this has a movable
arm which opens for entry by use of the IBM badge. There is
also a walkway between Route 9 and the parking lot which is
easily accessible to the parking lot by pedestrians. An addi-
tional walkway enters the parking lot from the south side which
is on IBM property.
Knowing that there was going to be a meeting at the parking
lot, the Poughkeepsie site security manager, Cathy Delaney,
spoke to Ms. Neiss from East Fishkill and was informed that
nonemployees had trespassed on that site on the previous Fri-
day. She therefore decided to take certain actions as follows.
Orange cones were set up at the entrance to the parking lot
where the meeting was to be held so that cars entering that lot
would have to enter in single file and show their IBM badges to
security officers. Additionally, a security officer, in a car, was
placed near the walkway between Route 9 and the lot. Finally a

4 William Costine who works on the west campus, recalled hearing
the announcement that some of the gates were closed. He testified that
he heard the announcer say that gate 7 at Palen Road and Route 52 was
closed. But it was clear from his testimony that he was not sure about
what he heard and the company offered competent evidence to show
that the announcement merely stated that gate 7 was closed. This an-
nouncement was made in the west campus only because the people
working there tended to use that gate to exit the property onto Route 52
at the end of their workday.
security officer was assigned to monitor the southern walkway.
Although the evidence was that the security officer at the ve-
hicular entrance did check badges of those entering, there was
no credible evidence that the names of any people who entered
the lot were recorded.5
The General Counsel and the Union contend that these secu-
rity measures were taken with the intention of engaging in sur-
veillance of employee union activity and in order to discourage
employees from entering the parking lot to talk to Plavchan and
the other employees who were engaged in union activity. The
Respondent contends that these were reasonable measures
taken to prevent the reasonably expected possibility that non-
employees would enter onto its property.
D. September 14, 1999
On September 14, 1999, IBM conducted an event called “A
Day In Time” at the Poughkeepsie site. This was a kind of
celebration/fair for the employees at this site.
Plavchan and Costine came to the event and while there, en-
gaged in a number of union activities including solicitation and
distribution of union literature. Additionally, Plavchan decided
to cover his van with his hand painted “Union Yes” sign and
Costine put a large prounion sign on the back window of his
vehicle. Plavchan’s sign was about 4 feet by 8 feet and
Costine’s sign was about 2 feet by 4 feet. At one point, Delaney
and another security officer asked Plavchan to remove his sign
but he refused, stating that he believed that he had the right
under Labor Law, to display his sign.
According to Plavchan, on the following day, his supervisor,
Carter, told him that he shouldn’t have displayed his sign and
that IBM “doesn’t want to fire anybody.” Plavchan replied that
he had the right to display such signs and asked for a written
policy that prohibited the display. During a period of time when
Carter was on the road, he and Plavchan exchanged e-mail
messages about the Company’s policy and eventually Plavchan
obtained a copy from the Company’s intranet site. Carter de-
nied that he made any type of threat to Plavchan and the fact is
that Plavchan did not receive any type of disciplinary action
with respect to this incident.
Costine testified that several days after September 14, he was
told by Manager Peter Yablonsky that he was going to be “writ-
ten up” because of the sign he displayed. Costine states that he
responded that he had the right to display such signs under the
law. According to Costine, he specifically requested a state-
ment in writing as to whether he would or would not be fired
for displaying the sign and was told that it was not grounds for
dismissal. Consequently, Costine has continued to display his
2-by-4 foot sign, testifying that he felt sure that he would not be
fired and at worst would only get a warning. Yablonsky, al-
though acknowledging that he spoke to Costine about the sign
being contrary to company policy, denied making any sort of
threat to Costine.
Apart from the alleged threats which were denied by com-
pany witnesses, it is acknowledged by Costine and Plavchan
5 The Respondent produced evidence that the instructions to the se-
curity officers were to ensure that anyone entering the parking lot and
grounds were IBM employees or have an IBM business need to be
there and to not take down any names or license plate information.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
that neither has received any kind of disciplinary action for the
display of the signs on September 14 or for Costine’s continued
display of his sign after that date. On the other hand, the Com-
pany insists that its policy regarding large signs on company
property is legal and it does not renounce the possibility of
imposing discipline to employees who violate the policy.
The Company’s posted rules relating to the issues involved
in these proceedings are as follows:

The orderly and efficient operation of IBM business
requires certain restrictions on solicitation of employees
and the distribution of material/information on company
property.
Commercial solicitations or distribution on IBM prem-
ises on behalf of non-IBM business enterprises are prohib-
ited at all times.
IBM employees may not engage in oral solicitations
interfering with work during working time, other than for
IBM business purposes.
IBM employees may not engage in the distribution of
materials in working areas or during working time of the
employees distributing or the working time of the recipi-
ent, other than for IBM business purposes.
Non-IBM employees or organizations have no right to
enter IBM property, including parking lots, for the purpose
of soliciting or distributing information to IBM employ-
ees, and will be reused access for any such purpose.
In the above, “working areas” do not include such ar-
eas as parking lots, restrooms and cafeterias; and “working
time” does not include such time as before or after work,
break or lunch periods.
Parking Lots are for the convenience of employees, au-
thorized business visitors and other invitees of IBM. The
parking lots are not to be used for commercial or political
purposes. Employees are prohibited from having signs on
their vehicles in parking lots when in the judgment of the
facility’s manager, the prominence, size, etc., of the sign
indicates that the vehicle is being used for commercial so-
licitation or advertising.

There was some evidence that employees, from time to time,
put “for sale” signs in the windows of cars; that some employ-
ees use sunscreens on their front windshields; and that others
have displayed bumper stickers. However, none of these kinds
of signs would be similar in size to the large sign displayed by
Plavchan. Moreover, the Company presented evidence that it
has ordered employees to remove “for sale signs” from cars left
in the parking lot for extended periods of time and that it would
compel employees to remove bumper stickers or sun screens
where the content was offensive.
III. ANALYSIS
The first issue deals with the Respondent’s reaction to the
meetings held at the company parking lots on July 23 and 26,
1999. The question is whether they were reasonable actions
taken in response to the possibility of nonemployees trespass-
ing on its property, or whether they were unreasonable actions
designed to prevent or discourage employees from attending
union meetings.
The second issue deals with the question of whether the em-
ployer has the right to prohibit employees from displaying large
prounion signs on their vehicles, in company parking lots,.
a. The East Fishkill meeting
In the case of the planned meetings at East Fishkill on July
23 and at Poughkeepsie on July 26, electronic and physical
notices were distributed to employees notifying them that union
meetings would be held on company property on the respective
dates. Employees were informed that the gatherings were to be
a “union sign-up party” and that they should look for the “union
van.” The notices did not indicate that only employees were
invited to the events and anyone reading the notices could rea-
sonably suspect that nonemployee union representatives would
also be present. And in fact, such representatives did enter onto
IBM’s property on July 23, 1999.
At the East Fishkill site, the security manager, fearing that
there might be trespasses took minimal security measures to
deal with that possibility. She had some of the unattended en-
trances closed and had the arm at gate 1 (at the East complex
and near the meeting), put down so that people entering had to
use their badges to lift the gate. (Those leaving merely had to
drive up to the gate which, having sensors, automatically lifted
the arm.) While Costine testified that he heard, while at the
West Complex, an announcement which he somehow inter-
preted as meaning that gate 1 at Route 52 and Palen Road was
closed, the evidence indicates that he was mistaken. In this
respect, the record demonstrates that employees in the West
Complex were merely told that gate 7, which also leads out to
Route 52, was closed.
The security measures taken by the Company at East Fishkill
did not and could not have prevented employees from stopping
off and attending the union meeting. Indeed, putting down the
mechanical arm at Gate 1 had the effect of backing up traffic at
the gate and making it easier for Plavchan and Costine to talk to
and distribute union literature to the drivers entering or leaving
the facility.
b. The Poughkeepsie meeting
More serious security measures were taken on July 26 at the
Poughkeepsie site. It is noted that by this time, the Company
was aware that nonemployees had come onto its property dur-
ing the East Fishkill, July 23 meeting.
On July 26, the Company partially blocked off the entry way
to the parking lot where Plavchan parked his van and had secu-
rity officers placed at the vehicular entrance checking IBM
badges to ensure that those entering were employees of the
Company and not outsiders. Additionally, the Company sta-
tioned two security officers in vehicles at the two pedestrian
walkway entrances to the parking lot. From Plavchan’s point
of view, these measures could reasonably be viewed as surveil-
lance of union activity and as measures designed to discourage
employees from entering into the parking lot to attend the union
meeting. From the Company’s point of view, these were rea-
sonable measures taken to prevent entry onto its property by
non-employees (i.e., trespassers).
Absent special circumstances not present in this case, an em-
ployer may bar from its property nonemployee union support-
INTERNATIONAL BUSINESS MACHINES CORP. 219
ers. Lechmere Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v.
Babcock & Wilcox, 351 U.S. 105 (1956).6 Put more prosaically,
whether I own or lease property, I have the right, for good rea-
son or ill (or no reason at all), to prevent my neighbor’s well
behaved children from playing on my front lawn.
An employer can take reasonable steps to insure that people
who are not employees (as opposed to off-duty employees), are
prevented from trespassing onto its private property. In Teksid
Aluminum Foundry, 311 NRB 711, 715 fn. 2 (1993), the Board
affirmed the administrative law judge’s conclusion that the
company did not engage in unlawful surveillance when it
posted security guards at its plant entrance and established a
procedure whereby persons seeking entry had to sign in and
out. The administrative law judge, citing Hoschton Garment
Co., 279 NLRB 565, 567 (1986), stated that employers “have a
right to respond to an organizational campaign by establishing
procedures for denying unauthorized persons access to their
facilities, and any incidental observation of public union activ-
ity by security guards is not unlawful.”
Faced with the possibility that nonemployees would wind up
on IBM’s property, it is my opinion that the Respondent had
the right to take reasonable security steps to make sure that this
did not happen. The steps taken on both days, including the
posting of security guards at the vehicular and pedestrian en-
trances to the Poughkeepsie parking lot, were reasonable meas-
ures to insure that trespassing by nonemployees did not occur.
As the evidence does not show that the security guards re-
corded the names or other identifying information of any em-
ployees who entered the lot to attend the union meeting, it is
concluded that these means were reasonable, and to the extent
that the security officers incidentally observed employee union
activity, this did not amount to unlawful surveillance.7
c. Prounion signs
Plavchan prepared a large hand painted sign on a bed sheet
soliciting employees to support a union at IBM. He had planned
to use this sign at the East Fishkill meeting on July 23, 1999,
but was dissuaded after talking to his supervisor. In this regard,
Plavchan testified that he was told that if he used the sign he
would be “written up,” whereas Bognaski testified that he told
Plavchan that such a display would violate company policy and
that he would be counseled.
In any event, Plavchan and Costine brought their signs to a
company event held at the Poughkeepsie site on September 14,
1999. Here they displayed their signs by placing them on their
vans that were parked in a company parking lot. The Plavchan
sign was about 4 feet by 8 feet and covered his van. Costine’s
sign was somewhat smaller, about 2 feet by 4 feet and was
hung on the back of his van. Both of these signs were much
larger than the typical “for sale” signs used by employees or
bumper stickers on employee vehicles. Costine’s sign was

6 No contention is made here, nor could one be asserted, that the Un-
ion had no reasonable means of communicating with employees.
7 In my opinion, the actions taken by IBM in relation to the possibil-
ity of trespass were far less intrusive on employee union activity than
the actions taken by the employer in Yenkin-Majestic Paint Corp., 321
NLRB 387, 395 (1996), where the Board found that the employer vio-
lated the Act.
about the same size, or perhaps a little larger, than sun screens
that employees use during the summer.
There is no dispute that the Company did not want and does
not now want these signs or similar signs placed within its
property. Both Plavchan and Costine were told, after Septem-
ber 14, 1999, that the display of their signs contravened com-
pany policy. Although there is a high degree of ambiguity as to
whether these employees were told that they would be “written
up” or “counseled” if they continued to use their signs, the fact
is that neither received any disciplinary action for their use of
the signs. And in the case of Costine, after he inquired of his
supervisor as to whether he could be discharged for using his
sign, he was told that he would not. Indeed, after the latter
communication, Costine has continued to use his sign without
incident.
Notwithstanding the lack of actual disciplinary action taken
against either Costine or Plavchan for using their signs, the
Company indicates that it reserves the right to enforce its rules
relating to solicitations and the use of large signs in parking
lots. This being the case, and as the employees in question
were notified that the use of these signs contravened company
policy, they could reasonably conclude that the continued use
of the signs could result in future disciplinary action against
them.
The display of signs, union insignia and other visual means
of supporting a union fall within the category of solicitation and
there are a fair number of Board decisions dealing with this
kind of activity. It is, I think, important to make a distinction
between the previous issue which dealt with whether the em-
ployer had the right to take reasonable steps to secure its prop-
erty from the trespass of outsiders as opposed to the issue here,
which involves the activity of its own employees who are invit-
ees on the Company’s property because of their employment
relationship.
In Firestone Tire & Rubber Co., 238 NLRB 1323 (1978), an
employee and shop steward was told that he could only con-
tinue to use the company parking lot if he removed from his
car, several large signs, one stating “Don’t Buy Firestone Prod-
ucts.” This parking lot was used primarily by company em-
ployees but also was used by visitors. When the individual
refused to remove the signs, he was disciplined. The Board,
citing the Supreme Court’s decisions in Eastex, Inc. v. NLRB,
434 U.S. 1045 (1978); Hudgens v. NLRB, 424 U.S. 507, 521 fn.
10 (1976); NLRB v. Babcock & Wilcox Co., supra; and Repub-
lic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), stated
inter alia,

In an unbroken line of decisions, this Board and the
Supreme Court have stated that where an employee exer-
cises his Section 7 rights while legally on an employer’s
property pursuant to the employment relationship, the bal-
ance to be struck is not vis a vis the employer’s property
rights, but only vis a vis the employer’s managerial rights.
The difference is ”one of substance,” since in the latter
situation Respondent’ managerial rights prevail only
where it can show that the restriction is necessary to main-
tain production or discipline or otherwise prevent the dis-
ruption of Respondent’s operations. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
The facts clearly reveal that but for the fact that the
parking lot was located on Respondent’s premises, Knight
was clearly engaged in protected concerted activities. This
Board has long held that actions taken in sympathy of
other striking employees fall within the protection of Sec-
tion 7 of the Act . . .
[T]he Administrative Law Judge cites Cashway Lum-
ber Inc., for the rule that an employee does not have a
right to affix union posters on the employer’s walls and
property. However, this case is clearly distinguishable
since Cashway, supra, stands only for the proposition that
an employee is not engaged in protected activity if he de-
faces the employer’s property. The mere presence of an
automobile on which signs have been attached does not
constitute the defacement of the property on which it has
been parked.
. . . .
This case does not present a situation analogous to
Southwestern Bell Telephone Co. supra, where a message
printed on shirts worn at work . . . was found to be “offen-
sive, obscene or obnoxious,” thereby justifying the em-
ployer’s actions taken against employees who refused to
remove them or cover them up. Here . . . the boycott signs
were not taken into Respondent’s work areas, did not in-
terfere with Knight’s ability to perform his assigned tasks,
and did not otherwise interfere with Respondent’s mana-
gerial rights. Here, the record clearly reveals that the
parking lot was primarily used by employees not then at
work and was an appropriate forum for communication
among them. The fact that other persons not employed by
Respondent may have had access to the parking lot and
accordingly have had occasion to read these signs in insuf-
ficient reason for Respondent to be able to control an em-
ployee’s exercise of his Section 7 rights.

In Coors Container Co., 238 NLRB 1312, 1319 (1978), em-
ployees of Coors during the course of an economic strike by
other employees of a related company, showed their sympathy
by placing signs in their vehicle windows stating; “Boycott
Coors-Scab Beer.” The company barred the display of such
signs on its property. The administrative law judge rejected the
company’s contention that the signs were not protected under
NLRB v. Electrical Workers Local 1229 (Jefferson Standard),
346 U.S. 464 (1953), for allegedly disparaging the product of
Coors. He also held, with Board approval, that the use of the
signs was a legitimate form of solicitation which did not inter-
fere with production or discipline. The Judge noted:
Here there is no showing of such special circumstances. Cer-
tainly none existed in the circumstances surrounding the dis-
play of the sign by Mugge and Clemente. The sign was dis-
played inside “Clemente’s” truck. They were some distance
away from any work location. There had been no incidents
among Respondent’s employees arising out of the strike, and,
in any event, the wording of the sign was not unduly provoca-
tive. The Board has long recognized that the term “scab” is not
so opprobrious as to justify barring its use in the workplace…
As to the general prohibition against the display of boycott
sings, no special circumstances were shown to exist anywhere
on Respondent’s premises which would justify, in the interest
of the maintenance of production and discipline, restricting the
employee’ right to engage in such activity. . . . I therefore find
that the rule promulgated by Respondent prohibiting the display
by employees of boycott signs was violative of Section 8(a)(1)
of the Act. Similarly, Respondent violated the Act . . . in ask-
ing Mugge and Clemente to remove the sign . . .

In Colonial Stores Inc., 248 NLRB 1187, 1189 (1980), the
Board held that an employer violated the Act by discharging an
employee who used a sign to make a protest regarding the em-
ployer’s handling of a grievance. The Board stated:

[I]nformational picketing and leafleting, even in the
face of a contractual no-strike provisions, are in further-
ance of contractual grievance procedures and, hence, pro-
tected by the Act. This is true so long as an employee en-
gaging in such activity does not thereby seek to circum-
vent the bargaining representative and engage in direct ne-
gotiations with the employer. Picketing during non-work
time in order to advertise a grievance has been analogized
to presenting the employer with a written list of grievances
. . . .
We further find that the protest was not undertaken in
an unlawful manner. Contrary to Respondent, the protest
did not constitute a strike in violation of the contractual
no-strike agreement. While asserted . . . that its operations
were disrupted, [it] admitted that no employees stopped
work and no customers left the store due to the protest.
The sign on its face urged no such action, and neither
Whitmore nor her husband verbally urged any interruption
of Respondent’s business. We have held that a sign dis-
played on an employee’s car, which does not interfere
with production, threaten disruption of the employer’s op-
erations, or convey a message which is “offensive, ob-
scene or obnoxious” may be an appropriate medium for
communication among employees.

United Technologies Corp., 279 NLRB 973 (1986), reversed
and remanded sub nom. Machinists Lodge 91 v. NLRB, 814
F.2d 876 (2d Cir. 1987), involved a company rule prohibiting
large signs or banners on employee vehicles in company park-
ing lots. The ban applied only to large signs and specifically
allowed the use of less conspicuous items such as bumper
stickers and window signs and had no affect on other means of
communication such as literature distribution and oral solicita-
tions. A Board majority (Dotson and Johansen, with Dennis
dissenting), concluded that the rule prohibiting large signs or
banners did not violate the Act. In reaching this result, the ma-
jority opined that employee protected rights had to be balanced
against the managerial and property rights of the employer.
Concluding that the employer’s policy was not a complete ban
on the display of union material on employee vehicles, the ma-
jority distinguished its previous decision in Firestone Tire &
Rubber Co., supra and held that the Respondent had “simply
taken reasonable measures to prevent its employee parking lots
from being transformed into havens for distracting billboards
for all causes imaginable.”
The Union appealed the Board’s holding to the Second Cir-
cuit that concluded that the Board had departed from estab-
INTERNATIONAL BUSINESS MACHINES CORP. 221
lished and longstanding precedent. Discussing the history of the
law relating to solicitations by employees on company prop-
erty, the court noted inter alia;

Once an employer brings an employee onto company
premises to work, as is the case here, the employer cannot
assert its property interests as a basis for limiting protected
speech by that employee. . . . In this situation the employer
must rely exclusively on its managerial rights. . . .
Managerial rights decisions make clear that any
restriction of employees’ on premises communication in
nonworking areas during nonworking hours “must be pre-
sumed to be an unreasonable impediment to self-
organization . . . in the absence of evidence that special
circumstances making the rule necessary.” . . . In light of
this presumption of unreasonableness, the Board and the
courts have consistently imposed on employers the burden
of proving “that the restrictions are necessary to maintain
production or discipline or otherwise prevent the disrup-
tion of [company] operations.” . . . In addition, the Board
has recognized that legitimate safety concerns are among
the managerial interests that may overcome the presump-
tion of invalidity and justify restriction of employees’ pro-
tected speech.
The only interest identified by the company . . . was
the company’s concern over the appearance of its em-
ployee parking lots. Undeniably, this is a legitimate prop-
erty interest, but it would only enable the company to limit
protected speech by non-employees. In order to conclude
that the employer’s aesthetic concerns are legitimate
managerial interests; however, the Board would have had
to find that the appearance of the employee parking lots
had some effect on productivity, discipline, safety, or effi-
ciency.

In the present case, the Respondent presented witnesses to
support its claims that the prohibition against large signs in
company parking lots was justified by safety concerns and by
concerns about its corporate image.
The contention that people driving on the private streets on
IBM’s property would be sufficiently distracted so as to present
a safety hazard is not convincing. The speed limit, at most, is
30 mph and the population of people using these roads is a
mature and sober lot. Thinking about this matter while driving
home from Manhattan and passing dozens of large billboards at
60 mph, I wasn’t convinced that the two signs displayed in the
IBM parking lot, could have caused a hazardous condition on
the internal roadways on the Respondent’s property.
Nor am I persuaded by the evidence produced by the Re-
spondent in support of its corporate image argument. It is true
that at the Poughkeepsie site, there are visitors who come to the
various buildings to participate in conferences and presenta-
tions designed to sell very large and expensive machines. The
visitors who do come are often high level corporate officials
from either new prospective customers or old customers who
may want to buy more new stuff. IBM obviously wants to
make a very good impression on these people who may or may
not choose to place orders valued in excess of $1 million. In
this respect, IBM has to compete with other computer vendors
such as Sun Microsystems, Hewlett-Packard, or Hitachi.
But the fact is that the signs used in this case were placed in
a parking lot and not in the immediate vicinity of the buildings
where prospective customers are invited. Moreover, no effort
was made by union supporters to interfere with or dissuade
these prospective customers from doing business with IBM.
The people who arrive as potential customers are, I suspect,
sophisticated people who may have dealings of their own with
unions in their own bailiwicks. I respect the company’s desire
to protect and preserve its corporate image. But I cannot say
that the display by a couple of employees of these particular
two large signs on their vehicles would be the kind of conduct
which would tend to tarnish that image.
In my view, the majority opinion of the Board in United
Technologies supra, constitutes an anomaly and was contrary to
longstanding Board and court precedent. The problem, I think,
was the assertion of a standard balancing managerial and prop-
erty rights against employee speech rights where the judicially
approved standard had always been to balance only the em-
ployer’s managerial rights against the employees’ free speech
rights. Therefore I shall recommend, in the present case, that
the Board reaffirm the Firestone standard.
As the company has published a rule barring large signs in
parking lots and as the two employees, Plavchan and Costine,
were specifically told that their actions were violative of com-
pany policy, I shall conclude that the Respondent violated Sec-
tion 8(a)(1) of the Act, even if there had been no explicit or
implicit threat of disciplinary action. Comcast Cablevision, 313
NLRB 220 fn. 3 (1993). As the company still reserves the right
to enforce this rule, even if has not done so in the circumstances
of this case, its employees can reasonably believe that contin-
ued display of such signs may result in future disciplinary ac-
tion against them.8 Moreover, even if Plavchan was not told
that he would be written up if he displayed his sign, his super-
visor admittedly told him that he would be counseled if he did
so. While this does not necessarily translate into a typical
threat, I must say that as a statement by a supervisor that the
employee is engaged in conduct which is viewed as a violation
of company policy, this can lead a reasonable person to believe
that continued violation of the rule could lead to a future ad-
verse action.
CONCLUSIONS OF LAW
1. By maintaining a rule and telling employees that this rule
prohibits them from displaying prounion signs on their vehicles
in company parking lots, the Respondent has violated Section
8(a)(1) of the Act.
2. The Respondent has not violated the Act in any other
manner alleged in the complaint.
3. The aforesaid violation affects commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and

8 I thought that the witnesses presented by the Union and the com-
pany were equally credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, International Business Machines Corpora-
tion, Poughkeepsie and East Fishkill, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining, in force and effect, a rule to the extent that it
would preclude its employees from displaying signs supporting
the Communications Workers of America, Local 1120, AFL–
CIO, or any other labor organization, on their cars while parked
in company parking lots.10
(b) Telling employees that the display of large signs on their
cars in company parking lots in support of a union, constitutes a
violation of company policy.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities in East Fishkill and Poughkeepsie, New York, copies of
the attached notice marked “Appendix.”11 Copies of the notice,
on forms provided by the Regional Director for Region 3, 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 customarily

9 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
Board and all objections to them shall be deemed waived for all pur-
poses
10 The import of this recommended order is not to prevent the com-
pany from promulgating or enforcing rules relating to signs, banners or
any other types of displays, except as to signs that are related to or in
furtherance of employee rights protected under Sec. 7 of the National
Labor Relations Act.
11 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondents at any time since July 23, 1999.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT maintain, in force and effect, a rule to the
extent that it would preclude employees from displaying signs
on their cars while parked in company parking lots, supporting
the Communications Workers of America, Local 1120, AFL–
CIO or any other labor organization.
WE WILL NOT tell employees that the display of large
signs supporting a union, on their cars in company parking lots
constitutes a violation of company policy.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce you in the rights guaranteed you by Section 7
of the Act.

INTERNATIONAL BUSINESS MACHINES
CORP.