Marriott Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1976

223 N.L.R.B. 978 (N.L.R.B. 1976)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marriott Corporation (Children's Inn) and Arthur H.
Fleischner. Case 1-CA-10394
April 20, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On January 20, 1976, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed exceptions and briefs in support thereof and in
answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
Relying on Essex International, Inc.,' the Adminis-
trative Law Judge found that Respondent's no-solici-
tation rule' violated Section 8(a)(1) of the Act on the
grounds that Respondent failed to advise employees
that the term "working hours" does not apply to non-
working time such as breaks. The Administrative
Law Judge further found that Respondent would not
be justified in prohibiting employee solicitations in
its cafeteria , even though it is a sales area occupied
by customers, because it is the place where employ-
ees normally congregate during their breaktime and
no restrictions have been placed on what employees
have discussed at those times. Although we agree
with the Administrative Law Judge that Respon-
dent's no-solicitation rule is unlawful, we do not
adopt his rationale.
While rules which prohibit solicitation during
"working hours," as this rule apparently does, are
generally presumptively invalid,4 an exception to this
policy is made in the case of restaurants, which, be-
cause of the nature of their business, may prohibit
solicitation, even during break and lunch periods, in
areas where customers are likely to be present.' How-
ever, the instant ban on solicitation is not limited to
the customer or sales area of the restaurant. There-
fore, Respondent's no-solicitation rule is overly
broad and invalid on its face because it appears to
include within its prohibitions any union activity on
the employees' own time in nonpublic areas of the
restaurant .6 Accordingly, we shall modify the Ad-
ministrative Law Judge's recommended Order and
notice to reflect our basis for finding the rule unlaw-
ful.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Mar-
riott Corporation (Children's Inn), Boston, Massa-
chusetts, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 1(a):
"(a) Maintaining in effect a rule which prohibits
employees from engaging in union solicitation during
nonworking time in nonpublic areas of the restau-
rant."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS HEREBY FURTHER ORDERED that the complaint
be, and it hereby is, dismissed insofar as it alleges
violations not found herein.
Member Jenkins does not rely on the Administrative Law Judge's con-
clusion that Fleischner's attendance at an employees' meeting played "no
substantial part" in his discharge . He regards the discharge as attributable
solely to Fleischner 's unauthorized absence from his work area.
'211 NLRB 749 (1974).
3 The rule states as follows: "Unauthorized solicitation of employees dur-
ing working hours by, or on behalf of any individual, organization, club or
society, is strictly prohibited."
C Essex International, supra. Members Fanning and Jenkins , while dissent-
ing in Essex, agreed with the majority that the term "working hours" is
ambiguous and that a rule utilizing that term is presumptively invalid.
5 Bankers Club, Inc., 218 NLRB 22 (1975); Goldblatt Bros., Inc., 77 NLRB
1262 (1948). Member Jenkins, in the case of a rule limited to customer areas,
considers that Bankers Club holds presumptively valid only a rule which is
limited also to the times customers are in those areas.
6 See Alberts, Inc., 213 NLRB 686 (1974).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain in effect a rule which
prohibits employees from engaging in union so-
licitation during nonworking time in nonpublic
areas of the restaurant.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed under
Section 7 of the Act.
MARRIOTT CORPORATION (CHILDREN'S INN)
223 NLRB No. 141
MARRIOTT CORPORATION 979
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This pro-
ceeding was initiated by a charge filed by Arthur H.
Fleischner on January 17, 1975.1 Pursuant thereto, com-
plaint issued on August 6 alleging that the above-captioned
Respondent had maintained a no-solicitation rule violative
of Section 8(a)(1) of the Act and had suspended and dis-
charged Fleischner for his protected concerted activity,
namely, his participation in an employee meeting on Janu-
ary 14. On November 18, a hearing was held in Boston,
Massachusetts.
Upon the entire record, including my observation of the
witnesses , and after consideration of the briefs filed by
General Counsel and Respondent, I hereby issue the fol-
lowing:
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
At the times relevant herein, Respondent was engaged in
the operation of a hotel and restaurant known as the
Children's Inn located at Children's Hospital in Boston,
Massachusetts.2 Thomas Brett was general manager, Wil-
liam Shoemaker was assistant food and beverage manager,
and James Postizzi was the chef. All were admittedly su-
pervisors within the meaning of Section 2(11) of the Act.
On January 13, Fleischner, who was employed by Re-
spondent as a cook, discussed with other employees certain
employee complaints about working conditions such as
work schedules and duties.:The employees decided to have
a meeting of all employees at 2:30 p.m. the next day.
The next day, chef Postizzi was told by an employee of
the planned meeting and he transmitted the report to Man-
ager Brett. Brett told him it was just a rumor as far as they
knew and there was nothing to be done about it. About
2:15 p.m.,3 Fleischner left the kitchen to meet with employ-
ees who were either eating or had gathered in the cafeteria
area. He had not received permission to leave the kitchen
from Postizzi and Postizzi had followed him out to the
cafeteria and had asked him to return to work. Fleischner
refused. Another cook, John Attaya, who had been sched-
uled to begin work at 2 p.m., was also asked to go to work
by Postizzi and he likewise refused. Postizzi pulled the
timecards of both employees and had Manager Brett sum-
moned to the cafeteria, Brett came, confirmed that Fleisch-
ner and Attaya were refusing to go to work, and directed
1 Unless otherwise indicated, all dates hereinafter are in 1975.
2 Jurisdiction is not in issue . The complaint alleges, the answer admits,
and I find that Respondent meets the Board's jurisdictional standard for the
assertion of jurisdiction over hotel and restaurant facilities.
3 Initially, on direct, Fleischner fixed the time imprecisely between 2 and
2:30 p.m. On cross -examination, he fixed the time as precisely 2:30 p.m. The
record as a whole , including the fact several employees were scheduled to
return to work at 2:30 p.m., persuades me that Fleischner left the kitchen
about 2:15 p.m.
them to come to his office. When they did not report, he
returned to the cafeteria. This time, he had a company rule
book from which he read rules 9 and 10.
9. Unauthorized leaving of work or work area prior
to end of work day.
10. Unauthorized solicitation of employees during
working hours by, or on behalf of any individual, or-
ganization, club or society, is strictly prohibited.
Fleischner told Brett no one had solicited for anyone or
anything and Brett told him to be quiet. Brett then sus-
pended Fleischner and Attaya for 3 days and told them he
would see them on Friday. Fleischner and Attaya proceed-
ed to the locker room and were followed by Assistant
Manager Shoemaker. According to Respondent, after first
barring Shoemaker's entry into the locker room, Fleischner
used abusive language against and struck Shoemaker in-
side the locker room. Fleischner denied this.
On the following day, Brett called Fleischner and asked
him to come to his office where he told Fleischner that he
was changing the suspension to termination. Brett had a
performance appraisal form on which had been written
that Fleischner was being terminated for the following rea-
sons:
On January 14, 1975 this employee violated the fol-
lowing Co. policies:
1. Refused to return to his work station when
asked.
2. Refused a direct order from two members of
management.
3. Left work area unauthorized.
4. Used abusive language to management.
5. Struck a member of management with his hand
and uniform.
6. Insubordination.
Fleischner denied any of the charges were true and in
the course of the conversation, Brett crossed out item 4.
Fleischner refused to sign the form and left.
B. Analysis and Conclusions
1. The discharge of Fleischner
The foregoing is a summary of the facts which gave rise
to this proceeding, and except for the events in the locker
room the summary essentially presents undisputed facts.
The most significant of such facts are that Fleischner left
his work station without permission and refused to return
when requested to do so. Respondent asserts that its dis-
charge of Fleischner on these facts poses the issue "Wheth-
er Section 7 gives an employee the right to leave his regu-
larly scheduled work assignment for the purpose of
attending a meeting with other employees in a public eat-
ing area operated by the employer, when the employee's
leaving his work station demonstrably interferes with the
operation of the employer's business."
Respondent resolves the issue by asserting that Section 7
of the Act accords employees no such right. As Respon-
dent phrases the issue, I would agree. However, Respon-
dent has omitted from its statement of the issue the ele-
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of motive and if that element is added , the answer to
the issue depends on the conclusion reached regarding the
Employer's motive . To put it simply, the employer has the
right to discharge an employee for cause , including leaving
his work station when he is scheduled to work , provided,
however, that that is the real reason for the discharge and
that leaving his work station is not a pretext to discharge
the employee because of his protected concerted activities.
General Counsel asserts that this is a pretext situation.
According to General Counsel , Fleischner had no regular
break period and it was his practice , with Postizzi 's knowl-
edge , to take a break at times when work was caught up or
slow, as was the case at about 2 : 15 p.m., on January 14.
Moreover, Fleischner testified that on about six occasions
during his employment (which began April 20, 1974) he
had received permission on various occasions to leave
work to attend to personal matters such as banking or buy-
ing gifts . General Counsel asserts, in effect , that in light of
this practice, Postizzi's refusal to give Fleischner a break
when he had no work at about 2 p.m., on January 14 and
his order to Fleischner to return to work were attributable
not to operational problems but rather to the fact that
Fleischner's reason for wanting a break was to participate
in a meeting of employees . As noted earlier, Postizzi had
been advised of the scheduled meeting and had been suffi-
ciently concerned to report the matter to Brett.
In addition , General Counsel asserts that an unlawful
motive may be inferred from Brett's reading of the no-
solicitation rule to the employees and his conversations
with waitresses Ether and Olivier in his office after the
suspension of Fleischner and Attaya. Ether and Olivier
credibly testified that in the afternoon of January 14, they
were called to Brett's office separately and were asked why
they had been holding a meeting . They explained the prob-
lems about which they were concerned , including a recent
reduction of a half-hour per day. Brett restored the half-
hour . In the course of the conversation , Brett asked him if
they were aware of what a union was and when Ether and
Olivier replied that that had nothing to do with the meeting
the subject was dropped.
The foregoing matters do bring into question Re-
spondent 's motive in discharging Fleischner , but I con-
clude that they create a suspicion only and are insufficient
to support a finding that Fleischner 's discharge was viola-
tive of Section 8(axl) of the Act . The operative fact in
support of this decision is the fact that Fleischner was
away from his work station without permission , coupled
with the conclusion that the record is insufficient to sup-
port a finding that permission was denied him for discrimi-
natory reasons.
According to the undenied testimony of Brett and Pos-
tizzi, which I credit , pursuant to an arrangement with
Fleischner whereby he was permitted to leave work 1 hour
early Fleischner did not receive a scheduled break. This
did not mean that he received no breaks at all. Postizzi
testified that if things were slow Fleischner would be per-
mitted to take a break of a few minutes . This accords with
Fleischner's testimony except that he emphasized that he
did not even ask permission . However, there appears to be
a distinction between taking a break and leaving the work
area ; as I understand Fleischner 's testimony, when he left
the work area (by which I mean kitchen) he asked and
received permission.
As noted above, Fleischner testified to leaving the kitch-
en on about six occasions. However, the time of day when
such absences were authorized is unclear. Only in connec-
tion with banking requests did Fleischner suggest a time
and that was before 3 p.m., but he fixed that time by the
bank's closing hours and the accuracy of his testimony was
brought into serious question when it was stipulated that
the bank closed at 4 p.m., since his requests could as well
have been before 4 p.m., as before 3 p.m. Be that as it may,
assuming, arguendo, that on an occasion or two he was
given permission to leave the kitchen before 3 p.m., there
remains for consideration the need for his services then as
compared with January 14. According to Postizzi, on such
occasions as Fleischner was permitted to leave the work
area before January 14, not only was the work slow, but
also there were other cooks in the kitchen to cover
Fleischner's station. This was not the case on January 14.
Fleischner was a sandwich cook. When he left the kitchen,
there were no other cooks to cover his station if an order
came in from the lounge except Postizzi , and it was not
Postizzi's job or custom to fill in for his cooks. James Wet-
sonis, breakfast cook, was on a scheduled break from 2 to
2:30 p.m. Cook John Attaya was scheduled to report in at
2 p.m., but he clocked in at 2:15 p.m., and instead of re-
porting to the kitchen joined the group in the cafeteria. As
noted earlier, Attaya refused to report to the kitchen when
requested to by Postizzi and, like Fleischner, was suspend-
ed and discharged.
As to the question of the need for a cook at the time in
question, there is uncontradicted testimony that breakfast
cook Wetsonis left the cafeteria and prepared a food order
for a lounge customer before 2:36 p.m., and that Peter
Borst checked in at 2:36 p.m. and was ready for work a few
minutes later and an order was on hand to be filled. Borst
was not scheduled to begin work until 3 p.m. In assessing
Postizzi's motive, it is noteworthy that he requested that
Borst begin work early during the confrontation between
management and Fleischner . Such a request demonstrates
a concern on Postizzi's part that Fleischner's work station
be covered.
For all the foregoing reasons, I am persuaded and find
that Postizzi did not refuse to grant Fleischner permission
to leave to prevent his attendance at a meeting among em-
ployees, but rather that he did so for a valid business rea-
son. In making this finding, I am mindful of Postizzi's testi-
mony that when he denied Fleischner permission he
reminded him of the manager's open door policy for em-
ployee complaints. At first blush, it appeared to me that by
this reminder Postizzi was trying to discourage group ac-
tion and that this was also the reason for his refusal to
grant Fleischner permission to leave. On further reflection,
it appeared to me an equally plausible explanation that
Postizzi told Fleischner about the open door policy be-
cause Fleischner was claiming that then was the only time
he had to discuss working conditions with other employees.
(Whether or not this was so is immaterial; Respondent was
not required to give employees permission to meet when
they were supposed to be working.) Accordingly, I draw no
adverse inference from Postizzi 's remark.
MARRIOTT CORPORATION 981
Nor do I draw any adverse inference because Brett read
to Fleischner and the other employees an unlawful no-so-
licitation rule. As Fleischner told Brett , there was no solici-
tation going on, but there was a meeting and as I under-
stand Brett's testimony the reading of the rule was
attributable to his equating the meeting of the employees
with solicitation . The fact of the matter is the employees
were attempting to hold a meeting . The further fact is that
they were attempting to do so on company property. Sec-
tion 7 of the Act does not accord employees the right to
hold meetings on company property as a general rule and
there are no circumstances here which would justify ex-
cepting from that rule . Apart from that , it is undisputed
that no action was taken against any employee present at
that meeting except Fleischner and Attaya who were on
worktime . All other employees , including Ether and Olivier
who had been active with Fleischner in promoting the
meeting , were on breaktime or off the clock. Thus, discipli-
nary action was taken only against the two employees who
were absent from their work stations . This fact argues
strongly that the real reason for the suspension and ulti-
mate termination of Fleischner and Attaya was attribut-
able to their absence from their work stations and not to
their violation of any unlawful no-solicitation rule.
In refusing to infer an unlawful motive from Brett's ref-
erence to the no-solicitation rule, I am not concluding that
Brett was not concerned about the nature of Fleischner's
activity at that particular time . Brett's conduct in talking to
Ether and Olivier later on that afternoon and inquiring
about the reason for the meeting and remedying one of
their complaints indicates a serious concern on his part
about employee group action . Nevertheless , I am persuad-
ed that such concern played no substantial part in the deci-
sion to discharge Fleischner.
Finally , I have considered the fact that Supervisor Shoe-
maker and one Judy Bender , who may have been a super-
visor , referred to Fleischner 's discharge and stated that
Fleischner was a troublemaker . These remarks are entitled
to no weight as they were made by individuals who played
no part in the decision to discharge Fleischner.
For all the foregoing reasons, I conclude that General
Counsel has failed to establish by a preponderance of the
evidence that the discharge of Fleischner was attributable
to his exercise of rights guaranteed by Section 7 of the Act.
2. The no-solicitation rule
As indicated earlier , Brett read the following no-solicita-
tion rule to the employees on January 14: "Unauthorized
solicitation of employees during working hours by, or on
behalf of any individual , organization , club or society, is
strictly prohibited." Distinguishing between no -solicitation
rules which prohibit solicitation or distribution during
"working time" or "working hours ," the Board has held, as
General Counsel points out , that rules which prohibit solic-
itation or distribution during "working hours" unduly re-
strict employees ' rights under Section 7 of the Act to en-
gage in union solicitation or distribution during their
nonworking time unless their impact on lunch and break-
time is clarified . Essex International Inc., 211 NLRB 749
(1974). In the instant case , there is no evidence that Re-
spondent has clarified the term "working hours" to em-
ployees to advise them that such term does not apply to
nonworking time such as breaks . To the contrary, when
Brett read the rule he read it to a group of employees near-
ly all of whom were on break . Respondent asserts that the
rule was invoked only against employees who were sched-
uled to be at work stations , namely, Fleischner and Attaya,
and that employees understood that the rule did not apply
to normal breaktime conversations between employees on
any subject . Employee Olivier may have had that under-
standing, but there is no showing the other employees had
a similar understanding . In any event , the burden was on
Respondent to remove any doubt created by its ambigu-
ously phrased rule.
Respondent asserts that as applied to the cafeteria the
rule would be lawful because it is a sales area occupied by
customers. I do not agree . The record indicates that the
cafeteria is the place where the employees normally
congregate during their breaktime (naturally so , because it
appears that this is when they eat their meals ). It is undis-
puted that there have been no restrictions on what employ-
ees have discussed among themselves when they have min-
gled together in the cafeteria during break period . In these
circumstances , despite the fact that the area is a sales area,
the Respondent would not be justified in prohibiting em-
ployee conversations which constitute solicitation of em-
ployees in connection with either union representation or
working conditions which are of common concern . For the
foregoing reasons, I find that the no-solicitation rule herein
is unlawful.
CONCLUSIONS OF LAW
1. Marriott Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By ,maintaining in effect a rule prohibiting union so-
licitation of employees during "working hours," Respon-
dent has interfered with , restrained , and coerced employees
in the exercise of rights under Section 7 of the Act and
thereby engaged in and is engaging in an unfair labor prac-
tice within the meaning of Sections 8(a)(1) and 2(6) and (7)
of the Act.
3. General Counsel has failed to establish by a prepon-
derance of the evidence that the discharge of Arthur H.
Fleischner was violative of Section 8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in an unfair
labor practice in violation of Section 8(a)(1) of the Act, I
find it necessary to order Respondent to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , conclu-
sions of law, and upon the entire record in this case, I
hereby issue the following recommended:
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER4
Respondent, Marriott Corporation, Boston, Massachu-
setts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining in effect a rule which prohibits employ-
ees from engaging in union solicitation during nonworking
time.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives
of their own choosing, and to engage in other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the National
Labor Relations Act, as amended:
4In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
(a) Post at the Marriott Corporation (Children's Inn),5
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the said Regional Director for Region 1, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
The allegation of the complaint that Arthur Fleischner
was discharged in violation of the Act is hereby dismissed.
5 General Counsel asserts in brief that Respondent advised that it would
no longer operate Children's Inn after December 1975. If, on compliance,
such is determined to be the case, Respondent shall not be required to post
the notice.
6In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"