NCR Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 574 (N.L.R.B. 1993)

574
313 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 15, 1993, Administrative Law Judge Marvin Roth
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
1 All dates are for 1992 unlesss otherwise indicated.
NCR Corporation and Communications Workers of
America, Local 4900, AFL–CIO. Case 9–CA–
30321
November 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether the judge correctly
found that the Respondent violated Section 8(a)(1) of
the Act by maintaining an overly broad no-
solicitation/no-distribution policy.1 The Board has con-
sidered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, NCR Corporation, Dayton,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Vyrone Cravanas, Esq., for the General Counsel.
Timothy Butler, Esq., of Dayton, Ohio, for the Respondent.
Barbara J. Baird, Esq., of Indianapolis, Indiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Dayton, Ohio, on June 17, 1993. The charge was
filed on December 11, 1992, by Communications Workers of
America, Local 4900, AFL–CIO (the Union).1 The com-
plaint, which issued on February 19, 1993, alleges that NCR
Corporation (the Company or Respondent) violated Section
8(a)(1) of the National Labor Relations Act. The gravamen
of the complaint is that the Company allegedly unlawfully
maintained a policy prohibiting employees from distributing
materials including union-related material, in the dormitory
area of its Dayton, Ohio technical education center training
facility, and applying that policy by confiscating union lit-
erature from an employee and by advising him not to distrib-
ute union literature in that area. The Company’s answer de-
nies the commission of the alleged unfair labor practices. All
parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
The General Counsel, the Union, and the Company each
filed a brief.
On the entire record in this case and from my observation
of the demeanor of the witnesses, and having considered the
briefs and arguments of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a corporation, is engaged in the sale, instal-
lation, and servicing of computer and related equipment at its
Dayton, Ohio facility. In the operation of its business, the
Company annually purchases and receives at its Dayton,
Ohio facility goods valued in excess of $50,000 directly from
points outside of Ohio. I find, as the Company admits, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Company maintains a training facility at Miamisburg,
near Dayton, Ohio, known as C-TEC. The facility, which
opened in 1970, is a large complex of interconnected build-
ings, including training areas, an administration building, a
cafeteria which seats 500 persons, and seven 2-story dor-
mitory buildings. The training areas comprising five build-
ings including the administration building, are open and
functioning from 8 a.m. to 5 p.m. At other times trainees
normally do not have access to the training areas. The cafe-
teria, located between the training areas and dormitory build-
ings, is open around the clock. Each dormitory building con-
tains, on each floor, 30 to 32 small individual residence
rooms (with 2 rooms each sharing a bathroom), a recreation
area, and a lounge area. Residence room floors are covered
with ‘‘indoor-outdoor’’ type carpeting. The dormitories have
a total of 370 residence rooms.
At irregular intervals, and for varying periods of time, the
Company assigns employees from throughout the United
States, and some from other countries, for training at C-TEC.
Most are field engineers, who repair computer equipment.
Some are sales trainees. The majority are company employ-
ees, the others being employees of company contractors.
Some are supervisory personnel. Most of the Company’s dis-
trict offices, and consequently most attendees at C-TEC, are
not represented by any labor organization. However, some of
the field engineers are in represented units, including units
represented by unions other than Communications Workers
of America (CWA). Typically, 5 to 10 percent of attendees
are from other countries.
Zef Bazan, whose title is manager of finance and adminis-
tration, has been in charge of C-TEC since 1975. The Com-
pany has a staff of about 100, including instructors, devel-
opers, and administrative engineering, shipping and receiv-
ing, and data center personnel. Through a security service (in
November 1992, Allied Security Service), the Company pro-
vides security at the facility. There is guard service in the
dormitory area. The Company has also contracted with
Marriot Corporation to operate the dormitories and cafeteria.
Marriot’s housekeeping staff cleans rooms between 9 a.m.
575NCR CORP.
and 3 p.m., when attendees are in class, in a manner similar
to that of a hotel staff. However, as indicated by the evi-
dence in this case, the Company, through Bazan, retains con-
trol over the facility, including security policy.
The overwhelming majority of attendees, who are not
based in the Dayton area, live in the dormitories while at-
tending C-TEC. If there is an overflow, then some may be
placed in nearby motels. However, visitors are permitted in
the dormitories, and those attendees who are not living at the
facility have access to the dormitory buildings during early
evening hours.
Field engineer Gary Taylor, the General Counsel’s prin-
cipal witness, works out of the Company’s district office in
Indianapolis, Indiana, about 170 miles from Dayton. Taylor
testified that he has attended C-TEC some 14 or 15 times
since 1974. Taylor attended C-TEC at a session from No-
vember 10 to 20, 1992, when the events which gave rise to
this case occurred. Taylor testified that during his November
1992 session the dormitories appeared to be substantially
full, because some attendees were placed in motels. Manager
Bazan, the Company’s only witness, testified that the facility
had an average of 300 students weekly, and there had been
no overflow housing condition since 1991.
When attendees arrive at C-TEC, they check in at a reg-
istration desk between the cafeteria and the dormitories,
where they are given registration materials. Normally they
would not have occasion to return to the desk except to re-
quest information or pick up their mail, which is placed in
nearby mail slots. Since 1989, when the dormitories under-
went a major renovation, each residence room has a tele-
phone. There are at least six bulletin boards located either
near the registration desk or in the dormitory buildings.
However, one is reserved for official information and two are
glass covered.
The Company’s field engineers report to their respective
district offices. However, they are assigned a specific area
and customers, and normally operate from their homes. Typi-
cally they come to the district office only to attend monthly
meetings or to make pickups or dropoffs, usually about once
a week.
In late 1991 and early 1992, the Union (the Indianapolis
local of CWA) conducted an organizational campaign among
the Company’s field engineers assigned to the Indianapolis
district office. A representation election was conducted on
March 9, 1992. The Union lost the election. However, the
Union continued to engage in organizational activity among
the Company’s field engineers.
Field engineer Taylor testified in sum as follows: He is a
member of the Union’s organizing committee. While at C-
TEC in November 1992, he engaged in organizational activ-
ity. Specifically, he distributed union literature to persons in
the dormitory hallways, in lounge and recreation areas, and
at residence rooms. If a residence room door was open, he
would offer the literature to the occupant. If the door was
closed, he would slip the literature (a pamphlet) under the
door. When the door was closed, he did not know whether
the room was occupied, or by whom. He sometimes put lit-
erature on the bulletin boards, but the literature was usually
removed, although he does not know by whom. He did not
distribute literature in the cafeteria, because he heard there
might be problems. He usually distributed literature after 5
p.m., i.e., after classes had adjourned for the day. To Tay-
lor’s knowledge, no company agent observed him until the
event which gave rise to this proceeding.
Roger Runyan, the General Counsel’s other witness, is a
field engineer operating out of the Company’s Dayton dis-
trict office. Runyan testified in sum that on several occasions
he has distributed union literature at C-TEC in a manner
similar to that of Taylor’s. To his knowledge, he was not ob-
served by any company agent.
Taylor further testified in sum as follows: On November
19, at about 9:40 p.m., he was distributing union pamphlets
in one of the dormitories, from room to room, when stopped
by Jeff Wilder, a security guard. Wilder told Taylor that he
needed permission to distribute the pamphlets, and con-
fiscated them. The following day (the last of his stay) Taylor
was told to report to Manager Bazan’s office. Bazan said that
Taylor was caught distributing pamphlets in the dorm, and
asked if he had read the ‘‘memo’’ he received at the dorm.
Taylor said he had not received such memo. Bazan then
handed him a company memo dated February 11, 1992,
which read as follows:
Subject: NON SOLICITATION AND DISTRIBUTION POLICY
This memo is to restate NCR’s ‘‘Non Solicitation and
Distribution Policy.’’
NCR HAS PROVIDED BULLETIN BOARDS FOR THE DIS-
PLAY OF INFORMATION AND PRINTED MATERIAL. NCR
RESERVES THE RIGHT TO REMOVE INFORMATION AND
PRINTED MATERIAL FROM BULLETIN BOARDS WHICH
CONTAINS OFFENSIVE LANGUAGE OR HAS BEEN POSTED
MORE THAN 7 DAYS. NCR WANTS TO MAINTAIN THE
PROFESSIONAL DECOR OF THE FACILITY AND THERE-
FORE, INFORMATION AND PRINTED MATERIAL IS NOT TO
BE DISPLAYED ON THE OUTSIDE (HALLWAY) SURFACE OF
RESIDENCE DOORS, OR LEFT UNATTENDED IN THE PUB-
LIC AREAS OF THE DORM OR in other areas of the TEC
facility. ANY EMPLOYEE VIOLATING THIS POLICY WILL
BE ASKED TO CEASE THE VIOLATION. A SECOND VIOLA-
TION WILL RESULT IN FURTHER DISCIPLINARY ACTION
AS APPROPRIATE.
PERSONS WHO ARE NOT EMPLOYEES OF NCR CANNOT
SOLICIT OR DISTRIBUTE PRINTED MATTER FOR ANY PUR-
POSE ANYWHERE ON CORPORATE PROPERTY. EMPLOY-
EES ARE NOT PERMITTED TO SOLICIT FOR ANY REASON
DURING WORKING TIME.* EMPLOYEES ARE NOT PER-
MITTED TO DISTRIBUTE PRINTED MATTER FOR ANY PUR-
POSE DURING WORKING TIME OR DURING NONWORKING
TIME IN WORKING AREAS.
WORKING TIME DOES NOT INCLUDE BREAK PERIODS
AND/OR MEAL TIMES.
Bazan told Taylor that he needed Bazan’s permission to dis-
tribute any kind of literature, and that Bazan in turn would
need approval from his superiors. Taylor answered that he
had a right under Federal law to organize in a nonwork area
at a nonworktime. Bazan replied that if Taylor was caught
again disciplinary action would be taken against him.
Manager Bazan testified in sum as follows: The February
11 memo was included in a packet of information given to
each student at registration, and was a statement of company
policy. There were three reasons for the rule prohibiting em-
ployees from leaving information and printed material ‘‘unat-
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Gemco, 271 NLRB 1190 (1984), also cited by the Company (Br.
7) is inapposite. That case involved a retail store. As the selling
floors, i.e., ‘‘public areas’’ of the store were working areas, the em-
ployer could lawfully prohibit distribution of literature in such areas,
and the Board so held.
tended’’: (1) ‘‘general housekeeping,’’ (2) safety, because a
person could slip on paper passed under a residence room
door, and (3) because general distribution would not be ‘‘of
interest to everyone with our varied backgrounds.’’ Bazan
could not think of anything, other than a company notice,
which would be of interest to all. The Company has given
notice of presentations through the mail slots. To his knowl-
edge, no mass distributions have been permitted at C-TEC.
Bazan refused to permit the Gideon Society to distribute Bi-
bles because of the varied religious backgrounds of the Com-
pany’s students.
Bazan further testified in sum as follows: His meeting
with Taylor was informational rather than disciplinary. He
did not warn Taylor not to let it happen again. He told Tay-
lor that if he wanted to do it again he should see Bazan and
request permission. Bazan would then seek advice from the
company employee relations department. Bazan had to seek
such advice if the distribution ‘‘did not pertain to all resi-
dents.’’
Field engineers Taylor and Runyan testified in sum as fol-
lows: It was a common practice to slip communications and
other material, such as computer discs, printouts, or maga-
zines under a residence door if the recipient could not be lo-
cated. However, this was done on an individual basis rather
than as part of a general distribution. Before the Company
installed telephones in the residence rooms, messages con-
cerning telephone calls were passed in this way. However,
they were not aware of any general distribution of written
material other than their union activity.
B. Analysis and Concluding Findings
In light of Bazan’s testimony, it is evident that the Com-
pany interprets and applies its ‘‘Non Solicitation and Dis-
tribution Policy’’ as to prohibit all general distribution of
union literature at C-TEC, including person-to-person dis-
tribution. As indicated, Bazan testified that the rule was pro-
mulgated in part to preclude distribution of literature which
was not of interest to all attendees, and that except for com-
pany notices, he could not think of anything which would be
of such interest. Bazan also testified that he did not warn
Taylor not to distribute literature again without permission.
However, the memo which Bazan handed to Taylor stated
that ‘‘a second violation will result in further disciplinary ac-
tion as appropriate.’’ Therefore, it is immaterial whether
Bazan verbally warned Taylor of future discipline.
It is settled law that an employer rule which prohibits em-
ployees from engaging in union solicitation during
nonworktime, or distribution of union literature during
nonworktime and in nonwork areas, is presumptively unlaw-
ful in the absence of evidence that special circumstances
make the rule necessary in order to maintain production or
discipline. NLRB v. Magnavox Co. of Tennessee, 415 U.S.
322, 324 (1974). The dormitory buildings, cafeteria, and ad-
jacent hallways of C-TEC are nonwork areas of that facility,
and the employees who attend that facility are entitled to the
employee rights of union solicitation and distribution as de-
fined in Magnavox. Those rights also extend to employees of
company contractors who attend the facility. See Southern
Services, 300 NLRB 1154, 1155 (1990), enfd. 954 F.2d 700
(11th Cir. 1992). I find, without merit, the Company’s argu-
ment (Br. 14–15) that students at the facility should be re-
garded as nonemployee ‘‘resident-guests,’’ and entitled only
to the rights of nonemployee union organizers, as defined in
Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992), and NLRB
v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). C-TEC
is a place of work for the attendees, who are there pursuant
to and as part of their employment, and C-TEC is a work-
place operated by and under the Company’s control. There-
fore, Magnavox is applicable to the present case.
Therefore, it follows that the Company’s no-distribution
policy, on its face and even more so as interpreted and ap-
plied by Bazan, is presumptively unlawful, in the absence of
the limited conditions defined in Magnavox. The reasons ad-
vanced by the Company for its policy fall well short of dem-
onstrating those conditions.
The Company’s assertion that it may lawfully prohibit dis-
tribution of union literature as not of interest to all C-TEC
attendees is patently without merit. The right of employees
to distribute union literature during nonworktime and in non-
work areas is not limited only to distribution to prospective
union members. Employees have a statutorily protected right
to solicit sympathy, if not support, from the general public,
customers, supervisors, or members of other labor organiza-
tions.
The Company’s other professed reasons for its no-distribu-
tion rule fail as a threshold matter because they are based on
surmise and speculation rather than demonstrated need. As
indicated, Magnavox requires that the employer come for-
ward with evidence that the rule is necessary to maintain
production or discipline. Thus in Korn Industries v. NLRB,
389 F.2d 117, 124–125 (4th Cir. 1967), cited by the Com-
pany (Br. 12), the court upheld a no-distribution rule because
the rule was enforced only in the employer’s factory area,
and the employer presented evidence that distribution in the
factory area could cause a fire hazard. In Erie Marine, Inc.,
192 NLRB 793 (1971), also cited by the Company, the em-
ployer operated a shipbuilding plant where welding torches
and similar equipment was used. The Board held that the
employer could lawfully maintain a rule prohibiting distribu-
tion of literature ‘‘in such a manner as to litter the plant.’’2
In the present case, the Company’s rule, both on its face and
as enforced, applied to the entire C-TEC facility, and was not
limited to distribution which caused litter to the facility. No
evidence was presented that employee distributors sought to
or did throw ‘‘thousands of pieces of paper in the air’’ or
toss ‘‘shredded confetti’’ in the residence rooms (R. Br. at
p. 11). In this regard, it is significant that although the Com-
pany contracted housekeeping functions to Marriot, an out-
side firm, no evidence was presented that Marriot or its
housekeeping staff ever complained that distribution of union
literature posed any particular problem. As indicated,
Marriot’s staff routinely cleaned and serviced all residence
rooms in a manner similar to that performed in a hotel. It
is evident that in those few instances where Taylor or an-
other employee distributor may have placed a union pam-
phlet in an unoccupied room, Marriot’s staff could and
would simply remove the pamphlet in the course of their
housekeeping functions.
577NCR CORP.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
An overly broad no-distribution rule is invalid regardless
of the employer’s motivation in promulgating or enforcing
such rule. However, a facially valid rule may be unlawful if
applied in a discriminatory manner. In this regard, it is also
significant that the Company, rather than Marriot, invoked
the rule for alleged ‘‘general housekeeping’’ and ‘‘safety’’
considerations. In New Process Co., 290 NLRB 704, 720
(1988), the Board found evidence of unlawful motivation,
where an employer supervisor, rather than a person normally
engaged in cleanup work, removed union leaflets which were
allegedly left ‘‘helter-skelter’’ on breakroom tables.
With regard to the Company’s alleged ‘‘safety’’ consider-
ation, the Company’s comparison of the C-TEC dorms to a
hotel or motel is enlightening. It is a common practice in
many hotels and motels to slip copies of bill statements,
complimentary newspapers, or other papers under room
doors, without prior notice to the occupant. Although both
employees Taylor and Runyan had been distributing union
literature in the dorms for some time prior to November 19,
the Company presented no evidence that any occupant had
ever complained of an accident or near accident. Indeed, the
Company’s argument in this regard, when considered in light
of the nature of the occupants’ work, borders on the frivo-
lous. It is evident that persons engaged in the work of repair-
ing computer equipment are accustomed to the possibility of
paper lying about on the floor.
The Company’s no-distribution rule was also unlawful in
another respect. As indicated, the Company generally permits
attendees to post material on some bulletin boards in the dor-
mitory areas. However, under the rule, the Company ‘‘re-
serves the right to remove information and printed material
from bulletin boards which contains ‘offensive language.’’’
What constitutes ‘‘offensive language’’ is a matter of subjec-
tive interpretation. In Great Lakes Steel v. NLRB, 625 F.2d
131 (6th Cir. 1980), the court held as overly broad and un-
lawful, an employer rule that: ‘‘No employee is permitted to
bring in or distribute, at any time on Company property, lit-
erature which is libelous, defamatory, scurrilous, abusive or
insulting or any literature which would tend to disrupt order,
discipline or production within the plant.’’ In the present
case, the term ‘‘offensive language’’ could be interpreted by
the Company or employees as applying to union literature.
Therefore, in this regard the rule was overly broad and un-
lawful.
I further find that the Company, by its agent, unlawfully
confiscated union literature from Taylor. Even if the Compa-
ny’s no-distribution rule were valid, the Company had no le-
gitimate basis for taking such action.
In sum, I find that the Company’s ‘‘non solicitation and
distribution policy’’ was overly broad and unlawful, and that
the Company acted unlawfully by maintaining and enforcing
that policy, telling Taylor not to distribute union literature in
the dormitory area, and confiscating such literature from
Taylor. The Company thereby violated Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(5) of the Act.
REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) of the Act, I shall recommend that it be
required to cease and desist therefrom and from like or relat-
ed conduct, and to take affirmative action designed to effec-
tuate the policies of the Act, including posting of appropriate
notices.
I shall recommend that the Company be ordered to rescind
its ‘‘non solicitation and distribution policy.’’ I agree with
the Union that in view of the unique nature of the C-TEC
operation, a conventional 60-day-notice posting at the facility
would be inadequate notice to the Company’s field engi-
neers, scattered throughout the United States, who would
have an interest in and whose rights would be defined by the
remedial Order. I also agree that it would be difficult to
monitor compliance with a requirement that the Company be
ordered to post notices at each of its district offices. How-
ever, I also find that it would be unduly burdensome, and out
of proportion to the violations found, to require the Company
to mail copies of the notice to its field engineers nationwide.
I find, in the circumstances, that an appropriate remedy
would be to extend the posting at C-TEC to a period of 1
year. Although as the Union points out, field engineers are
not necessarily sent for training every year, such a posting
period should be sufficient to afford substantial dissemination
of notice to interested and affected employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, NCR Corporation, Dayton, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees, including employees of sub-
contractors, from distributing union literature during
nonworktime and in nonwork areas, including the dormitory
area of its technical education center training facility (C-
TEC).
(b) Discriminatorily prohibiting posting of union literature
in nonwork areas.
(c) Confiscating union literature in nonwork areas.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
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.’’
(a) Rescind and cease distribution of its ‘‘Non Solicitation
and Distribution Policy.’’
(b) Post at its C-TEC facility copies of the attached notice
marked ‘‘Appendix.’’4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 9, after being
signed by the Respondent’s representative, shall be posted by
Respondent immediately on receipt and maintained continu-
ously for 1 year in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT prohibit employees, including employees of
subcontractors, from distributing union literature during
nonworktime and in nonwork areas, including the dormitory
area of our technical education center training facility (C-
TEC).
WE WILL NOT discriminatorily prohibit posting of union
literature in nonwork areas.
WE WILL NOT confiscate union literature in nonwork areas.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind and cease distribution of our ‘‘Non So-
licitation and Distribution Policy.’’
NCR CORPORATION