North Hills Office Services

National Labor Relations Board - Board Decisions

Nov 30, 2005

345 N.L.R.B. 1262 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 107
1262
North Hills Office Services, Inc. and Service Employ-
ees International Union, Local 32BJ, AFL–
CIO.1 Case 29–CA–26546
November 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 31, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Charging Party filed a response.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
brief, and response and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
I. BACKGROUND
The Employer is a cleaning contractor that services of-
fice buildings in the New York/New Jersey Metropolitan
area. The Respondent employs about 400 cleaning em-
ployees who work at various locations. The location at
issue, 25 Harbor Park Drive, Port Washington, New
York, is occupied by Pall Corporation, a company that
manufactures and distributes filtration devices.
About May 2004,2 the Charging Party Union com-
menced an organizing drive among the Respondent’s
employees at its various locations. Ruth Perez, an em-
ployee at the Pall Corporation location, spoke with a un-
ion organizer in the parking lot of the building after her
shift sometime in June, and was observed doing so by
Supervisor Policarpio Cruz. On the following day, Cruz
told Perez that he had been informed by the facility secu-
rity guard that Perez was talking to a nonemployee on
company property. Cruz reminded Perez, “we have to
follow building norms and, [you cannot talk] with mem-
bers of 32BJ or any other stranger inside the parking lot.”
Cruz informed Perez that she had every right to talk to
anyone she wanted but not on the company’s property.
The Respondent maintains a rule stating, “No unauthor-
ized personnel on the job at any time. (This includes
children[.]) Only people who are employed by North
Hills Office Services can be on the property.”
Perez had another conversation with a union organizer
while in her car in the parking lot after her shift some-
time in July. Field Supervisor Angel Alvarez saw Perez
talking to someone he assumed to be a union organizer.

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 Unless otherwise stated, all dates are in 2004.
Alvarez approached Perez’ car and said to Perez, “You
must leave the property if you want to talk to them.”
Alvarez told Perez that she could continue her conversa-
tion off the property only 25 feet away. Perez complied.
The next day, Alvarez reminded Perez of the Respon-
dent’s rules. Alvarez testified that Pall Corporation told
him to be “very careful” with nonemployees on the prop-
erty because the building was considered a terrorist at-
tack target.3
The issue is whether, as alleged in the complaint and
found by the judge, the Respondent violated Section
8(a)(1) of the Act by instructing an employee not to
speak with union representatives who were not author-
ized to be on the property in question.4 The judge, al-
though acknowledging that the Respondent would not
have violated the Act by telling the union organizer to
leave the property, nonetheless concluded that the Re-
spondent could not legally tell its own employees not to
talk to a union organizer about union business while on
the property during their nonwork time.5 We disagree.
II. ANALYSIS
It is well established that an employer may take rea-
sonable steps to ensure that nonemployees are prevented
from trespassing on its property.6 See NLRB v. Babcock
& Wilcox, 351 U.S. 105, 112 (1956). The General Coun-
sel contends, and the judge found, that the Respondent
was not lawfully denying access to nonemployees but
was instead restricting its employee from engaging in
Section 7 activity, which is unlawful absent special cir-
cumstances. See Republic Aviation Corp. v. NLRB, 324
U.S. 793, 803 (1945), citing Peyton Packing Co., 49
NLRB 828, 843 (1943), enfd. 142 F.2d 1009 (5th Cir.
1944), cert. denied 323 U.S. 730 (1944).

3 The facts are as found by the judge, augmented by the undisputed
facts in the record. We note that the judge made two inadvertent errors.
First, the judge stated that the facility at issue is located in Port Jeffer-
son. Second, the judge found that Cruz admitted telling Perez that a
security guard informed Cruz that Perez was talking to someone on
company property, but Cruz’ testimony does not support this finding.
These inadvertent factual discrepancies do not affect the result in this
case.
4 The complaint also alleged that the Respondent created the impres-
sion of surveillance, interrogated employees about their union activi-
ties, and threatened employees with discharge and with stricter en-
forcement of company rules because they supported the Union. The
judge dismissed these allegations, and there were no exceptions to these
dismissals.
5 There was no exception to the judge’s finding that the Respondent
had the right to prevent nonemployees from trespassing on the prop-
erty, which the Respondent did not own. The Respondent provided
services for a company that occupied the property.
6 Although not necessary for our analysis here, we note that the Un-
ion had alternative channels of communication available to reach em-
ployees.
NORTH HILLS OFFICE SERVICES 1263
The burden is on the General Counsel to prove by a
preponderance of evidence that the Respondent’s con-
duct violated Section 8(a)(1) by interfering, restraining,
or coercing Perez in the exercise of her Section 7 rights.
Assuming that Perez was engaged in Section 7 activity
when she spoke with union organizers, the General
Counsel still failed to prove a violation here.
The Respondent, through Supervisors Cruz and Alva-
rez, simply reminded Perez of the Company’s rule pro-
hibiting access to the property by unauthorized person-
nel,7 and requested that she not abet violations of that
rule by engaging in conversations with trespassers on the
property. The fact that the Respondent directed its ad-
monition to the employee, rather than to the union organ-
izer, does not change the result. We find the judge’s and
our colleague’s distinction elevates form over substance
—there is no meaningful difference between the Re-
spondent’s telling the union organizer to leave the prop-
erty and the Respondent’s telling Perez to stop talking to
the union organizer while on the property. In both in-
stances, the purpose and effect of the instruction is to
obtain compliance with a property restriction, one that
does not impermissibly restrict Section 7 activity.
Our colleague points to cases which emphasize the dis-
tinction between employees and nonemployees. How-
ever, that distinction, as applied in those cases, means
that employees have a Section 7 right to speak with other
employees on company property (at appropriate times
and places), but nonemployees do not have the right to
even be on company property and thus, necessarily, have
no right to speak with employees on company property.
It is thus clear that the Respondent could tell the nonem-
ployee to leave the property. The necessary consequence
of this ouster of the nonemployee would be that the non-
employee would not be able to speak with the employee
on company property. In view of this, we see no mean-
ingful distinction between directing the nonemployee to
leave the property and directing the employee to not talk
to the nonemployee.8
Our finding that the Respondent was not interfering
with its employee’s rights is confirmed by the supervi-

7 There are no exceptions to the judge’s finding that the rule was
lawful.
8 As there is no meaningful distinction between telling the union or-
ganizer to leave the property, and telling Perez to refrain from talking
to him, we disagree with our colleague’s assertion that the Respondent
did not “seek to enforce the no-access rule against an asserted tres-
passer” and that the Respondent “tolerated the union organizer’s pres-
ence on its property.” We find that the Respondent did in fact “seek” to
enforce its no-access rule against the trespassing union organizer by
telling Perez not to talk to the union organizer while on its property.
Thus, contrary to the dissent, we do not conclude that the Respondent
tolerated the union organizer’s presence on its property.
sors’ statements. Alvarez told Perez that she could con-
tinue her conversation with the union organizer off the
property only 25 feet away, and Perez complied. Simi-
larly, Cruz told Perez that she could talk to anyone she
wanted, but not on the property. These statements dem-
onstrate that the Respondent was not restricting Perez
from engaging in Section 7 activity. Instead, Cruz’ and
Alvarez’ statements constituted a request that Perez not
undermine a legitimate prohibition that was consistent
with its work rules and its client’s safety concerns, while
at the same time acknowledging Perez’ rights.
We do not disagree with our colleague on the law.
However, because we find the Respondent’s conduct
effectively was directed at the nonemployee trespasser’s
presence on the property, we find inapposite the cases
she cites addressing no-access rules enforced against
employees who exercise their Section 7 rights on com-
pany property. Our colleague does not consider the lack
of evidence that the Respondent in any manner restricted
employees in the exercise of Section 7 activity when the
activity did not involve trespassers. Additionally, she
ignores a fact we find telling—that Perez could, and in
fact did, continue her conversation off the property. Ac-
cordingly, we find that the Respondent did not violate
Section 8(a)(1) of the Act, and we reverse the judge and
dismiss the complaint.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
The Respondent contends that it legitimately enforced
a rule barring property access to strangers. However, it
enforced the rule not against a (nonemployee) stranger,
but against an employee who was lawfully on the prop-
erty and engaged in protected activity. The majority
agrees with the Respondent that its conduct was lawful,
finding no significant difference whether the no-access
rule is enforced against an employee or a stranger to the
property. However, “[t]he distinction is one of sub-
stance.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105,
113 (1956).
On two occasions in the midst of a union organizing
drive, the Respondent’s supervisors told employee Ruth
Perez that she was not permitted to speak to visitors in
the building parking lot. Perez was off-duty in each in-
stance, and the supervisors were aware that the visitors
she spoke with were union organizers. Although the Re-
spondent argues that it was merely enforcing a rule pro-
hibiting strangers on the property, in neither case did it
attempt to eject the union organizers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1264
Employers generally have a property right to exclude
nonemployee union organizers from company property.1
But different considerations apply with respect to em-
ployees who exercise their Section 7 rights on the em-
ployer’s property. As the Board has explained, citing a
long line of precedent:
In an unbroken line of decisions, this Board and
the Supreme Court have stated that, where an em-
ployee exercises his Section 7 rights while legally on
an employer’s property pursuant to the employment
relations, the balance to be struck is not vis-à-vis the
employer’s property rights, but only vis-à-vis the
employer’s managerial rights. The difference is
“one of substance,” since in the latter situation Re-
spondent’s managerial rights prevail only where it
can show that the restriction is necessary to maintain
production or discipline or otherwise prevent the dis-
ruption of Respondent’s operations.
The Firestone Tire & Rubber Co., 238 NLRB 323 (1978)
(citations omitted).2 As in Firestone Tire, the facts here
clearly reveal that the Respondent’s managerial interests
were not threatened in any way by Perez’ off-duty parking
lot conversations with union organizers. As the judge
found, the Respondent has not proved any special circum-
stances here to justify the restriction on employee protected
activity. See, e.g., International Business Machines Corp.,
333 NLRB 215, 221 (2001), enfd. 31 Fed.Appx. 744, 2002
WL 451783 (2d Cir. 2002) (unpublished).
In contrast, what the Respondent has established is a
pretext for interference with protected rights. In neither
instance did it seek to enforce the no-access rule against
an asserted trespasser.3 Instead, the Respondent used the
rule in a manner that clearly had the effect of restraining
Perez’ protected activity during an organizing drive.
Indeed, the Respondent’s asserted concern with property
rights, endorsed by the majority, is completely at odds
with the fact that the Respondent actually tolerated the
union organizer’s presence on the property. What it
clearly did not tolerate was its employee talking to a un-
ion organizer. Thus, contrary to the majority, the Re-
spondent was not really enforcing a no-access rule; it did

1 Babcock & Wilcox Co., supra; Lechmere, Inc. v. NLRB, 502 U.S.
527 (1992).
2 The Board and the courts have long been engaged in “working out
an adjustment between the undisputed right of self-organization assured
to employees . . . and the equally undisputed right of employers to
maintain discipline in their establishments.” Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 797–798 (1945).
3 The Respondent was not the owner of the parking lot, but there are
no exceptions to the judge’s finding that the Respondent would have
had the right to preclude nonemployee union organizers from trespass-
ing on the property. See generally Wild Oats Community Markets, 336
NLRB 179, 180 (2001).
not really care about the purported trespass. What it
wanted to halt was the conversation.
I therefore would find that the Respondent violated
Section 8(a)(1).
James Kearns, Esq., for the General Counsel.
Alan Pearl, Esq. and Nancy Hark, Esq., for North Hills.
Judith I. Padow, Esq. and Katchen Locke, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on February 15, 2005. The
charge in this case was filed on September 27, 2004, and the
complaint was issued on December 22, 2004. It alleged
1. That on or about June 3, 2004, the Respondent, by its Su-
pervisor Policarpio Cruz, (a) prevented employees from speak-
ing with union representatives in the parking lot, (b) created the
impression of surveillance, and (c) interrogated employees
about their union activities.
2. That in July 2004, the Respondent, by its Supervisor An-
gel Antonio Alvarez, prevented employees from speaking to
union representatives in the parking lot.
3. That in July 2004, Alvarez threatened employees with dis-
charge and with stricter enforcement of company rules because
they supported the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
within the meaning of Section 2(2), (6), and (7) of the Act. I
also find that Service Employees International Union, Local
32BJ, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
North Hills Office Services is a cleaning contractor that does
business in the New York/New Jersey Metropolitan area. In
the present case, it has a contract to provide these services in a
building located at 25 Harbor Park Drive in Port Jefferson, New
York. This is a 2-story building which has a single tenant, the
Pall Corporation.1 That company has offices and some kinds of
laboratories in the building. North Hills has about 10 or 11
cleaning people who work at the building, normally between 6
and 10 p.m.
The Respondent employs about 400 cleaning employees who
work at about 60 to 65 locations. Since 1974, with one excep-
tion, its employees, on a companywide basis, in the classifica-
tions of matrons and porters, have been represented by another
labor organization called the National Organization of Indus-

1 The Pall Corporation, according to its web site is a company prin-
cipally engaged in the business of making various types of filters.
NORTH HILLS OFFICE SERVICES 1265
trial Trade Unions (NOITU).2
In or about May 2004, the Charging Party commenced an
organizing drive among various Respondent’s employees at
various locations. In the present case, union organizers at-
tempted to approach employees at 25 Harbor Park Drive in
early June 2004.
Ruth Perez testified that in early June 2004, she spoke with a
union organizer in the parking lot one evening after her shift
ended. She testified that Supervisor Policarpio Cruz passed by
while she had this conversation. He concedes that he saw her
having a talk with someone whom he assumed to be a Local
32BJ organizer.
On the following day, Cruz approached Perez and admittedly
told her that a security officer for the building, via the security
camera, had seen her talking to someone and that she should
not be talking to visitors in the parking lot. He told her that the
Respondent’s rules forbid employees from talking to visitors on
company property. She testified that Cruz gave her a copy of
the Respondent’s employee rules and told her that she had to
follow the rules or she would be fired. He testified that he told
her that she had to follow company rules but states that he did
not mention any consequences for failing to do so.
Perez also testified that in July 2004, there was another occa-
sion when she spoke to a union organizer in the parking lot as
she was in her car. According to Perez, on this occasion a man
whom she later found out was Angel Alvarez, came over to the
car, banged on the window and told her that she had to leave;
that she couldn’t be talking to someone in the parking lot.
Perez testified that on the following evening, at the beginning
of her shift, Alvarez came over to her, introduced himself and
said that the building was a terrorist target and that she could
not be talking to people in the parking lot. She also testified
that he said that the employees did not need a different union
and that they already received various benefits. According to
Perez, Alvarez finally said that things were going to change and
that the employees no longer could continue to come in late or
go home early and that three mistakes could cost an employee
her job.
With respect to the July incidents, Alvarez testified that he
approached Perez while she was in her car and politely told her
that she could not be talking to someone in the parking lot after
work; that if she wanted to talk to this person she could go 25
feet and talk to him outside the lot. (Alvarez admits that he
assumed that she was talking to a Local 32BJ organizer.) He
testified that on the following morning, he spoke to Perez
merely to remind her of the Company’s rules about talking to
visitors on company premises, which he understood to include
the parking lot. He denied telling Perez that the Company was
going to make any changes in the way it enforced its rules and
in this respect, I am going to credit his version. I note in this
respect that the General Counsel produced no other witnesses to
assert that the Respondent had announced plans to more strictly
enforce its rules.

2 For a more complete description of the Company’s operations and
the ongoing contest between the Charging Party and NOITU, see my
decision in JD(NY)–05–05.
III. ANALYSIS
After reviewing the testimony and consistent with my credi-
bility findings, I do not conclude that the Respondent interro-
gated employees about their union activities, threatened stricter
enforcement of company rules, or gave employees the impres-
sion that their union activities were being kept under surveil-
lance. In the latter regard, while it is true that Cruz told Perez
in early June 2004, that her conversation with a visitor had been
observed on a security camera, the evidence indicates that the
tenant or building owner had previously placed security cam-
eras around the premises. Therefore Cruz’ comment to her was
merely a truthful description of what had happened the previous
night and should not be construed as an indication that the Re-
spondent was going to engage in union surveillance. I also
credit his denial that he threatened her with discharge.
Therefore, the basic remaining question here is whether the
Company could tell its employees that they could not speak
with union organizers during their off-duty hours while they
were present in the parking lot owned or leased by the Respon-
dent’s client.
Since the parking lot is someone’s private property and as
there are no special circumstances herein, the owner or the
leaseholder could call the police and legally prevent non-
employees from trespassing. Absent special circumstances not
present in this case, an employer may bar from its property
nonemployee union supporters. Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992); NLRB v. Babcock & Wilcox, 351 U.S. 105
(1956).3 Put more prosaically, whether I own or lease property,
I have the right, for good reason 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 conclusion that a 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 organiza-
tional campaign by establishing procedures for denying unau-
thorized persons access to their facilities, and any incidental
observation of public union activity by security guards is not
unlawful.”
However, while it is perfectly permissible for a property
holder to preclude nonemployees from gaining entrance to
private property, the same rule does not automatically apply to
the employer’s own employees. In Firestone Tire & Rubber
Co., 238 NLRB 1323 (1978), an employee and shop steward
was told that he could only continue to use the company park-
ing lot if he removed from his car, several large signs, one stat-
ing, “Don’t Buy Firestone Products.” This parking lot was
used primarily by company employees but also was used by
visitors. When the individual refused to remove the signs, he

3 No contention is made here, nor could one be asserted, that the Un-
ion had no reasonable means of communicating with employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1266
was disciplined. The Board, citing the Supreme Court’s deci-
sions in Eastex, Inc. v. NLRB, 434 U.S. 1045 (1978); Hudgens
v. NLRB, 424 US. 507, 521 fn. 10 (1976); NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 113 (1965); and Republic 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’s 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. . . .
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 Company, supra, where a
message printed on shirts worn at work . . . was found to
be “offensive, obscene or obnoxious,” thereby justifying
the employer’s actions taken against employees who re-
fused to remove them or cover them up. Here . . . the boy-
cott signs were not taken into Respondent’s work areas,
did not interfere with Knight’s ability to perform his as-
signed tasks, and did not otherwise interfere with Respon-
dent’s managerial 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 communi-
cation among them. The fact that other persons not em-
ployed by Respondent may have had access to the parking
lot and accordingly have had occasion to read these signs
is insufficient reason for Respondent to be able to control
an employee’s exercise of his Section 7 rights. . . .
The point here is that although it would be permissible for
the Respondent or its clients to take steps to preclude union
organizers from trespassing onto private property, it is an alto-
gether different story for the Respondent to prevent its own
employees from engaging in union or protected concerted ac-
tivity on private property during their nonworking time. Em-
ployees who work on private property are not strangers but
occupy the status of invitees. As there is no showing that such
activity by employees would adversely affect production or
work discipline, I can see no justification for a supervisory
direction to an employee (with the necessary implication of
disciplinary action for noncompliance), to refrain from engag-
ing in protected activity in the parking lot. Thus while I would
not find that the Respondent violated the Act by telling a union
organizer to leave the parking lot, I would also find that the
Respondent could not legally tell its own employees not to talk
to a union organizer or other employees about union business
on the lot during their nonwork time. International Business
Machines Corp., 333 NLRB 215, 219–221 (2001).
The Respondent may argue that there are special circum-
stances here. In this regard, there was some testimony that
Respondent’s management were told by the tenant that it was a
terrorist target. But that little piece of hearsay evidence is not
sufficient in my opinion. The Respondent presented no other
evidence to show that securing the parking lot and making it
inaccessible to visitors was necessary for national or anyone
else’s security. The tenant may have laboratories in the build-
ing but I have no idea what they are for. The parking lot is not
surrounded by any fences and the entrances are not patrolled by
security guards to prevent unauthorized access. On the con-
trary, the lot is adjacent to a public road, has three unsupervised
entrances and can be accessed either by vehicle or by foot.
CONCLUSIONS OF LAW
1. The Respondent, North Hills Office Services, Inc., is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Service Employees International Union, Local 32BJ,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By directing off-duty employees not to engage in union
activity in the parking lot, the Respondent has violated Section
8(a)(1) of the Act.
4. The aforesaid violation, affects commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Except to the extent found here, I recommend that the
other allegations be dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Inasmuch as this is the fourth Decision finding that the Re-
spondent has violated various provisions of the Act in relation
to attempts by Local 32BJ to organize its employees, I shall
recommend that the notice, in English and Spanish, be posted at
all facilities in New York and New Jersey where the Respon-
dent is performing services.
[Recommended Order omitted from publication.]