Southern Services

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1154 (N.L.R.B. 1990)

1154
300 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is not alleged that Coke is a joint employer of SSI’s employees.
2 SSI employees have badges that identify them as subcontractor employees
who work on Coke’s premises. Coke employees have different badges.
3 SSI employees who drive must park in an open lot adjacent to the tunnel.
4 Coke’s policy provides as follows:
Persons who are not employees of the Company are not permitted on
Company property either to solicit employees or to distribute material to
Company employees at any time, and will be refused access for any such
purpose.
5 The complaint did not allege that Coke unlawfully promulgated or main-
tained its solicitation and distribution policy.
6 The fact that Copeland sought to distribute literature only to fellow SSI
employees is undisputed.
Southern Services, Inc. and Service Employees
International Union, AFL–CIO, Local 679
The Coca Cola Company and Service Employees
International Union, AFL–CIO, Local 679.
Cases 10–CA–24040, 10–CA–24090, and 10–CA–
24092
December 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On September 29, 1989, Administrative Law Judge
Marvin Roth issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Coca Cola Company and
Southern Services, Inc. filed answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The issue in this case is the appropriate legal stand-
ard to be applied when employees who regularly and
exclusively work on the premises of an employer other
than their own distribute union literature to fellow em-
ployees at the worksite at a time when they are on the
property pursuant to their employment relationship.
Contrary to the judge, we find that the standard set
forth in Republic Aviation Corp. v. NLRB, 324 U.S.
793 (1945), applies under such circumstances and that
the standard set forth in NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956), and defined by the Board
in Jean Country, 291 NLRB 11 (1988), does not
apply.
The judge found that Southern Services, Inc. (SSI)
employees, who regularly and exclusively work on
Coca Cola Company (Coke) property, were ‘‘non-
employees’’ for the purpose of evaluating their right to
distribute literature to fellow SSI employees on Coke
property. The judge applied the standard set forth in
Babcock & Wilcox and Jean Country and found that
the General Counsel had not satisfied his burden of
showing that the Union had no other reasonable means
of communicating its message except by access to
Coke property. Recognizing that under his decision
SSI employees were denied the right to distribute
union literature that is guaranteed to employees who
work on their own employer’s premises, the judge nev-
ertheless recommended that the complaint be dis-
missed.
The General Counsel and the Union except, arguing
that SSI and Coke violated Section 8(a)(1) of the Act
by prohibiting SSI employees from distributing union
literature at the employees’ Coke worksite. They allege
that SSI employees have been invited to enter Coke
property to work and that they should be regarded as
employees for the purpose of their right to distribute
union literature at that worksite. The General Counsel
and the Union contend that under the standard set forth
in Republic Aviation, supra, SSI employees may dis-
tribute union literature in nonworking areas on Coke
property during nonworking time. We find merit in the
General Counsel’s and the Union’s exceptions.
The factual basis of this case has been fully detailed
by the judge in his decision. Briefly restated, Coke has
a headquarters office located in a complex of buildings
which covers a whole block in Atlanta, Georgia. The
complex is surrounded by a fence. SSI is a subcon-
tractor to Coke and regularly performs janitorial work
at the Coke complex.1 The SSI employees work exclu-
sively at the Coke headquarters. Coke requires all SSI
employees to enter and exit the complex through the
Pine Street gate. All persons entering the Pine Street
gate entrance by foot or by car must show the Coke
guard, who is posted at the Pine Street gate guard-
house, a badge or receive permission to enter.2 The
SSI employees proceed through a service tunnel that
leads into the complex.3
Coke maintains a no-solicitation/no-distribution pol-
icy with respect to nonemployees4 at its Atlanta com-
plex.5 In 1987, the Union began an organizational
campaign among janitorial employees in the Atlanta
area. SSI employees and nonemployee union represent-
atives distributed literature and talked to SSI employ-
ees outside the Pine Street entrance. Coke did not at-
tempt to prevent such distribution.
Prior to reporting to work on April 14, 1989, Patri-
cia Copeland, an SSI employee who worked exclu-
sively at the Coke complex, and two other SSI em-
ployees distributed union leaflets to SSI employees
outside the Pine Street gate.6 Copeland and a fellow
SSI employee stopped distributing the leaflets in time
to report to work and walked to the Pine Street gate
with the union leaflets.
When Copeland passed through the security check-
point, the Coke security guard stopped Copeland and
told her that she did not want Copeland passing out
leaflets on Coke property. Copeland replied that she
1155SOUTHERN SERVICES
7 Republic Aviation, 324 U.S. 793 at 803.
8 Babcock & Wilcox, 351 U.S. at 113. In Babcock & Wilcox, the Court
struck a balance between Sec. 7 rights and an employer’s right to keep strang-
ers from entering its property. The Court held that the employer could prevent
‘‘nonemployee distribution of union literature [on the employer’s property] if
reasonable efforts by the union through other available channels of commu-
nication will enable it to reach the employees with its message.’’ Id. at 112.
9 Hudgens v. NLRB, 424 U.S. at 521 fn. 10.
10 Eastex, Inc. v. NLRB, 437 U.S. at 571.
11 Hudgens, supra, 424 U.S. at 521 fn. 10.
12 The judge relied on a footnote in Fabric Services, 190 NLRB 540 (1971),
in support of his conclusion that the standard set forth in Babcock & Wilcox
was appropriate. Fabric Services involved a situation in which a repairman
employed by Southern Bell was required to remove union insignia while work-
ing on the property of Fabric Services, a customer of Southern Bell. In finding
a violation, the judge, affirmed by the Board, applied that part of Republic
Aviation that deals with the wearing of union insignia rather than employee
solicitation, the other issue in Republic Aviation. In dicta, the judge stated that
Babcock & Wilcox would have been applicable if the repairman had attempted
to organize the employees of the property owner. Fabric Services, supra, 190
NLRB at 541 fn. 11. We find that the judge’s reliance in this case on the
Fabric Services dictum is misplaced, because the hypothetical situation re-
ferred to in the footnote is different from the circumstances here. SSI employ-
ees have not attempted to distribute literature to Coke employees.
The judge also found support for his position in certain language in Jean
Country, supra. However, the sentence quoted by the judge did not address
the question before us here; it was directed at the entirely different issue of
whether in applying the Babcock & Wilcox standard the factor of reasonable
alternative means must always be considered. The Board described its analysis
there as applicable to those persons whom the property owner ‘‘has not invited
to enter.’’ Jean Country, supra. In short, Jean Country did not address the dis-
tinction between the Republic Aviation and Babcock & Wilcox standards set
forth in the Supreme Court’s decisions in Hudgens and Eastex.
13 Although Coke is not the direct employer of the SSI employees, we find
that it violated the Act when it prohibited SSI employee Copeland from exer-
cising her Sec. 7 rights at her only place of employment. See, e.g., Fabric
Services, 190 NLRB at 541–542.
could do so on her own time. The security guard an-
swered that if Copeland and the other SSI employee
were to pass out leaflets on Coke property it would be
Coke’s problem. Copeland and the SSI employee dis-
tributed leaflets as they proceeded to the SSI sign-in
station at the Coke dock. At the dock, an SSI super-
visor told Copeland that she could not distribute the
literature because the Coke management would not
permit it.
The Supreme Court and the Board have adopted two
distinct analyses for determining whether solicitation
on an employer’s property is protected by Section 7 of
the Act. The Court has made a distinction between the
rules of law applicable to employees and those applica-
ble to nonemployees. Republic Aviation governs solici-
tation and distribution by employees properly on com-
pany property pursuant to the employment relationship.
In Republic Aviation, the Court found an employer
could not prohibit its employees from distributing
union literature in nonworking areas of its property
during nonworking time unless the employer could
show that the restriction was necessary to maintain
production or discipline.7
By contrast, Babcock & Wilcox, supra, and Jean
Country, supra, pertain to situations in which strangers
to the employer’s property trespass to facilitate activity
covered by Section 7 of the Act. In Babcock & Wilcox,
nonemployee organizers attempted to enter an employ-
er’s property to distribute union organizational lit-
erature. The Board applied the rule of Republic Avia-
tion, but the Court disagreed, holding that there is a
distinction ‘‘of substance’’ between ‘‘rules of law ap-
plicable to employees and those applicable to non-
employees.’’8
The Court emphasized the distinction between Re-
public Aviation and Babcock & Wilcox in Hudgens v.
NLRB, 424 U.S. 507 (1976). The Court stated that ‘‘[a]
wholly different balance was struck [in Republic Avia-
tion] when the organizational activity was carried on
by employees already rightfully on the employer’s
property, since the employer’s management interests
rather than his property interests were there in-
volved.’’9
Two years later, in Eastex, Inc. v. NLRB, 437 U.S.
556 (1978), the Court described the difference between
the two cases in the following terms: ‘‘the non-
employees in Babcock & Wilcox sought to trespass on
the employer’s property, whereas the employees in Re-
public Aviation did not.’’10 In Eastex, the Court also
reiterated the distinction set forth in Hudgens that is
quoted above.
Applying the distinction set forth by the Supreme
Court, we believe that the instant case falls under the
Republic Aviation standard rather than the Babcock &
Wilcox standard. SSI is a cleaning contractor retained
to perform janitorial functions for Coke’s benefit at its
headquarters, and union solicitor Copeland is an SSI
employee working on a regular and exclusive basis on
Coke’s premises. Thus Copeland, like her fellow SSI
employees, has been invited to work at the Coke site
on a continuing basis. On April 14, 1989, Copeland
did not seek to ‘‘trespass’’ on Coke’s property; she
was reporting to work pursuant to her employment re-
lationship. Thus, she was ‘‘already rightfully on
[Coke’s] property’’11 when the Respondents prohibited
her from distributing union literature. She was a
‘‘stranger’’ neither to the property nor to the SSI em-
ployees working on the property whom she was solic-
iting. In these circumstances, it is reasonable to require
Coke, as well as SSI, to treat SSI employees engaged
in organizing activities among themselves under the
Republic Aviation standard.12
Applying Republic Aviation to the instant case, we
find that the Respondents have not shown that the SSI
employees’ distribution of union literature to fellow
SSI employees during nonworking time in nonworking
areas of the Coke worksite would interfere with main-
taining production or discipline at the Coke worksite.
Accordingly, we find that Coke and SSI violated Sec-
tion 8(a)(1) of the Act by refusing to allow Copeland
to distribute union literature in nonworking areas of
Coke property during nonworking time.13
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’ 15 See fn. 14, supra.
CONCLUSION OF LAW
By refusing to allow Patricia Copeland to distribute
union leaflets to fellow SSI employees in nonworking
areas of Coke property during nonworking time, the
Respondents have violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
A. The Respondent, The Coca Cola Company, At-
lanta, Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to allow SSI employees working on its
premises to distribute union leaflets to fellow SSI em-
ployees in nonworking areas of Coke property during
nonworking time.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Atlanta, Georgia facility copies of the
attached notice marked ‘‘Appendix A.’’14 Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The Respondent, Southern Services, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to allow its employees working on
Coke property to distribute union leaflets to fellow
Southern Services, Inc. employees in nonworking areas
of Coke property during nonworking time.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Atlanta, Georgia facilities copies of
the attached notice marked ‘‘Appendix B.’’15 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 10, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, concurring.
I agree with my colleagues that the Respondents
violated Section 8(a)(1) of the Act by preventing
Southern Services employee Patricia Copeland from
distributing union leaflets during nonworking time in
nonworking areas of Coca Cola headquarters, where
she was employed. I write separately to emphasize the
importance to my decision of the particular cir-
cumstances in which Copeland found herself.
Coca Cola had a facially valid rule that prohibited
‘‘[p]ersons who are not employees of the Company’’
from going on company property ‘‘either to solicit em-
ployees or to distribute material to Company employ-
ees.’’ See NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 112 (1956). Copeland was not ‘‘an employee of
the Company’’ but of the cleaning subcontractor. Be-
cause she was ‘‘distribut[ing] material to Company
employees’’ on company property, Coca Cola enforced
its rule against her.
Copeland, however, was not a stranger seeking to
use the Company’s premises. Her employer, SSI, had
a contract with Coca Cola to perform janitorial work,
and Copeland was there to perform that work. Signifi-
cantly, Copeland had no other workplace where she
could reach her fellow SSI employees with her mes-
sage. She was employed by SSI only for the Coca
Cola headquarters’ job. In these particular cir-
cumstances, and despite what I find to be Coca Cola’s
strong property interests, I am willing to apply the Re-
public Aviation standard in this case. See Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945). I
would be cautious, however, about extending Republic
Aviation to other situations involving union solicitation
or distribution of union literature by a subcontractor’s
employees.
1157SOUTHERN SERVICES
1 All dates herein are for 1989 unless othewise indicated.
On the facts of this case, and because the Respond-
ents have not shown that preventing Copeland’s dis-
tribution of union literature was necessary to maintain
production and discipline, I concur in the majority’s
8(a)(1) finding.
APPENDIX A
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to allow Southern Services,
Inc. employees working on Coca Cola Company prop-
erty to distribute union leaflets to other Southern Serv-
ices, Inc. employees in nonworking areas of Coca Cola
Company property during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
THE COCA COLA COMPANY
APPENDIX B
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to allow our employees work-
ing on Coca Cola Company property to distribute
union leaflets to fellow Southern Services, Inc. em-
ployees in nonworking areas of Coca Cola Company
property during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
SOUTHERN SERVICES, INC.
Susan Pease Langford, Esq., for the General Counsel.
Edward Katze, Esq., of Atlanta, Georgia, for Respondent
Southern Services, Inc.
Joseph H. McLure Jr., Esq., and William J. Bernstein, Esq.,
of Atlanta, Georgia, for Respondent Coca Cola.
Robert S. Sarason, Esq., of Atlanta, Georgia, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Atlanta, Georgia, on June 28,
1989.1 The charges were filed by Service Employees Inter-
national Union, AFL–CIO, Local 679 (the Union), on March
24 and April 18. The consolidated complaints, which issued
on May 16 and 17, allege in sum that Southern Services, Inc.
and The Coca Cola Company (respectively SSI and Coca
Cola and collectively Respondents) violated Section 8(a)(1)
of the Act. The gravamen of the complaints is that Respond-
ents allegedly unlawfully told SSI employees that they could
not distribute union leaflets on Coca Cola property. Respond-
ents’ answers deny commission of the alleged unfair labor
practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel,
SSI, and Coca Cola 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 submitted by the
parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
Coca Cola, a Delaware corporation with an office and
place of business in Atlanta, Georgia, is engaged in the busi-
ness of manufacturing, marketing, and distributing soft drink
concentrates, soft drink syrups, and citrus and fruit juice
products. In the operation of its business, Coca Cola annually
ships goods valued in excess of $50,000 directly from its At-
lanta, Georgia operations to customers located outside of
Georgia. SSI, a Georgia corporation with an office and place
of business in Atlanta, provides cleaning services for com-
mercial customers. In the operation of its business, SSI annu-
ally purchases and receives and sells and ships goods valued
in excess of $50,000 directly from suppliers or to customers
located outside of Georgia. I find as admitted by the respec-
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I credit the testimony of Respondents’ witnesses in this regard. Former SSI
employee Patricia Copeland, who was General Counsel’s only witness, testi-
fied that most SSI employees drive to work. She did not explain how she ar-
rived at this estimate. Copeland herself walked to work. The Coca Cola assist-
ant vice president and director of employee and industrial relations, Michael
Semrau, Coca Coca security officer, Rachel Reed, who was posted at the Pine
Street entrance; and SSI project manager, McCauley, testified in sum that on
the basis of their personal observation (and in the case of Semrau, also on
the basis of the number of authorized vehicles), that only about one-third of
the SSI personnel drove to work.
tive Respondents, that each is an employer engaged in com-
merce 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. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Coca Cola’s world headquarters are located in a complex
of buildings covering a tract of land about the size of a city
block, approximately 1 mile from downtown Atlanta. The
complex includes the 26-story North Avenue tower, the 20-
story Coca Cola USA building, an 11-story technical center,
a multistory engineering development building, a flavor man-
ufacturing building, and 3 parking garages each with 7 lev-
els. The complex is surrounded by a fence, except for the
main, or ‘‘plaza’’ entrance. There are three other entrances
located respectively on Marietta, Luckie, and Pine Streets.
The complex is surrounded by double width public side-
walks. Some 3000 Coca Cola personnel regularly work in the
complex. Additionally, some 1400 persons employed by con-
tractors or subcontractors, regularly perform services at the
complex. Including visitors and deliveries, an average of
5500 persons and 4000 to 5000 vehicles are daily on the
premises.
SSI performs cleaning services at the complex pursuant to
a contract with Carter and Associates, which has a contract
with Coca Cola, i.e., SSI is a subcontractor to Coca Cola.
SSI has some 165 personnel who work exclusively on the
Coca Cola premises, including a supervisory staff headed by
Project Manager Waymon McCauley. The complaint does
not allege, nor does General Counsel contend that Coca Cola
is a joint employer of SSI’s employees. SSI’s employees are
not represented by a labor organization. Some SSI employees
work an 8-hour shift. However most work a 5-day week
from 5:30 to 9:30 p.m., without any formal breaks. SSI em-
ployees are required by Coca Cola to enter and exit the com-
plex by the Pine Street gate, which is located on the south
side of the complex. SSI employees have badges which iden-
tify them as contractor or subcontractor employees who work
on the premises (Coca Cola employees have a distinctly dif-
ferent badge). All persons entering the complex must show
a badge or otherwise obtain permission to enter. SSI employ-
ees wear a distinct smock, although they may change on the
premises. As they enter the complex, whether by car or on
foot, SSI employees show their badge to a Coca Cola guard
who is posted at a guard house at the Pine Street gate. They
then proceed through a service tunnel which leads into the
complex. Those who drive must park in an open ground
level lot adjacent to the engineering development building.
They then walk through the tunnel. The Pine Street entrance
is also used by other service personnel, commercial vehicles,
and Coca Cola transport vehicles. The open lot is used, in
addition to SSI employees, by engineering development per-
sonnel, contractors, some service vehicles, and oversize vehi-
cles. The lot is about 200 feet from the Pine Street entrance.
About one-third of the SSI employees drive to and from
work, and the others walk.2 Most SSI employees usually ar-
rive at work between 5 and 5:30 p.m., and most Coca Cola
employees leave work between 5 and 6 p.m. Consequently
there is usually heavy traffic at the Pine Street gate during
this period of time, and traffic may be backed up in either
or both directions.
Beginning in October 1987 the Union, under the slogan of
‘‘Janitors For Justice,’’ commenced an organizational cam-
paign among janitorial employees in the Atlanta area. The
Union distributed literature at various locations, including
downtown Atlanta. SSI employees and nonemployee union
representatives, including the Union’s attorney, distributed
literature and talked to SSI employees at the Pine Street en-
trance, outside the fenced area, both on public and Coca Cola
property. (The property line begins about two car lengths be-
fore the gate, and therefore some of the roadway and side-
walk on both sides are on Coca Cola property.) Coca Cola
made no effort to prevent such distribution. Assistant Vice
President Semrau testified that Coca Cola has never prohib-
ited distribution of literature outside the gate. However Coca
Cola prohibits distribution of literature by non-Coca Cola
employees within the complex. Coca Cola maintains a no-
solicitation/distribution policy which provides as follows with
respect to nonemployees:
Persons who are not employees of the Company are not
permitted on Company property either to solicit em-
ployees or to distribute material to Company employees
at any time, and will be refused access for any such
purpose.
Patricia Copeland, who was employed by SSI and worked at
the Coca Cola complex from April 1987 until early June
1989 testified in sum as follows: On April 14, before report-
ing to work, she and two other persons distributed Janitors
for Justice literature outside the Pine Street gate. She and one
of the others, who was also an SSI employee, then proceeded
to enter the complex, carrying some of the literature with
them. Project Manager McCauley told Copeland that Security
Officer Reed wanted to see her. Reed told Copeland that she
didn’t want Copeland passing out leaflets on Coke property.
Copeland answered that she could do so on her own time.
Reed responded that if they were to pass out leaflets on Coke
property it would be Coke’s problem. The two SSI employ-
ees proceeded into the complex, distributing literature as they
went. SSI Supervisor Odell Richardson stopped them, saying
that they couldn’t distribute the literature because Coke man-
agement wouldn’t permit it. Copeland insisted that she could
distribute the literature on her own time. Security Officer
Reed testified that as Copeland entered the complex with a
stack of leaflets, she told Copeland that she was now on
company property and was no longer allowed to hand out or
solicit her flyers, and that Copeland answered that she was
1159SOUTHERN SERVICES
3 Sylvania Electric Products, 174 NLRB 1067 (1969), dealt with the validity
of Servomation’s ‘‘neutrality role,’’ which required its employees to maintain
neutrality with respect to union activity among employees of its customers, in-
cluding Sylvania, when they workerd on the customers’ premises. The Board
found that Servomation could lawfully enforce its rule. The case did not in-
volve organizational activity among Servomation’s own employees on
Sylvania’s premises.
not going to pass out anymore anyway. Supervisor Richard-
son was not presented as a witness in this proceeding. SSI
Project Manager McCauley testified that he would enforce
Coca Cola’s rule. I credit Reed, who generally impressed me
as a credible witness who had no particular axe to grind in
this proceeding. However I credit Copeland’s uncontroverted
testimony concerning her exchange with Richardson. I find
that notwithstanding her assurance to Reed, Copeland at-
tempted to distribute union literature within the complex, but
was stopped by Richardson.
B. Analysis and Concluding Findings
An employer rule which prohibits employees from engag-
ing in union solicitation during nonworking time, or distribu-
tion of union literature during nonwork time and in nonwork
areas, is presumptively unlawful 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 (1974). See also Tri-County
Medical Center, 222 NLRB 1089 (1976), cited with approval
in NLRB v. Pizza Crust Co., 862 F.2d 49 (3d Cir. 1988). A
different standard applies to nonemployee union organizers.
‘‘An employer may validly post his property against non-em-
ployee distribution of union literature if reasonable efforts by
the union through other available channels of communication
will enable it to reach the employees with its message and
if the employer’s notice or order does not discriminate
against the union by allowing other distribution.’’ NLRB v.
Babcock & Wilcox Co., 351 U.S. 105, 112–113 (1956). In
the present case, General Counsel contends that the employ-
ees of SSI who worked on Coca Cola’s premises enjoyed the
status of ‘‘employees’’ for the purpose of distribution rights,
and therefore that Respondents violated Section 8(a)(1) by
prohibiting them from distributing union literature on Coca
Cola’s parking lot during their nonworking time. (The com-
plaint does not allege that Coca Cola unlawfully promulgated
or maintained its solicitation/distribution policy.) This case
presents the question of whether employees who report to
and regularly and exclusively work on the premises of an
employer other than their own, are ‘‘employees’’ or ‘‘non-
employees’’ for the purpose of their right if any to distribute
union literature on the premises where they work. This is the
principal, and as will be discussed, decisive issue in this
case. The parties have not cited to me, nor have I been able
to locate, any Board decision which directly addresses this
question in its factual context.3 However, related Board deci-
sions make clear the Board’s view with respect to this ques-
tion. In Jean Country, 291 NLRB 11, 12 (1988), the Board
defined the Babcock & Wilcox rule in the following lan-
guage:
Babcock thus holds that where persons other than em-
ployees of an employer that owns or controls the prop-
erty in question are concerned, ‘‘alternative means’’
must always be considered: a property owner who has
closed his property to nonemployee communications, on
a nondiscriminatory basis, cannot be required to grant
access where reasonable alternative means exist, but in
the absence of such means the property right must yield
to the extent necessary to permit the organizers to com-
municate with the employees. [Emphasis added in part.]
In essence, the Board said that where the persons seeking to
distribute literature are not employees of the employer who
owns or controls the property in question, their status is that
of nonemployees, and therefore, Babcock & Wilcox governs.
In Jean Country, the Board reconsidered and revised its
previously stated method of applying Babcock & Wilcox, as
set forth in Fairmont Hotel, 282 NLRB 139 (1986). I do not
believe that the Board was careless or inadvertent in defining
the scope of cases covered by Babcock & Wilcox. Moreover,
in prior cases the Board has used similar language in defin-
ing the distinction between employee and nonemployee dis-
tribution. In Fabric Services, 190 NLRB 540 (1971), on
which General Counsel principally relies, the Board dealt
with the question of whether Fabric Services and Southern
Bell violated Section 8(a)(1) by requiring Smoak, Southern
Bell’s installer repairman, to remove his union pocket pro-
tector while performing work at Fabric Services’ plant. The
Board held that the employers acted unlawfully. However
Trial Examiner Arthur Leff added as follows:
My view of this case would have been different had
it involved a prohibition against employee solicitation
or other organizational activity, instead of a prohibition
against the wearing of union insignia. As a corollary
to its right to bar outside organizers from coming on
its property (N.L.R.B. v. Babcock & Wilcox Co., 351
U.S. 105), Fabric Services could have legitimately in-
sisted, without any showing of special circumstances,
that Smoak as an invitee on its property for a limited
purpose confine himself to the purpose for which he
had been allowed to enter its premises and refrain from
attempts to organize its employees. Correspondingly,
Southern Bell, whether or not requested by Fabric Serv-
ices to do so, could have legitimately required Smoak
to refrain from union solicitation or organizational ac-
tivities among Fabric Services’ employees while on the
latter’s property. See Sylvania Electric Products Co.,
174 NLRB No. 9. This case is distinguishable from Syl-
vania because it is concerned only with the question of
whether Smoak’s right to wear a union insignia while
working was unlawfully infringed, there being no claim
that his wearing of the insignia was in any way associ-
ated with any attempt on his part to organize Fabric
Services’ employees. As emphasized above, the wear-
ing of a union insignia stands in a different category
than employee solicitation. It is regarded as a form of
employee self-expression protected by Sec. 7, rather
than a form of employee solicitation, and under the law
as developed is lawfully subject to restrictive regulation
only when compelling special circumstances are shown
to require it in the interest of maintaining employee dis-
cipline or production. [Emphasis added.]
Judge Leff did not use words carelessly. The Board could
have disavowed the above language as dicta. However the
Board did not. It is evident that the Board concurred in
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judge Leff’s analysis. In Stoddard-Quick Mfg. Co., 138
NLRB 615, 616 (1962), as was pointed out in Sylvania Elec-
tric Products, supra, 174 NLRB at 1070, the Board described
the rights of employee union solicitation and distribution of
union literature as defined in Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801–803 (1945), and Peyton Packing
Co., 49 NLRB 828, 843–844 (1943), as applying ‘‘when
these activities occur on property subject to the employer’s
ownership and dominion.’’ Therefore, other cases relied on
by General Counsel (Scott Hudgens, 230 NLRB 414 (1977),
and Peddie Buildings, 203 NLRB 265 (1973), revd. sub.
nom. NLRB v. Viseglia, 498 F.2d 43 (3d Cir. 1974)), are not
in point on this issue, because in each case the employer of
the employees involved was the lessee and occupant of the
premises in question. In the present case, SSI is simply a
business invitee on Coca Cola’s premises. I recognize that as
a consequence of this distinction, employees who do not
work on or report to the premises of their employer, but
work on the premises of another employer, may enjoy lesser
rights of distribution and solicitation than those who do work
on their employer’s premises. However a line of Board deci-
sions has made clear the distinction.
As the present case is governed by the standards of Bab-
cock & Wilcox, it follows that in light of the facts the com-
plaints should be dismissed. General Counsel does not have
a fallback position. General Counsel and the Union contend
that alternative means of communication are irrelevant in this
case, and the Union objected to Respondent’s introduction of
evidence on this matter. In cases involving nonemployee dis-
tribution, General Counsel has the ‘‘heavy’’ burden of show-
ing that the Union has no other reasonable means of commu-
nicating its message except by access to the employer’s
property, or that the employer’s access rules discriminate
against union solicitation. Sabine Towing Co. v. NLRB, 599
F.2d 663 (5th Cir. 1979). Here, Respondents took the initia-
tive in presenting evidence on these matters. Both sides in-
voke substantial rights. The Union has a right to organize
SSI’s employees, and Coca Cola has a substantial property
right, particularly in view of the fact that its complex is not
open to the general public. See Jean Country. The Union
plainly has alternative means of communicating its message
to SSI’s employees, without distributing literature within the
Coca Cola complex, and has made use of such means. The
Union can and has distributed its literature at the entrance to
Coca Cola’s complex, including the sidewalks and roadway
which are on public and Coca Cola property. The Union has
even posted its literature on Coca Cola’s fence. The Union
has also distributed its literature and otherwise communicated
with SSI employees at other locations. Coca Cola and SSI
have not prohibited SSI employees from discussing union ac-
tivity on their free time, either within or outside the prem-
ises. Rather Coca Cola has only prohibited distribution of lit-
erature within the complex. Therefore I am recommending
that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce with-
in 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. Respondents did not violate the Act as alleged in the
complaint.
[Recommended Order omitted from publication.]