The Times Publishing Co.

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 207 (N.L.R.B. 1977)

THE TIMES PUBLISHING COMPANY
The Times Publishing Company and Graphic Arts
International Union. Case 12-CA-7364
August 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On May 5, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, except as modified herein, and to adopt his
recommended Order.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by promul-
gating and maintaining overly broad and ambiguous
no-solicitation and no-distribution rules. The rules,
in their final form, are set forth below. Those posted
on the main bulletin board at the printing plant read:
THE CONDUCTING OF NON-COMPANY BUSINESS,
SUCH AS CANVASSING, COLLECTION OF FUNDS,
PLEDGES, CIRCULATION OF PETITIONS,
SOLICITATION OF MEMBERSHIPS OR ANY OTHER
SIMILAR TYPES OF ACTIVITY ARE NOT PERMITTED
DURING THE WORKING TIME OF ANY STAFFER.
FOR SAFETY AND ACCIDENT PREVENTION REASONS,
THE DISTRIBUTION OF NON-TIMES PUBLISHING
COMPANY LITERATURE SUCH AS PAMPHLETS,
LEAFLETS, LETTERS OR OTHER PRINTED MATERIAL IS
NOT PERMITTED.
Those posted at the downtown location read:
THE CONDUCTING OF NON-COMPANY BUSINESS,
SUCH AS CONVASSING, COLLECTION OF FUNDS,
PLEDGES, CIRCULATION OF PETITIONS,
SOLICITATION OF MEMBERSHIPS OR ANY OTHER
SIMILAR TYPES OF ACTIVITY ARE NOT PERMITTED
DURING THE WORKING TIME OF ANY STAFFER, OR
AT ANY TIME IN PUBLIC AREAS OF THE BUILDING,
SUCH AS LOBBIES AND ELEVATORS.
Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the brief adequately present the issues and
the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
231 NLRB No. 44
THE DISTRIBUTION OF NON-TIMES PUBLISHING
COMPANY LITERATURE SUCH AS LEAFLETS, LETTERS
OR OTHER WRITTEN MATERIAL BY ANY STAFFER IS
NOT PERMITTED DURING WORKING TIME, IN
WORKING AREAS OR IN PUBLIC AREAS WITHIN THE
BUILDING.
In concluding that the above rules are invalid, the
Administrative Law Judge found the phrases in the
rules which prohibit solicitation and distribution in
"public areas" at the downtown location, solicitation
"during the working time of any staffer" at both
locations, and distribution at the printing plant "for
safety and accident prevention reasons," to be overly
broad and ambiguous. We agree with the Adminis-
trative Law Judge's determination that the above
rules are invalid.
Although the Administrative Law Judge found all
Respondent's rules to be invalid generally, he made a
further finding that Respondent's downtown lobby is
a work area, and that the no-distribution rule posted
there is valid to the extent that it prohibits distribu-
tion in that lobby. Respondent excepts to the
Administrative Law Judge's determination that the
downtown lobby is not a retail operation where
solicitation and distribution may be lawfully prohi-
bited.
At Respondent's downtown location, there is a
receptionist in the lobby to direct members of the
public, and there is an adtaker and cashier window
for the convenience of those individuals who would
rather place advertisements in person. Among the
items available to the public in the lobby are back
issues of the newspaper and special supplements,
flags, almanacs, and other related materials.
The Administrative Law Judge made a finding as
to the status of the lobby area, concluding that it is
not a retail operation, but is a work area where
distribution may be prohibited but where solicitation
is lawful. By excepting to the Administrative Law
Judge's failure to treat Respondent's downtown
lobby as a retail store, Respondent has placed the
issue of the status of the downtown lobby before the
Board. Accordingly, we have reviewed the record
and the positions of the parties concerning the proper
scope of organizational activity in this area.
The Board has consistently held that, pursuant to a
valid rule, distribution may be prohibited from
working areas because it can interfere with the
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer's interest in order and discipline at employ-
ee work stations.3 After examination of the record,
however, we cannot agree with the Administrative
Law Judge that the lobby of Respondent's down-
town location is a working area. The fact that
Respondent employs a receptionist to provide
information, that it provides some public service
items and documents such as back issues of the
newspaper and special printings, and that it main-
tains a cashier window where classified ads may be
paid for does not support the conclusion that the
lobby is a working area where all union distribution
may be prohibited. In light of Respondent's no-
solicitation rule posted at the downtown office which
lists "lobbies and elevators" as "public areas" (the
previous rule included "lobbies, elevators, lunch-
rooms and snackbars" as "public areas"), we
conclude that even Respondent did not consider the
lobby to be a work area. Only through its argument
claiming the lobby to be similar to a retail operation
where customer contact would be seriously disrupted
by solicitation and distribution did Respondent
suggest its work areas status.
Respondent's downtown lobby is analogous to the
public areas in St. John's Hospital and School of
Nursing, Inc.,4 where patients and visitors shared
access with employees. We decided in that case that
solicitation and distribution may be prohibited in
patient care areas, but not in common areas such as
lounges and cafeterias. In making that decision, we
concluded that the rights of the employees to solicit
and distribute literature in public areas of a hospital
outweighed the interests of patients and visitors in
those areas to be shielded from all organizational
activity. In our view, the same principle applies
herein.
Even if we were to conclude, however, that the
downtown lobby is a working area, we would still
find that Respondent's no-distribution rule posted in
the downtown location is invalid "to the extent that
it prohibits distribution in that area" because the rule
itself is invalid for all purposes. In disagreeing with
the finding of the Administrative Law Judge as to the
applicability of the rule to one specific area, we note
that the Board has consistently held that when an
employer promulgates and maintains overly broad
no-solicitation and no-distribution rules those rules
are invalid for all purposes and not valid in part as
they apply to a given area.
Accordingly, we reverse that portion of the
Administrative Law Judge's Decision which states
that Respondent's downtown lobby is a working area
and that the no-distribution rule at the downtown
location is valid to the extent that it applies to the
lobby area.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Times
Publishing Company, St. Petersburg, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
3 Stoddard-Quirk Manufacturing Co., 138 NLRB 615(1%962).
4 222 NLRB 1150 (1976).
DECISION
STATEMENT OF THE CASE
MICHAEL 0. MILLER, Administrative Law Judge: This
case was heard on January 25 and January 26, 1977, in
Tampa, Florida, pursuant to a charge filed on September
27, 1976 (all dates hereinafter are 1976 unless otherwise
specified), and a complaint which issued on November 24.
The complaint alleged that Respondent violated Section
8(a)(I) of the National Labor Relations Act (herein the
Act) by promulgating, maintaining, and giving effect to
invalid no-solicitation and no-distribution rules and by
interrogating employees concerning their union activity.
Respondent admitted certain jurisdictional facts but
denied the commission of any unfair labor practices.
At the hearing, all parties were represented and were
given full opportunity to examine and cross-examine
witnesses, to argue orally, and to file briefs. Upon the
entire record in the case, including the briefs and oral
arguments, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS AND THE CHARGING
PARTY'S LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a Florida corporation engaged in the
publication of newspapers in St. Petersburg, Florida.
During the past 12 months, Respondent's gross revenues
from its business operation exceeded $500,000 and during
that same period of time it published nationally syndicated
columns and advertisements for nationally sold products.
The complaint alleged, Respondent admitted, and I find
and conclude, that at all times material herein, Respondent
has been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The complaint alleged, Respondent admitted, and I find
and conclude, that at all times material herein, the
Charging Party has been a labor organization within the
meaning of Section 2(5) of the Act.
208
THE TIMES PUBLISHING COMPANY
11. THE UNFAIR LABOR PRACTICES
A. The No-Solicitation and No-Distribution Rules
1. The physical environment
Respondent maintains two major locations which are
involved herein. Its downtown location, which houses its
business offices, consists of two adjacent and connected
buildings. Each building has a lobby area and elevators.
Employees may enter through the main lobby but primari-
ly use an entry at the back of the building which leads to a
hallway on which there are offices. The lobby in the main
building is open to and is frequented by the public.
Classified advertisements may be purchased and paid for
in the lobby and approximately 400 such advertisements
are sold at that point each week. This accounts for only a
small percentage of Respondent's advertising revenue. Also
sold are such items as reams of newsprint, flags, almanacs,
reprints of books and magazines issued by Respondent,
back and current issues of the newspaper, and photo-
graphs. Additionally, the public is invited into the lobby to
see back issues of the paper, to bring in news items such as
announcements of weddings and other events, to begin
tours of the building, and to receive various publications
which Respondent distributes as a public service. It was
estimated that approximately 250 to 300 members of the
public enter the lobby between 8 a.m. and 5 p.m. each day.
A receptionist is stationed in that lobby to assist those
entering by receiving information from them as to news
events, by giving them copies of the free distributions, and
by directing them about the building. Also located on the
first floor of the main building are hallways and offices
including the personnel office, which may be entered from
the lobby, and the credit union. On the upper floors are
offices, an auditorium, a conference room, and a cafeteria,
which is on the sixth floor of the adjoining building. Some
portion of that building is also occupied by Respondent's
tenants who, along with employees, use the lobby and
elevators in that building.
Respondent's 34th Street location houses its printing
plant. It is a three-story structure surrounded on three sides
by an enclosed parking lot. Within the plant building, in
addition to the printing facilities, are: a circulation
department, a warehouse, two lobby areas, and employee
snackbars or cafeterias on the first and second floors. The
printing plant is in operation 24 hours per day.
2. Institution of the rules
For a number of years, Respondent maintained a no-
solicitation rule which was published in a guide given new
employees during their orientation.' In April, the Union
commenced an organizing campaign. Respondent conclud-
ed, as a result of consultations with its attorneys, that the
no-solicitation rule "was not as clear as it should be." No
action was taken, however, because of the pending union
' That rule stated: "S9liciting on Company premises, whether by
personal contact, bulletin boards, or any other manner, for any purposes,
not specifically authorized by management, is prohibited. This prohibition
applies to staffers as well as nonstaffers." While some supervisors had some
divergent understandings as to the limitations imposed by this rule, their
testimony indicated that this rule was not enforced as written. Some
activity. That activity ceased in May and Respondent was
promptly so notified by letter from the Union and its
organizing committee.
In June, Respondent posted new no-solicitation and no-
distribution rules, which, it claimed, were intended to
clarify the prior rule. Posted at the downtown location was
the following: 2
NOTICE TO STAFFERS [Employees]
SOLICITATION IS NOT PERMITTED BY ANY STAFFER
DURING THE WORKING TIME OF THE STAFFER DOING THE
SOLICITING OR BEING SOLICITED OR AT ANY TIME IN
PUBLIC AREAS.
DISTRIBUTION OF PRINTED MATERIALS WILL NOT BE
PERMITTED DURING WORKING TIME OR IN WORKING
AREAS OR IN PUBLIC AREAS.
Posted at the printing plant was:
SOLICITATION IS NOT PERMITTED BY ANY STAFFER
DURING THE WORKING TIME OF THE STAFFER DOING THE
SOLICITING OR BEING SOLICITED.
DISTRIBUTION OF PRINTED MATERIALS WILL NOT BE
PERMITTED FOR SAFETY REASONS.
The foregoing rules were modified in July, at the
direction of Respondent's president and editor, who felt
that the language used was too ambiguous, stilted, and out
of keeping with the literary style Respondent used in
communicating with its staff. The new rules, posted at the
downtown location, read:
THE CONDUCTING OF NON-COMPANY BUSINESS, SUCH AS
CANVASSING, COLLECTION OF FUNDS, PLEDGES,
CIRCULATION OF PETITIONS, SOLICITATION OF
MEMBERSHIPS OR ANY OTHER SIMILAR TYPES OF ACTIVITY
ARE NOT PERMITTED DURING THE WORKING TIME OF ANY
STAFFERS, OR AT ANY TIME IN PUBLIC AREAS WITHIN THE
BUILDING, SUCH AS LOBBIES, ELEVATORS, LUNCHROOMS
OR SNACKBARS.
THE DISTRIBUTION OF NON-TIMES PUBLISHING COMPANY
LITERATURE SUCH AS LEAFLETS, LETTERS OR OTHER
WRITTEN MATERIAL BY ANY STAFFER IS NOT PERMITTED
DURING WORKING TIME, IN WORKING AREAS OR IN
PUBLIC AREAS WITHIN THE BUILDING.
Posted on the main bulletin board at the printing plant
was:
THE CONDUCTING OF NON-COMPANY BUSINESS, SUCH AS
CANVASSING, COLLECTION OF FUNDS, PLEDGES,
CIRCULATION OF PETITIONS, SOICITATION OF
MEMBERSHIPS OR ANY OTHER SIMILAR TYPES OF ACTIVITY
solicitation was permitted on nonwork time and distributions were
permitted in nonwork areas. The rule, however, was not revoked.
2 The rules as quoted herein omit Respondent's prohibitions on
solicitation and distribution by nonemployees, which were not contended to
be invalid.
209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARE NOT PERMITTED DURING THE WORKING TIME OF ANY
STAFFER.
FOR SAFETY AND ACCIDENT PREVENTION REASONS, THE
DISTRIBUTION OF NON-TIMES PUBLISHING COMPANY
LITERATURE SUCH AS PAMPHLETS, LEAFLETS, LETTERS OR
OTHER PRINTED MATERIALS IS NOT PERMITTED.
This rule was not posted in the cafeteria at the plant,
allegedly because that was deemed a nonwork area.
Subsequently, Respondent's attorneys suggested addi-
tional changes in the rules as they were posted in the
downtown location. In the first week of September, the
rules which had been posted in July were removed and the
following was posted:
THE CONDUCTING OF NON-COMPANY BUSINESS, SUCH AS
CANVASSING, COLLECTION OF FUNDS, PLEDGES,
CIRCULATION OF PETITIONS, SOLICITATION OF
MEMBERSHIPS OR ANY OTHER SIMILAR TYPES OF ACTIVITY
ARE NOT PERMITTED DURING THE WORKING TIME OF ANY
STAFFER, OR AT ANY TIME IN PUBLIC AREAS OF THE
BUILDING, SUCH AS LOBBIES AND ELEVATORS.
THE DISTRIBUTION OF NON-TIMES PUBLISHING COMPANY
LITERATURE SUCH AS LEAFLETS, LETTERS OR OTHER
WRITTEN MATERIAL BY ANY STAFFER IS NOT PERMITTED
DURING WORKING TIME, IN WORKING AREAS OR IN
PUBLIC AREAS WITHIN THE BUILDING.
The employees were given no explanation for the modifica-
tion of the rules; neither were they told that the lunch-
rooms and snackbars, previously designated as public areas
off-limits to solicitation, were no longer so considered.
The rules for the printing plant remained as posted in
July. Both of the last quoted sets of rules remained in effect
at least until the date of this hearing.
According to the testimony of Respondent's personnel
manager, Allen Dwyer, no employee has ever been
discharged or otherwise disciplined for violation of its no-
solicitation and no-distribution rules. Employees Spearman
and Dunson testified that, at least where they work on the
press deck, employees engage in all manner of conversa-
tions while working. These discussions include talk about
the Union. Spearman acknowledged that there was no rule
prohibiting such conversations, "as long as it doesn't
interfere with what you are doing." Dunson and Snowden
testified to distributing handbills in the parking lots, break
rooms, and lunchrooms without supervisory interference.
Testimony of employees and some supervisors indicates
that there has been some minor gambling activity among
the employees, in the form of football and paycheck pools.
The record would seem to indicate that this activity came
to a halt at about the time the no-solicitation and no-
distribution rules were posted.
:' Respondent's contention that its rules "[r]easonably permit the staffers
to communicate with one another; and, therefore, the Board's mechanistic
approach, regarding where solicitation and distribution may be conducted,
must be reconsidered and modified accordingly" must be rejected. Where,
as here, the course set by the Board is clear, it is not the Administrative Law
3. Discussions and conclusions
The Board's policy in regard to no-solicitation and no-
distribution rules was enunciated in Stoddard-Quirk Manu-
facturing Co., 138 NLRB 615 (1962), and was recently
restated in St. John's Hospital and School of Nursing, Inc.,
222 NLRB 1150 (1976), as follows:
In general, no-solicitation rules are presumed valid if
applicable only to solicitation during working time, but
are presumed unlawful if they extend to solicitation
during nonworking time irrespective of whether the
solicitation occurs in a work or nonwork area. Rules
prohibiting distribution of literature are presumed valid
unless they extend to activities during nonworking time
and in nonworking areas. In order to justify the
existence of a rule which is on its face presumptively
unlawful, an employer must present sufficient justifica-
tion to warrant the further curtailment of employee
rights.
It is in this context that Respondent's rules must be
examined. 3
Initially, it must be noted that while some supervisors
and employees may have applied the pre-May 1976
solicitation rule in a manner consistent with Board law and
policy, that rule was unlawfully broad. It prohibited all
unauthorized solicitation on company premises. FMC
Corporation, 211 NLRB 770 (1974). Moreover, contrary to
Respondent's assertions, that rule was not made valid by
communications to employees that the rule was to be
applied only in a lawful manner. Thus, Assistant Press
Foreman Thonen testified that the rule, as written, was
generally what he had been told about solicitation. He
further testified that he was told: "You can't solicit on the
press deck... ."
It is clear that the no-distribution aspect of the new rules
is unduly broad. The rule posted at the printing plant
barred all distributions on company premises, because of
an expressed concern for "safety reasons" or "safety and
accident prevention reasons." No evidence was adduced to
establish that there was a necessity for such a rule which
would overcome its presumptive invalidity. The mere
assertion that a broad no-distribution rule is intended to
promote safety does not prove that it is actually necessary
for that purpose. See Stoddard-Quirk, supra at 621.
Additionally, while some employees may have felt free to
engage in distributions in such nonwork areas as parking
lots and cafeterias, and there was no evidence of enforce-
ment of the rule as written (other than the Martinez-
Firchow incident, infra), there was also no evidence that
the employees were told that such areas were open to their
distributions. That the rule was not posted in the cafeteria
is not the equivalent of a statement from the Employer that
they were free to engage in distributions in that area. Cf.
Essex International, Inc., 211 NLRB 749 (1974), wherein a
facially invalid no-distribution rule (prohibiting distribu-
Judge's function to set off in new directions. Moreover, were the law less
clear, I would still be disinclined to promulgate a policy which would permit
the Employer herein, who claims special "concern for the protection of the
right of free speech and knowledge of communications," to maintain rules
more restrictive and less clear than other employers subject to the Act.
210
THE TIMES PUBLISHING COMPANY
tion during "working hours") was found not to interfere
with employee rights in view of both a second statement of
the rule which did not contain the offending phrase and
oral statements to each employee that breaktime was theirs
to use as they pleased.
The no-distribution rules as written for the downtown
location initially proscribed distribution in "public areas."
This was first modified to "public areas within the
building," which was defined in the no-solicitation rule
printed above the no-distribution rule to include such
places as "lobbies, elevators, lunchrooms or snackbars."
The subsequent modification of the no-solicitation rule
eliminated "lunchrooms or snackbars" from the examples
of public areas. The designation of "lobbies and elevators"
as prohibited public areas remained. These rules, as written
initially and as modified, precluded employees from
engaging in distributions in such nonwork areas as
elevators, hallways which might be traversed by the public,
and the lobby of the building adjacent to the main
building. No justification for such a curtailment of
employee rights was offered. Accordingly, I find that the
prohibition of distributions in "public areas" to be unduly
broad and invalid. The Presbyterian Medical Center, 227
NLRB 904 (1977). See also St. John's Hospital, supra.4
Respondent has asserted that the downtown lobby (in
the main office building) is a working area within which
distribution may validly be prohibited. I agree. The record
reveals that within this 20 by 70 foot area, Respondent
transacts substantial business related to the sale of the
newspaper and advertisements therein, its newsgathering
functions, and its goodwill within its marketing communi-
ty. Employees work in that lobby, including a receptionist,
ad-takers, and cashiers. Therefore, to the extent that
Respondent's rule would prohibit distributions within this
area, I deem it valid.
Respondent has contended additionally, "that since the
lobby is also a customer selling area frequented by the
public, it is entitled to have a broader rule [including a
prohibition of solicitation by employees on their nonwork-
ing time] as established by the retail store precedents."
This issue is controlled by the Board's recent decision in St.
John's Hospital, supra. The employer therein sought to
apply the Board's retail rules as set forth in May
Department Stores Company, a Corporation, d/b/a Famous-
Barr Company, 59 NLRB 976 (1944), to areas of a hospital
to which patients had access. The Board, while finding that
"hospitals may be justified in imposing somewhat more
stringent prohibitions on solicitation than are generally
permitted" because of need for a tranquil atmosphere
within which to carry out patient care functions, held that
the hospital's reliance on May Department Stores was
misplaced. It pointed out that in a retail establishment:
4 I would, at the least, deem the term "public areas" to be ambiguous.
Members of the public are permitted to go throughout the building, on
business and as Respondent's guests dunng tours. This ambiguity must be
resolved against the promulgator of the rule, rather than the employees who
are required to obey it. Farah Manufacturing Company. 187 NLRB 601
(1970).
5 For this same reason, I reject Respondent's contention that "the
interference with the newsgathenng and selling functions of the newspaper
by allowing union activity in the lobby area would be an unwarranted and
unnecessary restriction on the Company's nght under the First Amend-
[S]olicitation on the selling floor. . . even on nonwork
time, would be disruptive of the store's relationship
with its customers in the pursuit of its main function, i.e.,
selling merchandise. Respondent's basic function is patient
care. It has not been shown that the prohibitions here
discussed are necessary to avoid disruption of that
function. [Emphasis supplied.]
As in St. John's Hospital, Respondent's main function is
not retail trade; neither is the retail business the main
function of the lobby area. And, as in St. John's Hospital,
Respondent has not established that union solicitation in
the lobby, by employees who are not on their working time,
would disrupt Respondent's main function.5
Additionally, for the reasons set forth in the foregoing
discussion regarding the no-distribution rules, I find that
the prohibition of solicitation in "public areas within the
building, such as lobbies and elevators" to be unduly broad
and invalid.6
Finally, I find that Respondent's prohibition of solicita-
tions, at either location, "during the working time of any
staffer," to be ambiguous. I note that earlier versions of the
rule clearly indicated that the prohibition applied to times
when either of the participants to the conversation were
working. The final rule did not so specify and could be
construed to impose a risk of discipline on employees
participating in solicitations when anyone was working. As
Respondent operated around-the-clock, all solicitations
might be barred. Construing the ambiguity against its
promulgator, I find that the rule is unduly broad and
invalid.
General Counsel contended that the no-solicitation rules
were disparately applied, that gambling activities were
permitted while union activities were not. The evidence
fails to support this contention. The record reflects that the
gambling, not generally done in management's presence,
ceased when the no-solicitation rules were posted.
B. Other Alleged Interference
Pressman David Spearman testified that sometime in
September, while he was cleaning the press, he paused in
his work and held a brief conversation with another
employee, Gordon Hill, in regard to the Union. Assistant
Press Foreman Thonen approached, from the direction of
his office, and told Spearman, "not to be caught talking
about unions on the press deck." Thonen denied every
aspect of this conversation; Hill was not called to testify.
Noting that the alleged supervisory remark was in response
to a conversation which in fact constituted an interruption
of work, that Spearman was aware that discussion among
employees was permitted unless it interfered with work,
and that no corroboration was offered, I conclude that
ment," the freedom of the press. See Buckcey v. American Federation of
Television and Radio Artists, 496 F.2d 305 (C.A. 2, 1974), cert. denied 419
U.S. 1093 (1974).
6 Beyond question, Respondent's second no-solicitation rule applicable
to the downtown location, prohibiting solicitation in "lunchrooms or
snackbars," was invalid. The failure to inform its employees that these were
permissible areas, when the rule was subsequently modified, other than by
the deletion of those words, is an additional factor I have considered in
finding "public areas within the building" to be both unduly broad and
ambiguous.
211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even if the conversation occurred as related by Spearman
no unlawful interference with employee rights is to be
found in this incident.7
Employee Sam Dunson testified that, in the course of a
social get-together following work at which the Union was
being discussed, he made the statement that employees
could discuss the Union while on company property. Press
Foreman Donat allegedly responded, "You cannot talk
about Union on Company property.... The Company
could fire you for it." Dunson testified further that Donat
made a similar remark a few days later, in the lunchroom.
However, on cross-examination, and again during redirect
examination, Dunson acknowledged that Donat's state-
ment was to the effect that if such conversations interfered
with their work, they were contrary to company policy.
This latter testimony corroborates Donat's credible recol-
lection of what he told the employees. Such a policy would,
of course, be lawful. Accordingly, I find that General
Counsel has failed to sustain his burden of proving that
these conversations interfered with employee rights.
In the latter part of September, Assistant Press Superin-
tendent Paul Ray asked Dunson whether he was going to a
union meeting which was scheduled for the following day.
Dunson said that he was. According to Ray, the question
arose when Dunson stopped by his office and asked Ray
whether he had seen the union leaflets which announced
the meeting. Dunson denied that he had asked Ray about
the leaflet or otherwise initiated the conversation. On the
following day, Ray ran into Dunson and asked whether he
had attended the meeting. Dunson said that he had and
mentioned that 15 or 20 other employees also attended. It
was Dunson's testimony, denied by Ray, that Ray inquired
of the number who had attended and asked what had been
said and done. I credit Ray as he appeared to be a candid
and straightforward witness. His admission of some
potentially violative conduct is some evidence in support of
his credibility. Dunson's recollective abilities and demean-
or were less convincing. Noted particularly in this regard
were the inconsistencies between Dunson's testimony on
direct examination and that given under cross-examination
concerning Donat's statements to him, referred to in the
preceding paragraph.
There are approximately 500 staffers (employees) at the
printing plant. The Union's campaign had been in progress
for a number of months prior to both the Dunson-Ray
incident and the hearing herein. That incident, however,
was the only evidence adduced of conduct alleged to be
violative as coercive interrogation. It arose in a casual and
apparently unplanned manner, precipitated by a statement
of Dunson, who had a friendly relationship with Ray, a low
level supervisor. Standing alone, and noting the other
circumstances present, I conclude that Ray's questions of
Dunson do not constitute the kind of interference,
restraint, or coercion which constitutes a violation of
Section 8(a)(1). See Arvin Industries, Inc., 226 NLRB 925
(1976); Boston Cab Company, Inc. & McCann's Taxi, Inc.,
212 NLRB 560 (1974).
About September 25, pressman Manuel Martinez was
distributing union literature outside one of the gates to the
I Moreover, finding this statement to be violative would add nothing to
the remedy herein, in view of my findings regarding the no-solicitation rules.
employee parking lot at the 34th Street plant. With him was
Union Representative Donald Moeller and another em-
ployee. Plant Manager Vernon Firchow drove by them,
stopped, got out of his car, and called Martinez over.
According to Martinez, as corroborated by Moeller,
Firchow asked Martinez if he had been handbilling on the
premises. Martinez said that he had not and was told, "I
don't want you handbilling on the parking lot." Firchow
testified that he had earlier received reports of nonemploy-
ees passing out literature on the parking lot, had been
reminded of that when he saw Martinez and two others
whom he could not identify at the gate, and took that
opportunity to tell Martinez that nonemployees were not
permitted to distribute in the parking lots. He denied
saying that employees could not engage in such distribu-
tions. Both Martinez and Moeller impressed me as candid
witnesses with good memories. Their testimony was
mutually corroborative. Further, I deem it probable that,
as Firchow's statement was directed at Martinez, it was
intended as an instruction to Martinez rather than to the
unknown nonemployee. A direction to a nonemployee to
stay off company property would probably have been
made to the nonemployee, rather than through an
employee as intermediary. Accordingly, I conclude that the
version of this statement as related by Martinez and
Moeller is the more credible. I further find and conclude
that Firchow's direction to Martinez unduly restricted
employee organizational rights in a nonworking area and
violated Section 8(a)(1) of the Act. Stoddard-Quirk Manu-
facturing Co., supra.
Upon the basis of the foregoing facts and the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. By promulgating and maintaining rules restricting
the areas in which employees on nonwork time may orally
solicit for labor organizations, and by restricting the
nonwork areas in which employees on their nonwork time
may distribute materials on behalf of labor organizations,
Respondent has engaged in unfair labor practices in
violation of Section 8(aX 1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Other than as set forth above, Respondent has not
violated the Act in any manner alleged in the complaint.
THE REMEDY
It having been found that Respondent has promulgated
and maintained rules unlawfully restricting employee
exercise of rights guaranteed by the Act, I shall recommend
that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
212
THE TIMES PUBLISHING COMPANY
ORDER8
The Respondent, The Times Publishing Company, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Promulgating or maintaining rules prohibiting em-
ployees from soliciting on behalf of any labor organization
on Respondent's premises on nonwork time or prohibiting
the distribution of union literature in nonwork areas during
the employees' nonwork time.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind its no-solicitation and no-distribution rules
to the extent that they prohibit employees from soliciting
on behalf of any labor organization on Respondent's
premises on nonwork time or prohibit employees from
distributing union literature in nonwork areas during the
employees' nonwork time.
(b) Post at its office building and its plant in St.
Petersburg, Florida, copies of the attached notice marked
"Appendix." 9 Copies of said notice, on forms provided by
the Regional Director for Region 12, after being signed by
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
9 In the event the Board's Order is enforced by a Judgment of the 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."
Respondent's authorized representative, shall be posted by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate or maintain any rule which
prohibits our employees or staffers from soliciting on
behalf of any labor organization on Company property
when they are on nonwork time or from distributing
union literature in nonwork areas while on nonwork
time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL rescind our no-solicitation and no-distribu-
tion rules to the extent that they prohibit our employees
or staffers from soliciting on behalf of any labor
organization on our property while on nonwork time or
from distributing union literature in nonwork areas on
nonwork time.
THE TIMES PUBLISHING
COMPANY
213