The Times Publishing Co.

National Labor Relations Board - Board Decisions

Mar 2, 1979

240 N.L.R.B. 1158 (N.L.R.B. 1979)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Times Publishing Company and Graphics Arts In-
ternational Union. Case 12-CA--7364
March 2, 1979
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS PN I .()L
ANDI) TR'IISDAI I
On August 8, 1977. the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceedings.' Therein. the Board, in agreement
with the Administrative Law Judge, found that the
Respondent had engaged in certain unfair labor
practices within the meaning of Section 8(a)(1) of the
Act by promulgating and maintaining overly broad
and ambiguous no-solicitation and no-distribution
rules at its printing plant and downtown location.
These rules were found to be invalid because they
prohibited: (I) all distribution at Respondent's print-
ing plant for safety reasons: (2) solicitation during
the working time of any staffer at both its printing
and business locations; and (3) solicitation and dis-
tribution in public areas at its downtown location.2
The Board also adopted the Administrative Law
Judge's finding that the Respondent violated Section
8(a)( ) of the Act by interfering with employee distri-
bution of union campaign literature outside one of
the gates of its printing plant's parking lot. However,
the Board reversed the Administrative Law Judge's
finding that the lobby in the Respondent's down-
town location is a working area wherein distribution
can be prohibited. Further, the Board indicated that,
even if the lobby were a working area, the Respon-
dent's no-distribution rule as it applied to the lobby
would be invalid because Respondent's no-distribu-
tion rule is overly broad and invalid for all purposes.
Thereafter, the Respondent filed a petition to re-
view the Order of the Board of August 8, 1977, be-
fore the United States Court of Appeals for the Fifth
Circuit, and the Board filed a cross-petition seeking
enforcement of its Order. On July 20, 1978, the court
issued its opinion 3 enforcing the Board's Order with
231 NLRB 207 (1977).
The Respondent's no-solicitation and nl-distribution rules which were
posted at the Respondent's downtown location. the only site with which we
are concerned herein, read as flllows:
THE (INI)I (TIN(i OF NON( OMFPNY BI:SINtESS StI( I AN SSIN( (O I (TION (OF IIFN [
PII IXiFS (IRI(I ATION (F PFIIIINS S11(Il III tON o MIMBItRSIIIPS OR AN I)IHLR 51iMIAR
pYr _
S
lOI A(TIYlY ARI NOI pERMlI EII) II RIN(i Rsilt WORKIN(i TIM OR ANY SI IFtr R OR i ANY
IIME IN PlI ]c AREAS OF rle RI 11 N(i SII ( S M ORRIS AN) EEVAt ORS
TIHe DISIRIUL tION I)F NON IFMEA PS lISiN(i ( OMPiNI I ITERATI RE SIl I ASI lAFI IES I Ft
tERS OR I(rHFI WRII iEN MIAIFRII BY ANY SIFtI R 1 Nill PF RMII EI)I I RIN(i VORKIt(i TIME
IN W(IRINi ARIFAS PR IN I1R I( AREAS II l tIIN H 81 I I li(Nti
IT'he 7inire Puhhlivhng (onplan v I.RB,B 576 2d 1107 (5th ('iL.
1978).
240 NLRB No. 157
the exception that it disagreed with the Board's de-
termination that the Respondent's downtown lobby
is not a work area. The court stated that it was "com-
pelled to hold that a reversal of the findings of the
Administrative Law Judge on this point [the status of
the Respondent's lobby as a work area] is without
substantial support in the record; that, indeed, the
evidence clearly demonstrated that the lobby was a
Company work area." 4 Further, the court remanded
the case to the Board for the purpose of determining
"whether the lobby is entitled to the same treatment
as a retail store or a hamburger outlet."
Thereafter, the Board accepted the remand and by
letter dated September 12. 1978. invited the parties to
submit statements of position with respect to the is-
sue raised by the court's remand. Both parties filed
such statements.6
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Respondent, The Times Publishing Company, is
engaged in the publication of newspapers in St. Pe-
tersburg, Florida. It maintains two locations, a print-
ing plant and a downtown business office complex.
Only the facts with respect to the downtown business
office complex are relevant to the issue on remand.
The Respondent's lobby in its downtown office
building is open to the public and approximately 250
to 300 people enter it daily. The lobby serves as the
departure point for tours of the building, as well as
the area where customer complaints are lodged, clas-
sified ads and notices are placed, and other items are
given away by the Respondent or bought by the pub-
lic. The elevators in the lobby provide access to the
remainder of the building. In addition, certain of the
Respondent's offices, including its personnel office.
are located off this lobby.7
The Respondent has a number of employees trans-
acting business with the public in its downtown lob-
by. The record reveals that they number fewer than
10. out of a work force of more than 200. In the
4Id al I109.
The curt also directed the Board's attention to the recent Supreme
(Court decision in Beth lmraclt HlopItol V .IR B, 437 U.S. 483 1978). in
Ihat "the views there expressed tea he of assistaice to lthe Board" i an-
swerinlg the question being remanded.
Note that the Administrative aw Judge had found in his [Decision hat
the lobb.hh although a work area. did not also qualify as a retail operation.
Hie halsed this finding on the fact that the min l function of the lobby i not
retail business. and that there was not showing by the Respondent that orga-
nizationall solicitation in the lohh bh emplIoees Inli their nonwolrking time
would disrupt the Respondent's main function.
Ihe Respondent has requested oral argument. [his request is herebh)
denied as the record. the exceptions. and the briefs adequalely present the
issues and the positions of the parties.
In 1976, more than 4.(X}I people applied to , ork fr the Respondent at
this loca.tion.
THE TIMES PUBLISHING COMPANY 1159
lobby there is a receptionist whose duties include di-
recting the public to the proper building locations,
providing the forms for placing notices and adver-
tisements in its papers, and handing out promotional
items supplied by the Respondent. At this location,
the Respondent also employs ad takers and cashiers
who perform their functions at a divided counter in
the lobby. Approximately 400 classified advertise-
ments are placed weekly at the classified ad window.
with payment for the same to the cashiers. These
sales amount to only a small percentage of the Re-
spondent's total advertising sales, and do not consti-
tute a substantial amount of the total advertising in-
come of the Respondent's newspapers. In addition to
receiving moneys for ads sold, the cashiers also ac-
cept funds for such items as almanacs, newspapers,
books by staffers, photographs, scrap pads of news-
print, and prints.
The question now before the Board is whether or
not the Respondent's downtown lobby. already de-
termined by the court to be a work area wherein dis-
tribution can be precluded, is further "entitled to the
same treatment as a retail store or hamburger out-
let," which treatment would also allow the Respon-
dent to prohibit organizational solicitation therein.
In evaluating whether or not a no-solicitation. no-
distribution rule is valid under Section 8(a)( I) of the
Act, the Board applies a general rule that any re-
striction on employee solicitation during nonworking
time, and on distribution during nonworking time in
nonworking areas, is presumptively violative of the
Act. This presumption may, however, be overcome if
the employer introduces evidence establishing its
special needs regarding the maintenance of produc-
tion or discipline in its facility, which would then
justify an exception to the rule.8
The Board has consistently found such an excep-
tion to exist in cases involving retail establishments,
including public restaurants.' In such facilities, the
Board has held that solicitation as well as distribu-
tion may be banned from the selling floor at all
times. The rationale underlying granting an excep-
tion to this category of enterprises is that solicitation
carried on in this type of an area, even on nonwork-
ing time, could interfere with the employer's main
function. For example, in Ma, Department Stores
Compan,'° one of the leading cases in this area, the
Stoddard uir.A Manufizaturin (. 138 N RB 615 (1962)
9laM, Deparment Swtore ( npalr. 59 Nl RB 976 (1944). enfd as nlodl-
fied 154 .2d 533 IBth ('ir 1946): (,didhblat Brr,. Inc., 77 NlRB 12b,2
(1948): MIarhaill i ild ( ., 98 NlRB 88 11952). enfd 21) F 2d 37s 7th
(ir. 1953). Mlntr nrl i)atrd & ( ,. In-. 145 NlRB 846 (1964): Vf-
DInaldr (rporatrl. d h ti Dnald' f Pahh!. 205 N RB 404 (1973):
Ahberi,. In . 213 N RB 686 (19741: lfarrtt ( ,rporatin ( hldr. ', Inta)
223 NI.RB 978 1976)
1 a ,UaI Department Slore ('ll'rni ltil, tlprl
respondent attempted to enforce a general prohibi-
tion against union solicitation at all times anywhere
on its premises. The Board found that no evidence
was produced by the respondent which established
that such a ban had a "reasonable relation to the
efficient operation of [the respondent's] business." "
However, the Board did find that sufficient evidence
had been presented by the respondent to lawfully
preclude solicitation on the selling floor as "[e]ven
though both Solicitor and the person being solicited
are on their lunch hour . . . the solicitation, if carried
on the selling floor, where customers are normally
present, might conceivably be disruptive of the re-
spondent's business." 12 In subsequent cases, the
Board has consistently held that, where a respondent
demonstrates that the primary purpose of its com-
mercial operation, i.e., the sale of merchandise or the
serving of food to customers, is carried on in an area
similar to the selling floor of a department store, or-
ganizational solicitation by employees may be pro-
hibited, as it would necessarily interfere with the em-
ployer's business.'
Unlike the situation in the above cases, the Re-
spondent herein has not demonstrated that permit-
ting solicitation in the lobby of its downtown office
building would interfere with its primary business
operations. The record indicates that the Respon-
dent's lobby is not crucial to it in carrying out its
basis operation of publishing newspapers. As stated
above, only a minor amount of business is transacted
inthe lobby. Further, only a small number of the Re-
spondent's employees. less than 5 percent of its work
force, is in contact with the public at this location. In
addition, while the public does interact with the Re-
spondent at this location, the lobby is only utilized
by the public as more or less of a "dropping off" or
"picking up" point. In fact, very little activity takes
place in the lobby, which warrants the conclusion
that organizational solicitation therein would be
damaging to the Respondent's business. There is,
then, insufficient evidence in this case tojustify mak-
ing an exception to our general rule of allowing solic-
itation on nonworking time in a working area.
Accordingly, while we accept the court's conclu-
sion that the lobby is a work area, we are not willing
to find further that it can be characterized as a retail
establishment. The Respondent's lobby is not, there-
fore, entitled to the same treatment as a retail store
or a hamburger outlet.'4
id at 980
Id at 91
See ases cited In n . irr
.4 As uggested b the court in Its plno . v. have carefull cnsldered
Ihe Suprceme ( urt il opilnlnll a Beth rac.l pra. in arrins g at this conclu-
MOl,[ In erth raIl, the eniploer pr.omulgated and mlantalned a written
('ointlnued
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if, however, we were to conclude that the
Respondent's lobby herein is entitled to be treated as
a retail store or hamburger outlet we would still find
the Respondent's no-distribution rule posted in its
downtown location 15 to be invalid as it applies to the
lobby area because, as stated in our original Decision
and Order,'6 once a rule is found to be generally in-
valid, it is invalid for all purposes and cannot be ap-
plied as valid in part to a specific area.
rule which permitted union solicitation in two specified locations of the
hospital: employee-only areas-employee locker rooms and certain adja-
cent restrooms; and the cafeteria and the coffeeshop. While the rule permit-
ted solicitation in the cafeteria and the coffeeshop, it did so only on a
"one-to-one basis." The same rule permitted distribution of union literature
but only in the locker areas. Further, the rule expressly prohibited union
solicitation and distribution of union literature in all other areas of the
hospital. The Board, at 223 NLRB 1193, fn. 2 (1976). relying on its decision
in St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976).
enfd. in part 557 F.2d 1368 (lOth Cir. 1977), found that the respondent had
violated Sec. 8(aX1) "by maintaining an overly broad no-soliciation, no-
distribution rule that prohibited all solicitation and distribution in all areas
to which patients and visitors have access [such as cafeteriasl and employees
have access during nonworking time other than immediate patient care ar-
eas." The Court of Appeals for the First Circuit enforced the Board's order
only to the extent that it found invalid the employer's no-solicitation, no-
distribution rule as it applied to the cafeteria and the coffeeshop. By requir-
ing that the employer "[riescind that part of its written rule prohibiting
[solicitation and distribution] in its cafeteria and coffee shop," the court left
open the question of whether the employer's rules as applied to areas out-
side the cafeteria and coffeeshop would be valid. N.L.R.B. v. Beth Israel
Hospital 554 F.2d 477 (Ist Cir. 1977). In affirming the court's ruling, the
Supreme Court reasoned that the "main function of the hospital is patient
care and therapy and those functions are largely performed in areas such as
operating rooms, patients' rooms, and patients' lounges": that the employ-
er's cafeteria, "77% of whose patrons are employees ... is a natural gather-
ing place for employees [which] functions more as an employee service area
than a patient care area"; and therefore it concluded that employee solicita-
tion in the cafeteria would not have an adverse effect on the primary pur-
Accordingly, on the basis of the discussion above,
including the parties' statements of position, and the
entire record in the case, we conclude that the Re-
spondent's lobby is not entitled to be treated as a
retail store or a hamburger outlet. We also reaffirm
the findings, conclusions, and Order provided in the
Board's original Decision and Order, with the modi-
fication that we now accept the court's holding that
the Administrative Law Judge correctly found that
the lobby in the Respondent's downtown location is
a work area.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby affirms as its Order the Order
heretofore entered in this proceeding on August 8,
1977.
pose of the hospital [patient care] which would warrant striking the balance
against the exercise of Sec. 7 rights therein. Similarly. in the instant case.
notwithstanding that the Respondent's downtown lobby has been found to
be a work area, where some business is transacted, we are not convinced
that the Respondent's main function, the publication of newspapers, would
be so adversely affected by employee solicitation in the lobby to warrant
striking the balance against the Sec. 7 right of employees to engage in union
solicitation therein. As noted by the Supreme Court, the employer's rules as
they apply to areas, other than the cafeteria and the coffeeshop "not devot-
ed to immediate patient care," are being litigated before the Board in anoth-
er case. Beth srael Hospital, Cases I CA-I 1469, et al.
See fn. 2, supra.
16 The Times Publishing Compan, supra, 231 NLRB at 208.