North Hills Office Services

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 345 NLRB No. 107 1262 North Hills Office Services, Inc. and Service Employ- ees International Union, Local 32BJ, AFL– CIO.1 Case 29–CA–26546 November 30, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On March 31, 2005, Administrative Law Judge Ray- mond P. Green issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the Charging Party filed a response. The National Labor Relations Board has considered the decision and the record in light of the exceptions, brief, and response and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent con- sistent with this Decision and Order. I. BACKGROUND The Employer is a cleaning contractor that services of- fice buildings in the New York/New Jersey Metropolitan area. The Respondent employs about 400 cleaning em- ployees who work at various locations. The location at issue, 25 Harbor Park Drive, Port Washington, New York, is occupied by Pall Corporation, a company that manufactures and distributes filtration devices. About May 2004,2 the Charging Party Union com- menced an organizing drive among the Respondent’s employees at its various locations. Ruth Perez, an em- ployee at the Pall Corporation location, spoke with a un- ion organizer in the parking lot of the building after her shift sometime in June, and was observed doing so by Supervisor Policarpio Cruz. On the following day, Cruz told Perez that he had been informed by the facility secu- rity guard that Perez was talking to a nonemployee on company property. Cruz reminded Perez, “we have to follow building norms and, [you cannot talk] with mem- bers of 32BJ or any other stranger inside the parking lot.” Cruz informed Perez that she had every right to talk to anyone she wanted but not on the company’s property. The Respondent maintains a rule stating, “No unauthor- ized personnel on the job at any time. (This includes children[.]) Only people who are employed by North Hills Office Services can be on the property.” Perez had another conversation with a union organizer while in her car in the parking lot after her shift some- time in July. Field Supervisor Angel Alvarez saw Perez talking to someone he assumed to be a union organizer. 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. 2 Unless otherwise stated, all dates are in 2004. Alvarez approached Perez’ car and said to Perez, “You must leave the property if you want to talk to them.” Alvarez told Perez that she could continue her conversa- tion off the property only 25 feet away. Perez complied. The next day, Alvarez reminded Perez of the Respon- dent’s rules. Alvarez testified that Pall Corporation told him to be “very careful” with nonemployees on the prop- erty because the building was considered a terrorist at- tack target.3 The issue is whether, as alleged in the complaint and found by the judge, the Respondent violated Section 8(a)(1) of the Act by instructing an employee not to speak with union representatives who were not author- ized to be on the property in question.4 The judge, al- though acknowledging that the Respondent would not have violated the Act by telling the union organizer to leave the property, nonetheless concluded that the Re- spondent could not legally tell its own employees not to talk to a union organizer about union business while on the property during their nonwork time.5 We disagree. II. ANALYSIS It is well established that an employer may take rea- sonable steps to ensure that nonemployees are prevented from trespassing on its property.6 See NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956). The General Coun- sel contends, and the judge found, that the Respondent was not lawfully denying access to nonemployees but was instead restricting its employee from engaging in Section 7 activity, which is unlawful absent special cir- cumstances. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), citing Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944). 3 The facts are as found by the judge, augmented by the undisputed facts in the record. We note that the judge made two inadvertent errors. First, the judge stated that the facility at issue is located in Port Jeffer- son. Second, the judge found that Cruz admitted telling Perez that a security guard informed Cruz that Perez was talking to someone on company property, but Cruz’ testimony does not support this finding. These inadvertent factual discrepancies do not affect the result in this case. 4 The complaint also alleged that the Respondent created the impres- sion of surveillance, interrogated employees about their union activi- ties, and threatened employees with discharge and with stricter en- forcement of company rules because they supported the Union. The judge dismissed these allegations, and there were no exceptions to these dismissals. 5 There was no exception to the judge’s finding that the Respondent had the right to prevent nonemployees from trespassing on the prop- erty, which the Respondent did not own. The Respondent provided services for a company that occupied the property. 6 Although not necessary for our analysis here, we note that the Un- ion had alternative channels of communication available to reach em- ployees. NORTH HILLS OFFICE SERVICES 1263 The burden is on the General Counsel to prove by a preponderance of evidence that the Respondent’s con- duct violated Section 8(a)(1) by interfering, restraining, or coercing Perez in the exercise of her Section 7 rights. Assuming that Perez was engaged in Section 7 activity when she spoke with union organizers, the General Counsel still failed to prove a violation here. The Respondent, through Supervisors Cruz and Alva- rez, simply reminded Perez of the Company’s rule pro- hibiting access to the property by unauthorized person- nel,7 and requested that she not abet violations of that rule by engaging in conversations with trespassers on the property. The fact that the Respondent directed its ad- monition to the employee, rather than to the union organ- izer, does not change the result. We find the judge’s and our colleague’s distinction elevates form over substance —there is no meaningful difference between the Re- spondent’s telling the union organizer to leave the prop- erty and the Respondent’s telling Perez to stop talking to the union organizer while on the property. In both in- stances, the purpose and effect of the instruction is to obtain compliance with a property restriction, one that does not impermissibly restrict Section 7 activity. Our colleague points to cases which emphasize the dis- tinction between employees and nonemployees. How- ever, that distinction, as applied in those cases, means that employees have a Section 7 right to speak with other employees on company property (at appropriate times and places), but nonemployees do not have the right to even be on company property and thus, necessarily, have no right to speak with employees on company property. It is thus clear that the Respondent could tell the nonem- ployee to leave the property. The necessary consequence of this ouster of the nonemployee would be that the non- employee would not be able to speak with the employee on company property. In view of this, we see no mean- ingful distinction between directing the nonemployee to leave the property and directing the employee to not talk to the nonemployee.8 Our finding that the Respondent was not interfering with its employee’s rights is confirmed by the supervi- 7 There are no exceptions to the judge’s finding that the rule was lawful. 8 As there is no meaningful distinction between telling the union or- ganizer to leave the property, and telling Perez to refrain from talking to him, we disagree with our colleague’s assertion that the Respondent did not “seek to enforce the no-access rule against an asserted tres- passer” and that the Respondent “tolerated the union organizer’s pres- ence on its property.” We find that the Respondent did in fact “seek” to enforce its no-access rule against the trespassing union organizer by telling Perez not to talk to the union organizer while on its property. Thus, contrary to the dissent, we do not conclude that the Respondent tolerated the union organizer’s presence on its property. sors’ statements. Alvarez told Perez that she could con- tinue her conversation with the union organizer off the property only 25 feet away, and Perez complied. Simi- larly, Cruz told Perez that she could talk to anyone she wanted, but not on the property. These statements dem- onstrate that the Respondent was not restricting Perez from engaging in Section 7 activity. Instead, Cruz’ and Alvarez’ statements constituted a request that Perez not undermine a legitimate prohibition that was consistent with its work rules and its client’s safety concerns, while at the same time acknowledging Perez’ rights. We do not disagree with our colleague on the law. However, because we find the Respondent’s conduct effectively was directed at the nonemployee trespasser’s presence on the property, we find inapposite the cases she cites addressing no-access rules enforced against employees who exercise their Section 7 rights on com- pany property. Our colleague does not consider the lack of evidence that the Respondent in any manner restricted employees in the exercise of Section 7 activity when the activity did not involve trespassers. Additionally, she ignores a fact we find telling—that Perez could, and in fact did, continue her conversation off the property. Ac- cordingly, we find that the Respondent did not violate Section 8(a)(1) of the Act, and we reverse the judge and dismiss the complaint. ORDER The complaint is dismissed. MEMBER LIEBMAN, dissenting. The Respondent contends that it legitimately enforced a rule barring property access to strangers. However, it enforced the rule not against a (nonemployee) stranger, but against an employee who was lawfully on the prop- erty and engaged in protected activity. The majority agrees with the Respondent that its conduct was lawful, finding no significant difference whether the no-access rule is enforced against an employee or a stranger to the property. However, “[t]he distinction is one of sub- stance.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). On two occasions in the midst of a union organizing drive, the Respondent’s supervisors told employee Ruth Perez that she was not permitted to speak to visitors in the building parking lot. Perez was off-duty in each in- stance, and the supervisors were aware that the visitors she spoke with were union organizers. Although the Re- spondent argues that it was merely enforcing a rule pro- hibiting strangers on the property, in neither case did it attempt to eject the union organizers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264 Employers generally have a property right to exclude nonemployee union organizers from company property.1 But different considerations apply with respect to em- ployees who exercise their Section 7 rights on the em- ployer’s property. As the Board has explained, citing a long line of precedent: In an unbroken line of decisions, this Board and the Supreme Court have stated that, where an em- ployee exercises his Section 7 rights while legally on an employer’s property pursuant to the employment relations, the balance to be struck is not vis-à-vis the employer’s property rights, but only vis-à-vis the employer’s managerial rights. The difference is “one of substance,” since in the latter situation Re- spondent’s managerial rights prevail only where it can show that the restriction is necessary to maintain production or discipline or otherwise prevent the dis- ruption of Respondent’s operations. The Firestone Tire & Rubber Co., 238 NLRB 323 (1978) (citations omitted).2 As in Firestone Tire, the facts here clearly reveal that the Respondent’s managerial interests were not threatened in any way by Perez’ off-duty parking lot conversations with union organizers. As the judge found, the Respondent has not proved any special circum- stances here to justify the restriction on employee protected activity. See, e.g., International Business Machines Corp., 333 NLRB 215, 221 (2001), enfd. 31 Fed.Appx. 744, 2002 WL 451783 (2d Cir. 2002) (unpublished). In contrast, what the Respondent has established is a pretext for interference with protected rights. In neither instance did it seek to enforce the no-access rule against an asserted trespasser.3 Instead, the Respondent used the rule in a manner that clearly had the effect of restraining Perez’ protected activity during an organizing drive. Indeed, the Respondent’s asserted concern with property rights, endorsed by the majority, is completely at odds with the fact that the Respondent actually tolerated the union organizer’s presence on the property. What it clearly did not tolerate was its employee talking to a un- ion organizer. Thus, contrary to the majority, the Re- spondent was not really enforcing a no-access rule; it did 1 Babcock & Wilcox Co., supra; Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). 2 The Board and the courts have long been engaged in “working out an adjustment between the undisputed right of self-organization assured to employees . . . and the equally undisputed right of employers to maintain discipline in their establishments.” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798 (1945). 3 The Respondent was not the owner of the parking lot, but there are no exceptions to the judge’s finding that the Respondent would have had the right to preclude nonemployee union organizers from trespass- ing on the property. See generally Wild Oats Community Markets, 336 NLRB 179, 180 (2001). not really care about the purported trespass. What it wanted to halt was the conversation. I therefore would find that the Respondent violated Section 8(a)(1). James Kearns, Esq., for the General Counsel. Alan Pearl, Esq. and Nancy Hark, Esq., for North Hills. Judith I. Padow, Esq. and Katchen Locke, Esq., for the Union. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. I heard this case in Brooklyn, New York, on February 15, 2005. The charge in this case was filed on September 27, 2004, and the complaint was issued on December 22, 2004. It alleged 1. That on or about June 3, 2004, the Respondent, by its Su- pervisor Policarpio Cruz, (a) prevented employees from speak- ing with union representatives in the parking lot, (b) created the impression of surveillance, and (c) interrogated employees about their union activities. 2. That in July 2004, the Respondent, by its Supervisor An- gel Antonio Alvarez, prevented employees from speaking to union representatives in the parking lot. 3. That in July 2004, Alvarez threatened employees with dis- charge and with stricter enforcement of company rules because they supported the Union. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the brief filed, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent admits and I find that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. I also find that Service Employees International Union, Local 32BJ, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES North Hills Office Services is a cleaning contractor that does business in the New York/New Jersey Metropolitan area. In the present case, it has a contract to provide these services in a building located at 25 Harbor Park Drive in Port Jefferson, New York. This is a 2-story building which has a single tenant, the Pall Corporation.1 That company has offices and some kinds of laboratories in the building. North Hills has about 10 or 11 cleaning people who work at the building, normally between 6 and 10 p.m. The Respondent employs about 400 cleaning employees who work at about 60 to 65 locations. Since 1974, with one excep- tion, its employees, on a companywide basis, in the classifica- tions of matrons and porters, have been represented by another labor organization called the National Organization of Indus- 1 The Pall Corporation, according to its web site is a company prin- cipally engaged in the business of making various types of filters. NORTH HILLS OFFICE SERVICES 1265 trial Trade Unions (NOITU).2 In or about May 2004, the Charging Party commenced an organizing drive among various Respondent’s employees at various locations. In the present case, union organizers at- tempted to approach employees at 25 Harbor Park Drive in early June 2004. Ruth Perez testified that in early June 2004, she spoke with a union organizer in the parking lot one evening after her shift ended. She testified that Supervisor Policarpio Cruz passed by while she had this conversation. He concedes that he saw her having a talk with someone whom he assumed to be a Local 32BJ organizer. On the following day, Cruz approached Perez and admittedly told her that a security officer for the building, via the security camera, had seen her talking to someone and that she should not be talking to visitors in the parking lot. He told her that the Respondent’s rules forbid employees from talking to visitors on company property. She testified that Cruz gave her a copy of the Respondent’s employee rules and told her that she had to follow the rules or she would be fired. He testified that he told her that she had to follow company rules but states that he did not mention any consequences for failing to do so. Perez also testified that in July 2004, there was another occa- sion when she spoke to a union organizer in the parking lot as she was in her car. According to Perez, on this occasion a man whom she later found out was Angel Alvarez, came over to the car, banged on the window and told her that she had to leave; that she couldn’t be talking to someone in the parking lot. Perez testified that on the following evening, at the beginning of her shift, Alvarez came over to her, introduced himself and said that the building was a terrorist target and that she could not be talking to people in the parking lot. She also testified that he said that the employees did not need a different union and that they already received various benefits. According to Perez, Alvarez finally said that things were going to change and that the employees no longer could continue to come in late or go home early and that three mistakes could cost an employee her job. With respect to the July incidents, Alvarez testified that he approached Perez while she was in her car and politely told her that she could not be talking to someone in the parking lot after work; that if she wanted to talk to this person she could go 25 feet and talk to him outside the lot. (Alvarez admits that he assumed that she was talking to a Local 32BJ organizer.) He testified that on the following morning, he spoke to Perez merely to remind her of the Company’s rules about talking to visitors on company premises, which he understood to include the parking lot. He denied telling Perez that the Company was going to make any changes in the way it enforced its rules and in this respect, I am going to credit his version. I note in this respect that the General Counsel produced no other witnesses to assert that the Respondent had announced plans to more strictly enforce its rules. 2 For a more complete description of the Company’s operations and the ongoing contest between the Charging Party and NOITU, see my decision in JD(NY)–05–05. III. ANALYSIS After reviewing the testimony and consistent with my credi- bility findings, I do not conclude that the Respondent interro- gated employees about their union activities, threatened stricter enforcement of company rules, or gave employees the impres- sion that their union activities were being kept under surveil- lance. In the latter regard, while it is true that Cruz told Perez in early June 2004, that her conversation with a visitor had been observed on a security camera, the evidence indicates that the tenant or building owner had previously placed security cam- eras around the premises. Therefore Cruz’ comment to her was merely a truthful description of what had happened the previous night and should not be construed as an indication that the Re- spondent was going to engage in union surveillance. I also credit his denial that he threatened her with discharge. Therefore, the basic remaining question here is whether the Company could tell its employees that they could not speak with union organizers during their off-duty hours while they were present in the parking lot owned or leased by the Respon- dent’s client. Since the parking lot is someone’s private property and as there are no special circumstances herein, the owner or the leaseholder could call the police and legally prevent non- employees from trespassing. Absent special circumstances not present in this case, an employer may bar from its property nonemployee union supporters. Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956).3 Put more prosaically, whether I own or lease property, I have the right, for good reason or ill (or no reason at all), to prevent my neighbor’s well-behaved children from playing on my front lawn. An employer can take reasonable steps to insure that people who are not employees (as opposed to off-duty employees), are prevented from trespassing onto its private property. In Teksid Aluminum Foundry, 311 NRB 711, 715 fn. 2 (1993), the Board affirmed the conclusion that a company did not engage in unlawful surveillance when it posted security guards at its plant entrance and established a procedure whereby persons seeking entry had to sign in and out. The administrative law judge, citing Hoschton Garment Co., 279 NLRB 565, 567 (1986), stated that employers “have a right to respond to an organiza- tional campaign by establishing procedures for denying unau- thorized persons access to their facilities, and any incidental observation of public union activity by security guards is not unlawful.” However, while it is perfectly permissible for a property holder to preclude nonemployees from gaining entrance to private property, the same rule does not automatically apply to the employer’s own employees. In Firestone Tire & Rubber Co., 238 NLRB 1323 (1978), an employee and shop steward was told that he could only continue to use the company park- ing lot if he removed from his car, several large signs, one stat- ing, “Don’t Buy Firestone Products.” This parking lot was used primarily by company employees but also was used by visitors. When the individual refused to remove the signs, he 3 No contention is made here, nor could one be asserted, that the Un- ion had no reasonable means of communicating with employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266 was disciplined. The Board, citing the Supreme Court’s deci- sions in Eastex, Inc. v. NLRB, 434 U.S. 1045 (1978); Hudgens v. NLRB, 424 US. 507, 521 fn. 10 (1976); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1965); and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), stated inter alia, In an unbroken line of decisions, this Board and the Supreme Court have stated that where an employee exer- cises his Section 7 rights while legally on an employer’s property pursuant to the employment relationship, the bal- ance to be struck is not vis a vis the employer’s property rights, but only vis a vis the employer’s managerial rights. The difference is “one of substance,” since in the latter situation Respondent’s managerial rights prevail only where it can show that the restriction is necessary to main- tain production or discipline or otherwise prevent the dis- ruption of Respondent’s operations. . . . The facts clearly reveal that but for the fact that the parking lot was located on Respondent’s premises, Knight was clearly engaged in protected concerted activities. This Board has long held that actions taken in sympathy of other striking employees fall within the protection of Sec- tion 7 of the Act. . . . [T]he Administrative Law Judge cites Cashway Lum- ber Inc., for the rule that an employee does not have a right to affix union posters on the employer’s walls and property. However, this case is clearly distinguishable since Cashway, supra, stands only for the proposition that an employee is not engaged in protected activity if he de- faces the employer’s property. The mere presence of an automobile on which signs have been attached does not constitute the defacement of the property on which it has been parked. . . . . This case does not present a situation analogous to Southwestern Bell Telephone Company, supra, where a message printed on shirts worn at work . . . was found to be “offensive, obscene or obnoxious,” thereby justifying the employer’s actions taken against employees who re- fused to remove them or cover them up. Here . . . the boy- cott signs were not taken into Respondent’s work areas, did not interfere with Knight’s ability to perform his as- signed tasks, and did not otherwise interfere with Respon- dent’s managerial rights. Here, the record clearly reveals that the parking lot was primarily used by employees not then at work and was an appropriate forum for communi- cation among them. The fact that other persons not em- ployed by Respondent may have had access to the parking lot and accordingly have had occasion to read these signs is insufficient reason for Respondent to be able to control an employee’s exercise of his Section 7 rights. . . . The point here is that although it would be permissible for the Respondent or its clients to take steps to preclude union organizers from trespassing onto private property, it is an alto- gether different story for the Respondent to prevent its own employees from engaging in union or protected concerted ac- tivity on private property during their nonworking time. Em- ployees who work on private property are not strangers but occupy the status of invitees. As there is no showing that such activity by employees would adversely affect production or work discipline, I can see no justification for a supervisory direction to an employee (with the necessary implication of disciplinary action for noncompliance), to refrain from engag- ing in protected activity in the parking lot. Thus while I would not find that the Respondent violated the Act by telling a union organizer to leave the parking lot, I would also find that the Respondent could not legally tell its own employees not to talk to a union organizer or other employees about union business on the lot during their nonwork time. International Business Machines Corp., 333 NLRB 215, 219–221 (2001). The Respondent may argue that there are special circum- stances here. In this regard, there was some testimony that Respondent’s management were told by the tenant that it was a terrorist target. But that little piece of hearsay evidence is not sufficient in my opinion. The Respondent presented no other evidence to show that securing the parking lot and making it inaccessible to visitors was necessary for national or anyone else’s security. The tenant may have laboratories in the build- ing but I have no idea what they are for. The parking lot is not surrounded by any fences and the entrances are not patrolled by security guards to prevent unauthorized access. On the con- trary, the lot is adjacent to a public road, has three unsupervised entrances and can be accessed either by vehicle or by foot. CONCLUSIONS OF LAW 1. The Respondent, North Hills Office Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 32BJ, AFL–CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By directing off-duty employees not to engage in union activity in the parking lot, the Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid violation, affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except to the extent found here, I recommend that the other allegations be dismissed. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Inasmuch as this is the fourth Decision finding that the Re- spondent has violated various provisions of the Act in relation to attempts by Local 32BJ to organize its employees, I shall recommend that the notice, in English and Spanish, be posted at all facilities in New York and New Jersey where the Respon- dent is performing services. [Recommended Order omitted from publication.]