The Trustees of Columbia University in the City of New York

THE TRUSTEES OF COLUMBIA UNIVERSITY 185 The Trustees of Columbia University in the City New York and District 65, Distributive Workers America. Case 2-CA-13704 of The director of the Center rejected this application of on April 1, 1975, referring to previously issued uni- June 25, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 27, 1976, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding, and on February 4, 1976, issued an erratum thereto. Thereafter, both Respondent and the General Counsel filed exceptions and supporting briefs. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) of the Act by pro- mulgating or maintaining and enforcing a rule or policy which prohibits the use of all of its property by its employees for the purpose of union organization, solicitation, or other activities protected by Section 7 of the Act during nonwork time in nonwork areas. We agree. The Administrative Law Judge also found that Re- spondent did not violate the act by refusing to permit the District 65 organizing committee, an organizing committee made up solely of Respondent's employ- ees, to use Earl Hall for organizational purposes, be- cause it was not obligated to grant such permission. We do not agree. Earl Hall and St. Paul's Chapel make up the Earl Hall Center which is used for programs sponsored by the Center and for weddings and receptions. The University permits use of the Center by both campus student organizations and off-campus groups. As the Administrative Law Judge found, since spring of 1973, District 65, the Charging Party, has been organizing university clerical employees at the Morningside Heights campus. In connection with the organizing attempts, an organizing committee was formed consisting solely of university employees, and on March 20, 1975, a member of the employee com- mittee applied for space for a meeting in the Center. versity memoranda prohibiting use of university fa- cilities for organizational purposes.' However, this announced university policy per- taining to organizing efforts contrasts with its past practice of permitting unions which already repre- sent university employees to use university facilities. For example, District 1199, Drug and Hospital Em- ployees Union, which represents about 500 clerical employees, has a provision in its contract which al- lows it to use university facilities for union matters. Similarly, by past practice, Local 241, Transport Workers Union, which represents building and grounds employees, has been and is permitted to use university facilities. Further, the record established that the Maids Steering Committee from Columbia, which represents other university employees, used Earl Hall for a meeting in April 1974. In the present case we have held, in agreement with the Administrative Law Judge, that Re- spondent's prohibitive rule is invalid because it pro- hibits all of its employees from using any of its property for protected activities at any time. In addi- tion, as set forth above, Respondent has disparately enforced this invalid rule.' Thus, we find that Re- spondent has allowed some recognized union groups to use Earl Hall and other university facilities for union matters and has allowed outside groups to use the Center for a variety of purposes. Consequently, Respondent's failure to permit the Charging Party to hold organizational meetings in the Center is dis- criminatory. Such discriminatory treatment inter- feres with employees in the exercise of the rights guaranteed in Section 7 in violation of Section 8(a)(1) of the Act. Accordingly, in order to remedy the denial of rights guaranteed under the Act, we shall order that Respondent not only cease and desist from promul- gating, maintaining, and enforcing its invalid rule, but also that Respondent permit the District 65 orga- nizing committee, or any other employee group, equal nondiscriminatory access to the Earl Hall Cen- 1 April 23, 1975, memorandum from Donald L Miller, university vice president and personnel manager , explains that to do otherwise [w[ould be improper since it [could] work to the detriment of other labor organizations, some of which presently have collective-bargaining agreements with the University covering similar classifications of em- ployees In a February 3, 1975, memorandum , issued in the face of organizing at- tempts by some unions , the University reiterated its stand that "[n]o Univer- sity property, facilities, equipment, personnel , etc - could be used for organizing purposes by labor organizations or groups of employees In view of the disparate application of its rule , Member Walther agrees that Respondent has forfeited whatever rights it may otherwise have had under GTE Lenkurt, Incorporated 204 NLRB 921 (1973), to restrict the access of off-duty employees to its premises 225 NLRB No. 9 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ter facilities for purposes of engaging in activities protected by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, The Trustees of Columbia University, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Insert the following as paragraph 1(b) and relet- ter the subsequent paragraph accordingly: "(b) Denying the District 65 organizing commit- tee, or any other employee group, equal nondiscrimi- natory access to the facilities of Earl Hall Center for purposes of engaging in activities protected by Sec- tion 7 of the Act." 2. Insert the following as paragraph 2(a) and relet- ter the subsequent paragraphs accordingly: "(a) Upon request, permit the District 65 organiz- ing committee , or any other employee group, equal nondiscriminatory access to the facilities of Earl Hall Center for purposes of engaging in activities protect- ed by Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support labor organiza- tions To bargain as a group through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity, except to the extent that the employees' bar- gaining representative and employer have a collective-bargaining agreement which impos- es a lawful requirement that employees be- come union members. of our property by our employees during their nonwork time in nonwork areas for the purpose of union organization, solicitation, or other ac- tivities protected by Section 7 of the National Labor Relations Act, as amended. 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 permit the District 65 organizing committee, or any other employee group, equal nondiscriminatory access to the facilities of Earl Hall Center for purposes protected by Section 7 of the Act. THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: On April 25, 1975, District 65, Distributive Workers of America, the Charging Party, herein called the Union, filed a charge against Columbia University,' Respondent herein, alleging that Respondent engaged in unfair labor practices within the meaning of the National Labor Relations Act (29 U.S.C. 151 et seq.), in that since on or about April 1, 1975, Respondent violated the Section 7 rights of employees to organize by prohibiting them from holding meetings for that purpose in the Earl Hall Center, a building which was otherwise available to employees and to the general public for meetings. On August 21, 1975, the Regional Director for Region 2 issued a complaint and notice of hearing based upon the above charge, which was served on Re- spondent, asserting that the Respondent's actions consti- tuted an unfair labor practice violative of Section 8(a)(1) of the Act. Service of the charge, the complaint and the notice of hearing was duly made on the Respondent. Respondent thereafter filed its answer dated August 29, 1975, in which it admitted certain allegations of the complaint , but denied the allegations of unfair labor practices. Respondent also raised as an affirmative defense the bar of statute of limita- tions set forth in Section 10(b) of the Act Pursuant to prior notice, the hearing was held before me in New York, New York, on November 18 and 19, 1975. All parties were represented, were offered a full opportuni- ty to be heard, to introduce and to meet material evidence, to present oral argument, and to file briefs. Both General Counsel and Respondent duly filed briefs. The briefs were substantial and persuasive and considered by me. Upon consideration of the entire record and the briefs, I make the following: WE WILL NOT promulgate, maintain, or enforce p , any rule or policy which prohibits the use of all to that which appears in the caption 1 The name of Res without objection, was changed at the hearing ondent THE TRUSTEES OF COLUMBIA UNIVERSITY 187 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a New York corporation which has operated a pri- vate university maintaining its principal office at 116th Street at Broadway in the City and State of New York, where it is and has been continuously engaged in providing education and related services. During the year ending August 21, 1975, which period is representative of Respondent's annual operations generally, Respondent in the course and conduct of its operations, derived gross rev- enues therefrom in excess of $1 million. In that period, in the course and conduct of its operations, Respondent pur- chased and caused to be transported and delivered to it, goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were trans- ported and delivered to it in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, Respondent admits, and I find, that Respondent is now, and has been at all material times herein, an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The complaint alleges and Respondent admits that Dis- trict 65, Distributive Workers of America, herein called the Union, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Background Respondent's main campus or Morningside Heights campus, occupies an area of many square blocks in upper Manhattan, New York City, between West 112th Street and West 122nd Street, bounded by Riverside Drive on the west and Morningside Drive on the east.2 While not all of the buildings in that area are owned or operated by the University, the large square block in the center of that area, dominated by the Low Memorial Library, is solely owned and controlled by the University Flanking the Low Me- morial Library are two university buildings: on one side is Earl Hall, on the other is St. Paul's Chapel. Together, they constitute Earl Hall Center. Within two or three blocks of Earl Hall are many private apartment houses and south on Broadway is the Broadway Presbyterian Church. Neither the apartment houses nor the Broadway Presbyterian Church, on the record before me, is owned or controlled by Respondent University. It is undisputed that various units of university employ- ees have been the subject of organizational attempts by a number of labor organizations. Respondent adduced testi- mony showing that a unit of employees in its medical school at 168th Street in Manhattan (the service, clerical, 2 The medical school and its complex of hospitals is located further up- town at 168th Street and Broadway and technical employees constituting its Health Science Division) had been the subject of six Labor Board elec- tions. On the main campus, Respondent's building and grounds employees are represented by Local 241, Trans- port Workers Union. Respondent also has a contract on the main campus with District 1199, Drug and Hospital Employees Union, which represents about 500 clerical em- ployees. Furthermore, Respondent has a collective-bar- gaining agreement with the Supporting Staff Association covering about 1,000 employees at the Health Science Di- vision. Lastly, the record shows that Respondent also has collective-bargaining agreements with unions representing waiters, bartenders, and cooks. 1. District 65 and the District 65 Organizing Committee Since the spring of 1973, District 65 has been organizing certain unrepresented employees on Respondent's main campus. These employees number about 850 according to District 65's petition for certification filed with the Board on April 29, 1975. The unit for which District 65 has peti- tioned is all nonmanagerial, nonsupervisory clerical em- ployees located at Morningside Heights campus at Colum- bia University not covered by a collective- bargaining agreement; except certain employees employed in areas and schools named in the petition. Bernard Olff, District 65's organizer, testified that apart from filing the petition for certification, District 65 from time to time distributes organizing materials on and near the campus and holds weekly meetings at which potential members are solicited and informed of the organizing activities. It appears that at one of these meetings an organizing committee was formed among unrepresented employees of Columbia University employed in the unit which District 65 seeks to represent. This committee calls itself District 65 Organizing Commit- tee In 1973, meetings of the committee, which consists solely of employees of Columbia University in the above unit, were held in private apartment houses on Broadway. Since about November 1974, the organizing committee has been holding weekly meetings in the Broadway Presbyten- an Church which is approximately a quarter of a mile from the main campus as above noted. A map of the main cam- pus, in evidence (Resp. Exh. 5) shows the Broadway Pres- byterian Church to be about two to three blocks from Earl Hall, which is situated in the middle of the main campus. The distribution of literature was accomplished mainly by employees of Columbia University in the petitioned unit, but District 65's organizers also helped and were also present during the Organizing Committee's meetings at the Broadway Presbyterian Church. Furthermore, District 65 paid for the use of the meeting halls, for printing, transpor- tation, and other similar costs incurred by the District 65 Organizing Committee. Mr. Olff testified, in particular, that the organizing committee was not formed at the sug- gestion of District 65, brit rather it was a committee that the employees formed by themselves. Mr. Olff admitted, however, that it was District 65's general organizing tech- nique to form employee organizing committees among em- ployees it seeks to represent. The record also shows, in short, that District 65 has paid for all the expenses of the organizing committee and has provided support materials 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore. The organizing committee has no separate char- ter, bank account, bylaws, or evidence of independent exis- tence and has identified itself as a "local" of District 65. In the spring of 1974, a machinist working in Columbia University's chemistry department, Thomas Demetry, joined the organizing committee and in the fall of 1974 became active in its behalf. Demetry testified that at one of the organizing committee's meetings, it was decided to have a meeting place on campus and that the place to have the meetings were in Earl Hall because several employees on the com- mittee stated that Columbia rented out rooms in Earl Hall to "organizations." Thereafter, on or about March 13, 1975, Demetry went to the Earl Hall Center and obtained an application prescribed by Earl Hall for use of its space. The application was obtained from Ms. Irma Baez, assis- tant to the director for Earl Hall Center. Mr. Demetry exe- cuted the application, on March 20, 1975, naming himself as a representative of District 65 Organizing Committee, the organization according to the executed application seeking space in the Earl Hall Center. The application shows that claimant requested the use of the Dodge room or, alternatively, the auditorium, for the period 5 p.m. through 8 p.m. on dates or alternative dates commencing April 1, 1975. The application shows that the event was described by Mr. Demetry as a general discussion with an- ticipated attendance of 30-50. Mr. Demetry described his title in the organizing committee as "member" and gave his address as 2718 Bainbridge Avenue. No further specifica- tion of Mr. Demetry's address is noted on the application. By letter dated April 1, 1975, Irma Baez supplied a re- sponse to Mr Demetry's application. The response was ad- dressed to Mr. Demetry at 2718 Bainbridge Avenue New York, New York, but also contained the phrase: "local address-313 Havemeyer Hall." 3 The text of Ms. Baez's let- ter of reply is as follows: I regret the space you requested cannot be available to you. I am enclosing a memorandum from Vice Presi- dent for Personnel Management. I understand that this policy is still in effect. The accompanying memorandum, on the stationery of Columbia University, dated February 3, 1975, is addressed to vice presidents, deans, directors, and department chair- men. The memorandum was signed by Donald L. Miller, who was identified by Respondent's witnesses as a vice president of the University and its personnel manager. The memorandum states as follows- In the last few days it has become apparent that the University mail facilities, telephones, and conference rooms are being used in an attempt to organize sup- porting staff employees. As I stated in my memorandum on April 23, 1973, and I again reiterate, no University property, facilities, equipment, personnel, etc. can be used by a labor or- ganization or a group of employees for the purpose of union organization. This is in no way intended as an abridgement of the rights of employees to organize, but for the University to maintain any other position that would expose us to allegations of unfair labor practice charges in violation of the Taft-Hartley Law. There appear to be several unions or groups attempting or organize supporting staff employees. Charges and countercharges between or among the unions are inevitable in this situation, and the University does not intend to do anything which may be a violation of law or which may assist any one union group to the detriment of any other group. I ask your specific cooperation in helping the Uni- versity implement this memorandum. The University mail system, telephone, and conference facilities are in existence for University business only. Thank you for your cooperation. [sign] Donald L. Miller 4 At the time Mr. Demetry asked for the application, Ms. Baez inquired concerning the group he represented. He told her it was the District 65 Organizing Committee., Ms. Baez also stated at that time: "You do not have a chance of getting the room, but you can fill out the application and I will send it in." The record failed to disclose that the University further contacted Mr. Demetry or the organiz- ing committee or ever offered other facilities to the orga- nizing committee as a meeting place. Ms. Baez testified that the Earl Hall Center would not allow District 65 or any union to use a room in the Earl Hall Center because of the center's goals which were pn- marily religious and philanthropic. She also testified that, apart from the center's religious and philanthropic orienta- tion, she also rejected Mr. Demetry's application on the basis of the university policy as announced in the memo- randum of February 1975 of Vice President Donald L. Miller. Dr. J. Paul Martin, director of Earl Hall Center since at least 1972, testified that his authority related to the supervi- sion of the activities of 39 student groups and 12 or 13 religious counselors who used the center. In short, he testi- The April 23, 1973, memorandum referred to by Vice President Donald L Miller in the above February 3, 1975, memorandum reads as follows Memorandum To Deans, Directors and Department Chairmen It has been brought to my attention that University property is being used in an attempt to organize employees for the purpose of collective bargaining We have been advised by labor counsel that it is illegal for the Uni- versity to assist any organization in its attempt to unionize employees To do so would be improper since it can work to the detriment of other labor organizations, some of which presently have collective-bargaining agreements with the University covering similar classifications of em- ployees You are advised that permission should not be granted to any orga- nization to use University property for the purpose of organizing em- ployees Signed, Donald L Miller, Vice President I invite the attention of Respondent to the language herein forbidding assis- tance because of the possible detriment to labor ornanizations haven collec- a g 3 Havemeyer Hall is a building on the main campus (Resp Exh 5) With tive-bargaining agreements with Respondent. such an address, I infer that Ms Baez knew that Demetry was an employee 5 The director of the Center, Dr J Paul Martin, knew that the organizing of Respondent committee was a group of employees THE TRUSTEES OF COLUMBIA UNIVERSITY 189 fled that he managed and supervised the use of the Earl Hall facility , that the center's activities included social ac- tivity programs, research action programs, cultural pro- grams, counseling services , and similar activities primarily for members of the center. Dr. Martin testified that the Earl Hall is used predominantly by students and university groups, members of the center, and seldom is used by per- sons or groups not affiliated with the University and that until recently Columbia staff was not encouraged to use Earl Hall for parties and other events. He also testified, however, that because of recent financial problems he was happy to have persons use Earl Hall for weddings, wedding receptions, and similar activities if they could pay a size- able fee to help balance the center's budget. The evidence, however, is that only 30 hours of 7,000 hours of Earl Hall activities in the past year were devoted to noncampus groups. However, with regard to the use of Earl Hall by the Dis- trict 65 Organizing Committee, Dr. Martin, contrary to his subordinate Ms. Baez, testified that it was he who made the final decision rejecting the Demetry application ; and that the application was rejected not because of Earl Hall's pe- culiar restriction to religious and similar uses but because of the memorandum of Vice President Miller dated Febru- ary 3, 1975, relating to the use of university facilities by labor organizations and groups of employees. 2. Earl Hall Center The Earl Hall Center is composed of two buildings Earl Hall and St. Paul's Chapel . The administrative handbook which was in effect in the period of October 1974 (G.C. Exh. 3, in evidence), chapter IX states: "The Earl Hall Center shall consist of Earl Hall and the Chapel . The Cen- ter shall have as its purpose the furtherance of the spirtual, philanthropic , and religious life of the University." That handbook also notes that the membership of Earl Hall Center is composed of three constituencies : student groups, counseling groups, and the university staff. The handbook in effect in October 1974 through August 1975, notes that with regard to contracts for space for both Earl Hall and the Chapel, all arrangements were to be made with Ms. Baez by submitting an application to her. It notes that the use of space in Earl Hall Center would be granted in the following order: 1. Student governing board member groups. 2. Bonified [sic] campus student organizations and/or Columbia University Departments or Schools. 3. Weddings and wedding receptions of University members. 4. Off campus groups.6 6 In the August 1975 addition of the handbook, the order of preference is modified as follows I Programs sponsored by Censer constituencies 2 Bonified [sic] campus student organizations and/or Columbia Uni- versity 3 Weddings and wedding receptions 4 Off campus groups The handbook also notes, under the title "Sponsorship," that "Member groups are not permitted to be used as vehi- cles by which other organizations obtain space or use Cen- ter facilities . All non-members use the Center as guests and their actions are the responsibility of the member who in- vited them." Although the activities in Earl Hall appear predominant- ly to be those associated with religious and philanthropic organizations, the evidence shows that Earl Hall has per- nutted a meeting of April 19, 1974, of an organization iden- tified as the Maids Steering Committee from Columbia in its Schiff room in Earl Hall. Ms. Baez testified that the Maids Steering Committee consisted of a group of employ- ees and that the employees were neither member nor asso- ciate members of Earl Hall . She testified that the use of Earl Hall by the Maids Steering Committee was not in conformity with the religious and similar purposes of Earl Hall. Moreover, Ms. Baez testified that she knew that the Maid Steering Committee was a labor organization affiliat- ed with a parent labor organization , but that space was granted because that was "a formed group ."; i.e., a labor organization already recognized by Respondent . She also testified that Earl Hall is used for weddings and parties of persons who are not employees of or directly affiliated with the University . However, she testified that such off-campus groups who used Earl Hall have some relationship or spon- sorship from a member of the center or a person with a Columbia University affiliation. Thus, it is not available to the general public, she said. The record shows that Earl Hall Center has been used by off-campus groups involved in community affairs and by employees of Columbia for a Christmas party. The handbook also shows that off-cam- pus groups who use the center 's facilities pay considerably higher rental fees for the use of such facilities. The evi- dence fails to show that Earl Hall is a work area. B. Columbia University's Relationship to Organization by its Employees Ross Rimicci, director of employee relations of Respon- dent since May 1974, testified that his immediate supervi- sor is Donald L. Miller , vice president of personnel. Mr. Rimicci testified that he and Vice President Miller, on the advice of legal counsel, drafted the February 3, 1975, mem- orandum . He stated that that memorandum was distribut- ed because a number of union groups were at that time organizing unorganized employees at the University. This was in the beginning of 1975. In particular, Mr. Rimicci was concerned with an article in the Columbia Spectator, a student newspaper, the January 21, 1975, edition of which noted that there was activity by District 1199, Drug and Hospital Workers Union, to organize the 1,000 nonunion clerical workers and that there appeared to be organizing activity by the Transport Workers Union (TWU) as well (Resp . Exh. 2, in evidence). Mr. Rimicci testified that Co- lumbia University has no policy prohibiting distribution of campaign literature or other documents or prohibiting so- licitation of employees on its campus To his knowledge such literature has been distributed. Indeed, Mr. Rimicci 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that there had been distribution of authorization cards and other literature and District 65 Organizing Com- mittee rallies both on and off the campus. Mr. Rimicci also testified that pursuant to terms of collective-bargaining agreements or past practice established prior to the exer- cise of National Labor Relations Board jurisdiction over Columbia University, Local 241 of the Transport Workers Union, District 1199 of the Drug and Hospital Workers Union, and the Supporting Staff Association have been and are allowed to use facilities of the University for meet- ings of their members. Mr. Rimicci testified that the reason that the University does not allow its facilities to groups of employees who are in the process of organizing is that the University does not wish to become involved, or get into the middle of problems, between and among various union groups who are attempting to organize the same employ- ees. IV ISSUE The issue is did Respondent violate Section 8(a)(1) of the Act when it denied the application of District 65 Organiz- ing Committee to meet in Earl Hall on nonwork time pur- suant to a rule barring Respondent's property, facilities, equipment, and personnel from use by a labor organization or group of employees for the purpose of union organiza- tion. A. The Contentions of the Parties Respondent contends (1) that General Counsel was obliged to prove that in order for there to be a violation of employees' Section 7 rights, the employees must have knowledge of the Respondent's unlawful policy; (2) that the Respondent's policy, as embodied in the memorandum of February 3, 1975, executed by Vice President Miller, does not constitute a per se violation of the Act in that the language of the memorandum does not show that employ- ees' rights to self-organization to give and receive informa- tion was restrained or coerced, (3) that, assuming arguendo that the language of the memorandum be construed to lim- it access to Respondent's property by nonemployee groups, such restriction would not violate Section 8(a)(1) of the Act because reasonable access has been accorded to nonem- ployee groups; (4) that, assuming arguendo that the Respondent's policy is construed as denying access to a group of employees, Respondent's policy does not violate Section 8(a)(1) of the Act because, in the balancing of the right of Respondent to protect and enjoy its property, com- pared with the rights of the employees to organize, the em- ployees have had sufficient opportunity to solicit and orga- nize on Respondent's property and that they should not be allowed to claim interference, restraint, and coercion in- volving those rights because Respondent requires the use of its buildings only for business associated with the uni- versity purpose, especially in view of the employees' rights of access to Columbia University's property generally; (5) that there was no violation within the limitation of the 10(b) period of the Act because Demetry's request was as an agent for District 65, and since District 65 was not, according to General Counsel, a labor organization against which there was interference, restraint, and coercion, then there was no act within the 6-month period which would permit the Board to find the University's policy unlawful with regard to the District 65 Organizing Committee; and (6) that not only was there no discriminatory rule affecting the organizing committee rights, there was also no discrim- inatory application of the valid rule in that the evidence failed to show that there were other off-campus groups which were permitted to use Earl Hall as opposed to the District 65 Organizing Committee. In particular, in this re- gard, Respondent argued that General Counsel failed to prove that groups without ties to the University were per- mitted to use university buildings contrary to the treatment afforded to the Distract 65 Organizing Committee. B. Contention of the General Counsel The General Counsel contends that Respondent's rule of refusing to permit an employee group to use its facilities for purposes of organization activity falls within the Board's rules forbidding over-broad no-solicitation rules; that regardless of the lawfulness of a no-access rule regard- ing an employer's rights in his private property relating to nonemployee groups attempting to organize his employees on the employer's property, such no-access rules do no re- late to the present facts; that rules like that of Respondent embodied in the memorandum of Vice President Miller which is designed to allow employees to utilize company property for purposes except unionization activity are pre- sumptively invalid; and that the effect of such a rule is to prevent employees from discussing union organization in nonwork places on nonwork time in the facility which, as here, is used by other employees for other purposes. Thus, General Counsel argues that under the Board's cases, Respondent's policy of preventing the District 65 Organiz- ing Committee, a group of employees, from using Earl Hall, is not only unlawful on its face but unlawful as ap- plied C. Findings and Conclusions With regard to Respondent's insistence that the employ- ees must have knowledge of the unlawful policy as "an essential ingredient" in the finding of a violation of the employees' Section 7 rights, Respondent offers no authori- ty for that proposition. Respondent, nevertheless, concedes that the evidence of dissemination of this policy was that Mr Demetry received a copy of the policy (i.e., the Febru- ary 1975 Miller memorandum) accompanying the notice of rejection of the application for the Dodge room in Earl Hall. Respondent notes, in particular, that there was no evidence that Demetry informed other employees of the rejection let alone the policy. This co itention is without merit. Aside from the fact that Demetry was the agent of the organizing committee and could reasonably be as- sumed to have executed his functio.i as agent in notifying his principal of the rejection, it appears to me sufficient that Demetry, an employee and a member of the organiz- ing committee, knew of the unlawful policy and, as part of the committee, suffered whatever restraint, coercion, and interference, caused by Columbia's policy. Thus, I find that the mere fact that there was no general dissemination THE TRUSTEES OF COLUMBIA UNIVERSITY 191 of Columbia's policy would in no way affect the lawfulness or unlawfulness of that policy; and that Demetry's knowl- edge was sufficient. It is thus unnecessary to decide wheth- er, in the absence of employee knowledge, Respondent's rule would be unlawful. There was such knowledge. Likewise I reject Respondent's argument in favor of a finding that Section 10(b) of the Act applies to this case because the District 65 Organizing Committee was an agent of District 65 and that there was no allegation of any violation against the interest of District 65. I do not, 1 be- lieve, fully understand Respondent's contention but I find that the District 65 Organizing Committee was indeed a group of Respondent's employees whether or not those em- ployees are considered as a separate group or as an agent of District 65, Distributive Workers of America. The fact that the organizing committee may well be an agent of District 65, as Respondent contends, does not foreclose the fact that the members of the organizing committee were all employees of Columbia University rather than nonemploy- ee organizers. The fact that they favored District 65 as a parent organization or characterized themselves as a "lo- cal" in no way detracts from their status as a group of employees of Respondent. On the contrary, I agree with General Counsel that the organizing committee consists of a group of employees of Columbia University and that the rules of the Board, adopted by the courts, relating to the denial of access to private property by nonemployee groups do not apply to the instant case. To that extent, certain elements of N.L.R B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112-113 (1965); Central Hardware Company v. N. L R B, 407 U.S. 539 (1972), do not apply to the instant facts. Com- pare GTE Lenkurt, Incorporated, 204 NLRB 921 (1973), and M Restaurants, Incorporated, d/b/a The Mandarin, 221 NLRB 264 (1975). In GTE Lenkurt the Board (Members Fanning and Jenkins dissenting) held lawful a rule wherein the employer prohibited off-duty employees from remain- ing on or returning to the plant premises during nonwork- ing hours for any purpose, there being no evidence that the rule was discriminatorily applied. Off-duty employees were compared to nonemployees in that case. In M Restaurants, a three member panel (Chairman Murphy concurring) found unlawful a rule construed as prohibiting solicitation by employees after the shift had ended where the rule was, unlike the rule in Lenkurt, con- strued to be directed at employee union solicitation and where the evidence showed that the employer permitted off-duty employees to remain on the premises for other purposes. Contrary to the testimony of Ms. Baez, assistant director of the Earl Hall Center, the director of Earl Hall Center, Dr. Martin, testified that it was the company policy as an- nounced in the memorandum of Vice President Donald L. Miller which caused him to reject the Demetry application on behalf of the District 65 Organizing Committee employ- ees. Ms. Baez testified, as above noted, that it was not only the University's labor policy but it was the peculiar reli- gious orientation in the Earl Hall Center which caused the rejection. Thus, I find that the rejection, in any event, was based in part upon the February 3, 1975, memorandum of Vice President Miller. It should be recalled that the memorandum of Vice Pres- ident Miller reads as follows: As I have stated in my memorandum of April 23, 1973, and I again reiterate , no University property, facilities, equipment, personnel, etc., can be use by a labor organization or group of employees for the pur- pose of union organization. As I have stated above, I agree with counsel for the Gener- al Counsel that whether or not the organizing committee is a labor organization within the meaning of the Act, or an agent of District 65, it certainly is a "group of employees" who are attempting to engage in self-organization within the meaning of the Act and who are entitled to its protec- tion Thus I have found, as above, that the Board's more liberal rules relating to rights of employees to solicit on employer's property should apply rather than any rules re- lating to the more limited rights accorded to nonemployee groups. In order to dispose of the issue presented in this case, three subissues are considered: (a) Whether Respondent's rule is per se unlawful. (b) Whether the rule was unlawfully applied. (c) Whether, in any event, Respondent is obliged to rent space in Earl Hall to the organizing committee. 1. The rule is unlawful on its face and violates Section 8(a)(1) The rule proscribes a group of Respondent's employees, engaged in union organization, from using any "University property, facilities, equipment, personnel, etc." There is no limitation or allusion to nonworking time or nonwork places in the proscription. While the immediate cause of the issuance of the February 3, 1975, memorandum (reiter- ating the rule) may well have been the unauthorized use of Respondent's mail facilities, telephone, and conference rooms, neither the 1973 memorandum nor the decretal por- tion of Respondent's February 1975 reiteration thereof is so limited The rule encompasses "no University property," relates to employees as well as nonemployees, and is direct- ed against organization by its employees. As such, the rule on its face would prevent employees using any part of Respondent's premises even on nonwork time from engaging in protected union activity. This is clearly unlawful. Avon Convalescent Center, Inc, 200 NLRB 702, 705 (1972); Groendyke Transport, Inc, 211 NLRB 921 (1974). General Counsel correctly argues that the right to engage in union activities (distribution, solicita- tion) on nonwork time, in nonwork areas has long been protected: Republic Aviation Company v. N L.R.B., 324 U.S 793, 803-804 (1945); N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 110-111. A rule which interferes with such rights is presumptively invalid, though the employees are on Respondent's property, M Restaurants, supra, citing Peyton Packing Co, 49 NLRB 828, 843-844 (1943), enfd 142 F.2d 1009, cert. denied 323 U.S. 730. Respondent argues that the language of the memoran- dum, especially its use of the word "property . .. does not 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and could not mean property in the sense of all real prop- erty of the University." Yet, the memorandum is to the contrary ("no University property") and, even if there were to be a limitation imposed by other language in the Memorandum, there is no showing where or when employ- ees could engage in otherwise protected activities. Respon- dent counsel's argument is attractive but not supported by the facts.' Similarly, Respondent's arguments regarding the appli- cability of Section 10(b) of the Act, as I understand them, appear to be mistaken. Originally, Respondent appeared to suggest that since the restrictive rule was promulgated in 1973, its reiteration and enforcement in 1975 was outside the 6-month limitation. The reaffirmation within the 10(b) period is controlling. Thus, this contention is untenable, The San Diego Civic Facilities Corporation, 175 NLRB 161 (1969). Its further argument suggesting no infringement of the Charging Party's rights, as above noted, is also without merit. In short, the rule here, which on its face is directed against employees engaging in activities protected by Sec- tion 7 of the Act, has not been shown to be necessary to maintain production or discipline, Peyton Packing, supra, and is nowhere limited to work-time and work place areas, applies to employees lawfully on Respondent's premises and must be presumed to be invalid. I so find, M Restau- rants, supra. Of course, the fact that the rule fails to men- tion solicitation or distribution is not significant, M Restau- rants, supra; See Republic Aviation Corp., v. N L. R. B, supra, 803. ceptable under the aims of the center. Furthermore the single use by the Maids Steering Committee and two Christmas parties do not constitute a dedication to outside uses, and are compatible with past practices. The evidence, based on the credited testimony of Dr. Martin is that only 30 of 7,000 hours of Earl Hall activities in the past year came from organizations outside-those not sponsored by the members of the center or the University. Thus, it does not follow that, because Respondent has promulgated and implemented S an unlawful rule, and not- withstanding that Respondent may not exclude all of its private property from use by employees lawfully thereon during nonwork hours absent special circumstances, it must permit all of its private property for such use. I con- clude that Respondent is under no such obligation here and shall recommend accordingly. The only property the Charging Party desires is Earl Hall and I conclude Respon- dent is not obligated to permit its use. I am unable on this record to recommend to which property and under what conditions Respondent's obligation attaches V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with Respondent's operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. 2. The application and enforcement of the unlawful rule violates Section 8(a)(1) of the Act Here, accepting the testimony of Dr. Martin and Ms. Baez, the reason for the rejection of the Demetry applica- tion was, in whole (Dr. Martin) or in part (Ms. Baez) due to the above unlawful rule The enforcement, in addition to the promulgation, of an unlawful rule similarly violates Section 7 rights. 3. The use of Earl Hall In this case , since the complaint alleges and Respondent denies that the statutory violation extends not only to the promulgation and enforcement of an unlawful rule but to its use in the denial of Earl Hall, the matter appears to me necessary for resolution . On this point, I disagree with General Counsel whose complaint and brief appear to re- quire that Respondent permit the organizing committee the use of the center. While it is true that, over the last year, the religious and members-only orientation of the center has become less severe, and, indeed, there are wedding receptions, Bar Mitzvahs, and social-action groups using the center, yet these users are groups sponsored by Dr. Martin under the authority of the University or are otherwise of a type ac- Conclusions of Law 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within 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 By promulgating or maintaining and enforcing a rule or policy which prohibits the use of all of Respondent's property by its employees for the purpose of union organi- zation, solicitation, or other activities protected by Section 7 of the Act during nonwork time in nonwork areas, Re- spondent violated Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent is engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings and conclusions , and pur- suant to Section 10(c) of the Act, I hereby issue the follow- ing recommended: 8 On this record, there is no suggestion that the source or enforcement of Whether the rule was intended merely to apply to certain structures or is the rule or its implementation derives from union animus or a desire to ambiguous is not helpful to Respondent Summit Nursery and Convalescent obstruct statutory rights, N L R B v Stowe Spinning Company, 336 U S 226, Home, Inc, 196 NLRB 769, fns 2 and 4 (1972) The ambiguity is construed 230-233, N L R B v The Babcock & Wilcox Co. supra On the contrary, the against the promulgator, Avon Convalescent Center, supra intent appears wholly benign and defensive THE TRUSTEES OF COLUMBIA UNIVERSITY 193 ORDERS The Trustees of Columbia University in the City of New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating, maintaining, or enforcing any rule or policy which prohibits the use of all of Respondent's prop- erty by its employees for the purpose of self-organization during nonwork time in nonwork areas. (b) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of their rights to engage in self-organization and mutual aid and protection. 2. Take the following affirmative action found necessary to effectuate the policies of the Act. (a) Post on bulletin boards maintained by Respondent for dissemination of information relating to its employees copies of the attached notice marked "Appendix." ° Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees 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. (b) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 9 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 10 In the event that the Board's Order is enforced by a Judgment of a 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 "