The Times Publishing Co.

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