First Transit, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 2014

360 N.L.R.B. 619 (N.L.R.B. 2014)

FIRST TRANSIT, INC. 619
360 NLRB No. 72
First Transit, Inc. and Amalgamated Transit Union
Local #1433, AFL–CIO. Case 28–CA–023017
April 2, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On January 26, 2011, Administrative Law Judge Lana
H. Parke issued the attached decision. The Respondent
filed exceptions with a supporting brief, and the General
Counsel filed an answering brief. In addition, the Gen-
eral Counsel filed cross-exceptions with a supporting
brief, and the Respondent filed a brief opposing the
cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,1
and conclusions2 except as modified below, and to adopt
the recommended Order as modified and set forth in full
below.3 We shall substitute a new notice to conform to
the Order as modified.
The Oral Access Restrictions
As more fully detailed in the judge’s decision, the Un-
ion sought to organize the bus mechanics at the Re-
spondent’s Phoenix facility in February 2010. The Un-
ion already represented the Respondent’s busdrivers,
fuelers, and cleaners at the facility. On February 10, the

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The Respondent did not except to the judge’s findings that it violat-
ed Sec. 8(a)(1) by: (1) its orally promulgated rule prohibiting employ-
ees from discussing their wages with other employees; and (2) the third
bullet point of the Respondent’s handbook rule 11.03, which requires
management’s authorization for distribution of literature during non-
worktime in nonwork areas. We note that, although the judge’s discus-
sion of this third bullet point refers to the “second part” and “part two”
of this rule, the rule is actually in three parts, and the judge invalidated
the third.
2 In adopting the judge’s conclusions regarding rules 10.02, 11.01,
and 11.04, we do not rely on Ashley Furniture Industries, 353 NLRB
649 (2008), Crowne Plaza Hotel, 352 NLRB 382 (2008), or Tecumseh
Packaging Solutions, 352 NLRB 694 (2008), two–Member Board cases
cited by the judge. See New Process Steel v. NLRB, 130 S.Ct. 2635
(2010); Hospital Pavia Perea, 355 NLRB 1300 fn. 2 (2010) (recogniz-
ing that two Board members “lacked authority to issue an order”).
3 We shall modify the judge’s recommended Order to conform it to
the violations found and to include full explanation of the Respondent’s
options for compliance with the Order. See DirecTV U.S. DirecTV
Holdings, LLC, 359 NLRB 545, 549 and fn. 20 (2013).
Respondent orally promulgated a rule prohibiting its me-
chanics from meeting with union representatives any-
where on the facility premises at any time. On February
11, the Respondent terminated a meeting in the busdriv-
ers’ breakroom between off-duty mechanics and three
union representatives: Robert Bean and Dana Kraiza,
who were employed by the Union, and Virginia Maz-
zone, one of the Respondent’s busdrivers and an officer
of the Union. The judge found that the Respondent’s
actions on both dates violated Section 8(a)(1).
As the Respondent argued, and as the General Counsel
acknowledged, the Respondent could lawfully limit
Bean’s and Kraiza’s access to the mechanics at its facili-
ty. Both were employed by the Union rather than by the
Respondent. See generally Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992). Mazzone, on the other hand, was both
an employee of the Respondent and a union representa-
tive. Unlike Bean and Kraiza, she was lawfully on the
property, consistent with her employment status and se-
curity clearance. Accordingly, the Respondent’s Febru-
ary 10 oral rule and its February 11 conduct were unlaw-
ful because they interfered with the right of the Respond-
ent’s employees who were also union representatives to
organize on the facility premises at appropriate times and
in appropriate places, and the right of the Respondent’s
other employees to participate in this activity. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803–804 (1945).
The Employee Handbook Rules
The complaint alleges that numerous provisions in the
Respondent’s employee handbook rules are unlawful.
The determinative test of legality regarding each of these
complaint allegations is whether employees would rea-
sonably construe the language of the challenged rule to
prohibit protected Section 7 activity. See Lutheran Her-
itage Village-Livonia, 343 NLRB 646, 647 (2004).4 For
the reasons stated by the judge, we affirm her conclu-
sions that several of the Respondent’s employee hand-
book rules violate Section 8(a)(1) of the Act,5 but that

4 An employer violates Sec. 8(a)(1) when it maintains a work rule
that reasonably tends to chill employees’ exercise of their Sec. 7 rights.
If the allegedly unlawful rule explicitly restricts activity protected by
Sec. 7, its maintenance is unlawful. If it does not, then whether the Act
has been violated depends on a showing of one of the following: (1)
employees would reasonably construe the language to prohibit Sec. 7
activity; (2) the rule was promulgated in response to Sec. 7 activity; or
(3) the rule has been applied to restrict the exercise of such activity.
Lutheran Heritage Village-Livonia, above at 646–647.
5 We agree, for the reasons stated by the judge that the second and
third bullet points of rule 11.01 (Disloyalty) are unlawfully overbroad.
Those bullet points respectively prohibit participating “in outside ac-
tivities that are detrimental to the company’s image or reputation, or
where a conflict of interest exists,” or “conducting oneself during non-
working hours in such a manner that the conduct would be detrimental
to the interest or reputation of the Company.” The judge correctly
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
three others are lawful. However, for the reasons stated
below, we reverse the judge’s conclusions that two other
rules (Stealing/Theft, and Work Rules and Employee
Performance) are unlawful. Moreover, we reverse in part
the judge’s conclusion that another rule (Personal Con-
duct) is lawful; instead, we find that one bullet point of
that rule is unlawful.
1. Stealing/theft (rule 11.01)
The judge found that one clause in this five-bullet-
point rule—prohibiting employees from “using Company
property for activities not related to work anytime”—is
unlawfully overbroad. The judge found that employees
would reasonably construe the words “using company
property” to encompass a physical presence in nonwork-
ing areas where employees could lawfully engage in un-
ion and protected activities during nonworking time.
The contested language is embedded in a section of the
Respondent’s handbook that addresses stealing from the
company, employees, or customers; unauthorized re-
moval of property belonging to the company, employees
or customers; failing to account for company funds; and
inappropriate use of company fuel and parts for personal
vehicles. We find that, in context, employees would rec-
ognize that the rule’s ban on the use of company property
for nonwork activities refers to theft or other misappro-
priation of property, and would not reasonably construe
the rule as covering protected activity on the facility
premises. The Board has not automatically construed

distinguished Ark Las Vegas Restaurant Corp., 335 NLRB 1284 fn. 2
1291–1292 (2001), and Lafayette Park Hotel, 326 NLRB 824, 825–827
(1998), where, unlike the present case, the Board found lawful rules
that, in context, employees reasonably would understand as focused on
uncooperative, improper, unlawful or otherwise unprotected employee
misconduct. Albertson’s Inc., 351 NLRB 254, 258–259 (2007), and
Flamingo Hilton-Laughlin, 330 NLRB 287, 288–289 (1999), cited by
our dissenting colleague, are similarly distinguishable. See also Costco
Wholesale Corp., 358 NLRB 1100, 1100–1101 (2012).
Member Johnson disagrees that employees would reasonably read
these rules to proscribe Sec. 7 activity and finds these rules similar to
other rules that the Board has found lawful. See Albertson’s Inc., 351
NLRB at 258, 374 (“Off the job conduct which could have a negative
effect on the Company’s reputation or operations”); Flamingo Hilton-
Laughlin, 330 NLRB at 288 (“off-duty misconduct that . . . tends to
bring discredit to the Hotel”); Ark Las Vegas Restaurant Corp., 335
NLRB 1284 (“Participating in any conduct, on or off duty, that tends to
bring discredit to, or reflects adversely on . . . the Company”); Lafayette
Park Hotel, 326 NLRB at 825 (“Being uncooperative with supervisors,
employees, guests . . . or otherwise engaging in conduct that does not
support the [Employer’s] goals and objectives”). The judge distin-
guished Lafayette and Ark on the basis that the rules in those cases were
contextually limited to intrinsically improper and unprotected conduct.
However, Member Johnson notes that the Board, in finding Ark’s broad
prohibition on “any conduct” lawful, relied on Lafayette’s “largely
identical” lawful rule, without drawing the contextual distinction sug-
gested by the judge.
“company property” to refer to real estate,6 and, as noted
above, the rule’s other bullet points reference the “unau-
thorized removal of property” and obtaining “fuel, parts,
maintenance, or repairs” for employee vehicles from any
“Company operating location.” Thus, employees would
not reasonably construe the term “Company property” in
its widest sense. It would be clear to them that it refers
to the same class of things as those specifically men-
tioned, i.e., something that can be removed/stolen from a
Company location. Notably, throughout the handbook,
the term “property” is used to refer to personal property,
whereas the term “location” is used to refer to the Re-
spondent’s premises.
2. Work rules and employee performance (rule 11.04)
The third bullet point of this four-bullet-point rule pro-
hibits “Poor work habits including loafing, wasting time,
loitering, or excessive visiting.” The judge, citing cases
involving no-loitering rules, found this rule unlawfully
overbroad because employees could interpret it as pro-
hibiting protected activities during nonworktime in non-
work areas. Contrary to the judge, we find that employ-
ees would reasonably construe “poor work habits” to
refer to a failure to perform job duties when an employee
is expected to be working productively. This construc-
tion is consistent with the rule’s heading, the other listed
examples in the contested bullet point, and the proscrip-
tions bookending it (proscribing neglect of job duties and
incompetence). In our view, the General Counsel’s iso-
lation of the word “loitering” from its context is an un-
persuasive attempt to align this rule with Board cases
involving rules both broader in scope or more ambiguous
in meaning; indeed, most of the no-loitering cases cited
by the judge are distinguishable because they explicitly
prohibited loitering outside of employees’ working
hours.7
3. Personal conduct (rule 11.02)
The first bullet point of this three-bullet-point rule
prohibits “[d]iscourteous or inappropriate attitude or be-
havior to passengers, other employees, or members of the
public. Disorderly conduct during working hours.” The
second bullet point prohibits “[p]rofane or abusive lan-
guage where the language used is uncivil, insulting, con-
temptuous, vicious, or malicious.” While the complaint
alleged that each of these bullet points violated the Act,
the judge, not distinguishing between the two, found the

6 See Johnson Technology, Inc., 345 NLRB 762, 763 (2005) (“not
unlawful for an employer to caution employees to restrict the use of
company property [paper] to business purposes”).
7 Cf. Palms Hotel & Casino, 344 NLRB 1363, 1363 fn. 3 (2005)
(striking down rule prohibiting employees from loitering on company
premises before or after working hours).
FIRST TRANSIT, INC. 621
rule lawful. Citing Palms Hotel & Casino, 344 NLRB at
1368, the judge found that employees would not read this
rule as restricting their Section 7 rights, but only as con-
veying the Respondent’s expectation that “they comport
themselves with general notions of civility and deco-
rum.”
In agreement with the General Counsel’s cross-
exceptions, we find that the first bullet point is unlawful-
ly overbroad.8 This bullet point is similar to a rule pro-
hibiting the “inability or unwillingness to work harmoni-
ously with other employees” struck down by the Board
in 2 Sisters Food Group, Inc., 357 NLRB 1816 (2011),
which issued after the judge’s decision. The Board
found this rule in 2 Sisters “sufficiently imprecise that it
could encompass any disagreement or conflict among
employees, including those related to discussions and
interactions protected by Section 7.” Id. at 1817. Here,
as in 2 Sisters, faced with the “patent ambiguity” in the
phrase “inappropriate attitude or behavior . . . to other
employees,” employees “would reasonably construe the
rule” as limiting their communications concerning em-
ployment. Id. That distinguishes this rule from the rules
found lawful in Palms Hotel & Casino that “were more
clearly directed at unprotected conduct.” 357 NLRB
1816, 1817. This distinction is equally applicable con-
cerning the lawful rules in Flamingo Hilton-Laughlin
and Hyundai America Shipping Co., above, cited by our
dissenting colleague.
However, contrary to the General Counsel’s cross-
exceptions, we do not find that the words “uncivil” and
“insulting” in the second bullet point are so patently am-
biguous as to render that bullet point overbroad.9 The

8 Member Johnson agrees with the judge that Palms Hotel & Casi-
no, finding lawful a rule prohibiting “conduct which is or has the effect
of being injurious, offensive, threatening, intimidating, coercing, or
interfering with other employees,” supports dismissal of this allegation.
In addition, he finds this bullet point similar to other rules that the
Board has found lawful. See Flamingo Hilton-Laughlin, 330 NLRB
287 (1999) (rule requiring employees to “maintain in management’s
sole judgment, satisfactory attitude”) and Hyundai America Shipping
Co., 357 NLRB 860 (2011) (rule prohibiting “exhibiting a negative
attitude toward or losing interest in your work assignment”); the latter
also issued after the judge’s decision. Chairman Pearce dissented in
Hyundai and would have found the prohibition against exhibiting a
“negative attitude” unlawful for the same reasons that he finds the
instant rule unlawful.
9 Chairman Pearce would find merit in the General Counsel’s cross-
exception. He finds that the qualifying words “uncivil” and “insulting”
are so “sufficiently imprecise that [they] could encompass any disa-
greements or conflicts among employees,” including protected discus-
sions, and that employees would reasonably construe the rule to prohib-
it such activity. 2 Sisters Food Group, Inc., above at 1817. Further,
Chairman Pearce finds the second bullet point similar to rules prohibit-
ing “[u]sing loud, abusive or foul language” and “disorderly conduct,”
including “insulting” and “abusing” others, found unlawful in Flamin-
go Hilton-Laughlin, above. Because the rules in Flamingo Hilton-
clear thrust of the second bullet point is to prohibit “pro-
fane or abusive” language, and the latter clause must be
interpreted in the context of the introductory language
which makes its overarching purpose clear. The second
bullet point is similar to a rule found lawful in Lutheran
Heritage Village-Livonia, above at 646, 654 (“using abu-
sive or profane language”). See also Costco Wholesale
Corp., 358 NLRB 1100 (2012), which issued after the
judge’s decision, finding lawful a rule requiring employ-
ees to use “appropriate business decorum” in communi-
cating with others. As did the judge, we find that rea-
sonable employees would construe the second bullet
point as merely requiring that they comport themselves
with “general notions of civility and decorum.”10
The Freedom of Association Policy
In exceptions, the Respondent argues that the judge, in
finding certain rules unlawful, erred by failing to consid-
er those rules in the context of the handbook’s freedom
of association (FOA) policy. The policy states, among
other things, that “during union organizing campaigns,
management shall support the employee’s individual
right to choose whether to vote for or against union rep-
resentation without influence or interference from man-
agement.” The Respondent argues that this policy in-
forms all of its handbook provisions and precludes us
from finding that employees would reasonably read any
of the challenged work rules as unlawfully restricting
their Section 7 rights.
We agree that an employer’s express notice to em-
ployees advising them of their rights under the Act may,
in certain circumstances, clarify the scope of an other-
wise ambiguous and unlawful rule. In our view, howev-
er, inclusion of the FOA policy in the handbook under
the circumstances presented here does little to ensure that
employees would not read otherwise overbroad rules as
restricting their Section 7 rights.11 First, the policy is too

Laughlin did not define abusive or insulting language or conduct, the
Board found that they could reasonably be interpreted as barring lawful
union organizing propaganda, 330 NLRB at 295.
10 In disagreement with the Chairman (see fn. 9, above), we find
Flamingo Hilton-Laughlin, above, distinguishable because the language
at issue in the rule here is sufficiently defined by its context.
11 While Member Johnson agrees with his colleagues that, under the
instant circumstances, the FOA policy does not insulate the Respondent
from liability for the handbook rule violations, he acknowledges the
Respondent’s good-faith effort to respect and safeguard important
individual and employee rights. He notes, moreover, that while the
placement of a savings clause in relation to handbook rules may impact
its effect, he does not weigh that consideration as heavily as do his
colleagues here. Finally, while the policy specifically references pro-
tection of employee organizational activity, Member Johnson believes
that in some circumstances employees would reasonably view this as
signaling the employer’s respect for protection of other Sec. 7 rights.
That can hardly be the case here, however, where the Respondent’s
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
narrow, focusing solely on union organizational rights.
An effective “safe harbor” provision of this kind, also
referred to as a “savings clause,”12 should adequately
address the broad panoply of rights protected by Section
7. Second, the policy’s placement in the handbook is
neither prominent nor proximate to the rules it purports
to inform. The 3-page policy begins on page 20 of the
73-page handbook, but the employee personal conduct
rules at issue do not begin until page 33. The policy does
not expressly reference those rules, and the rules do not
expressly reference the policy. Finally, because we find
that the Respondent has committed unfair labor practices
that contradict the policy—specifically, the overbroad
union-solicitation violations discussed above—it follows
that the freedom of association policy cannot insulate the
Respondent from liability. Certainly, the Respondent’s
employees, once aware of these violations in response to
union organizing, would not reasonably read the policy
as a safeguard of their Section 7 rights.
ORDER
The Respondent, First Transit, Inc., Phoenix, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining an overly broad and
discriminatory rule prohibiting protected employee/union
representative meetings in exterior nonwork areas of the
Respondent’s facility.
(b) Restricting protected activity by disbanding or oth-
erwise discouraging protected employee meetings during
nonworktime and in nonwork areas.
(c) Restricting employees’ Section 7 right to discuss
wages with other employees.
(d) Maintaining an overly broad rule that prohibits dis-
closure of “any Company information,” including wage
and benefit information as contemplated by the cross-
referenced Acceptable Use Policy, for any purpose other
than to perform job duties or further company-sponsored
activities without written authorization.
(e) Maintaining an overly broad rule that prohibits em-
ployees from making statements about a work-related
accident “to anyone except the police or Company offi-
cials.”
(f) Maintaining an overly broad rule that prohibits em-
ployees from making “false” statements concerning the
Respondent.
(g) Maintaining an overly broad rule that prohibits
employees from participating in “outside activities that

unlawful conduct in relation to union organizing activity belies its
adherence even to those Sec. 7 rights specifically referenced.
12 See Ingram Book Co., 315 NLRB 515, 516 (1994).
are detrimental to the Company’s image or reputation, or
where a conflict of interest exists.”
(h) Maintaining an overly broad rule that prohibits
employees from conducting themselves “during non-
working hours in such a manner that the conduct would
be detrimental to the interest or reputation of the Compa-
ny.”
(i) Maintaining an overly broad rule that prohibits em-
ployees from being “present at a Company location while
not performing authorized services or without express
permission.”
(j) Maintaining an overly broad rule that prohibits em-
ployees from “[p]osting, circulating or distributing writ-
ten or printed material without authorization from the
manager.”
(k) Maintaining an overly broad rule that prohibits
“[d]iscourteous or inappropriate attitude or behavior”
toward “other employees.”
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, rescind
and/or revise the rules set forth in paragraphs 1(a) and (c)
through (k) of our Order, above.
(b) Furnish all employees at all of the Respondent’s
facilities nationwide with (1) inserts for the current em-
ployee handbook that advise that the unlawful rules have
been rescinded, or (2) the language of lawful rules on
adhesive backing that will cover or correct the unlawful
rules; or (3) publish and distribute a revised employee
handbook that does not contain the unlawful rules.
(c) Within 14 days after service by the Region, post at
all of its facilities nationwide, copies of the attached no-
tice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FIRST TRANSIT, INC. 623
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by Respondent at any
time since August 2009.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT make and/or maintain overly broad rules
that restrain you in the exercise of the rights set forth
above by:
Prohibiting protected employee/union representa-
tive meetings in nonwork areas of our facility.
Prohibiting employees from discussing wages
with other employees.
Prohibiting employees from disclosing “any
Company information,” including wage and benefit
information as contemplated by our Acceptable Use
Policy, for any purpose other than to perform job du-
ties or further company-sponsored activities without
written authorization.
Prohibiting employees from making statements
about work-related accidents “to anyone except the
police or Company officials.”
Prohibiting employees from making “false”
statements concerning the Company.
Prohibiting employees from participating in “out-
side activities that are detrimental to the Company’s
image or reputation, or where a conflict of interest
exists.”
Prohibiting employees from conducting them-
selves “during non-working hours in such a manner
that the conduct would be detrimental to the interest
or reputation of the Company.”
Prohibiting employees from being “present at a
Company location while not performing authorized
services or without express permission.”
Prohibiting employees from “[p]osting, circulat-
ing or distributing written or printed material with-
out authorization from the manager.”
Prohibiting “[d]iscourteous or inappropriate atti-
tude or behavior” toward “other employees.”
WE WILL NOT disband or otherwise discourage protect-
ed employee meetings during nonworktime and in non-
work areas.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days, rescind and/or revise the
overly broad rules (as promulgated orally or as main-
tained in our employee handbook) described above.
WE WILL furnish all employees with (1) inserts for the
current employee handbook that advise that the unlawful
rules have been rescinded, or (2) the language of lawful
rules on adhesive backing that will cover or correct the
unlawful rules, or (3) publish and distribute revised
handbooks that do not contain the unlawful rules.
FIRST TRANSIT, INC.
David Kelly, Esq., for the General Counsel.
Frederick C. Miner, Esq. (Littler Mendelson, P.C.), of Phoenix,
Arizona, for the Respondent.
DECISION
I. STATEMENT OF THE CASE
LANA PARKE, Administrative Law Judge. Pursuant to charg-
es filed by Amalgamated Transit Union Local #1433, AFL–
CIO (the Union), the Regional Director for Region 28 of the
National Labor Relations Board (the Board) issued an order
consolidating cases, consolidated complaint and notice of hear-
ing (the complaint) on May 28, 2010.1 The complaint alleges
that First Transit, Inc. (the Respondent) violated Section 8(a)(1)
of the National Labor Relations Act (the Act). This matter was
tried in Phoenix, Arizona, on November 8–9.

1 By order dated October 29, 2010, the General Counsel severed
Case 28–CA–022916 from Case 28–CA–023017 and withdrew pars. 6
and 8 of the complaint. The conduct alleged in pars. 5 and 7 remains at
issue. All dates herein are 2010, unless otherwise specified.
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ISSUES
A. Did the Respondent violate Section 8(a)(1) of the Act by
orally promulgating and maintaining a rule prohibiting employ-
ees from discussing their wages and pay rates?
B. Did the Respondent violate Section 8(a)(1) of the Act by
orally promulgating and maintaining an overly broad and dis-
criminatory rule prohibiting employees from meeting with un-
ion representatives at the Respondent’s facility.
C. Did the Respondent violate Section 8(a)(1) of the Act by
threatening its employees with unspecified reprisals by telling
them they were not allowed to meet with union representatives.
D. Did the Respondent violate Section 8(a)(1) of the Act by
threatening its employees with unspecified reprisals by telling
them that the Respondent would call the police if union repre-
sentatives did not leave the Respondent’s facility.
E. Did the Respondent violate Section 8(a)(1) of the Act by
maintaining overly broad employment rules that interfered
with, restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act.
III. JURISDICTION
At all material times, the Respondent, a Delaware corpora-
tion, has operated a local passenger bus transit system in Phoe-
nix, Arizona, where it also maintains an office and place of
business. During the 12-month period ending February 24,
2010, the Respondent, in conducting its business operations
derived gross revenues in excess of $250,000 and purchased
and received at the Respondent’s facility goods and materials
valued in excess of $50,000 directly from points outside the
State of Arizona. I find that at all material times the Respond-
ent has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
IV. FINDINGS OF FACT
Unless otherwise explained, findings of fact herein are based
on party admissions, stipulations, and uncontroverted testimony
regarding events occurring during the period of time relevant to
these proceedings. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Respondent, I find
the following events occurred in the circumstances described
below during the period relevant to these proceedings:
A. The Respondent’s Business
The Respondent provides municipality transportation ser-
vices in the United States, Europe, and Canada. Contracting
municipalities provide transit vehicles and physical facilities;
the Respondent provides maintenance and operational labor.
On December 3, 2007, the Respondent began operating the
West Transit facility in Phoenix, Arizona. About 400 employ-
ees worked at the West Transit facility, 24 of whom were vehi-
cle mechanics.
In addition to mechanics, the Respondent employed drivers,
fuelers, and cleaners at the West Transit facility. The drivers,
fuelers, and cleaners were represented by the Union and cov-
ered by a collective-bargaining agreement for the term of July
1, 2008, through June 30, 2011 (the drivers/fuelers/cleaners
agreement). Robert Bean (Bean) served as president of the
Union in 2010 and had general responsibility for union over-
sight and administration of the drivers/fuelers/cleaners agree-
ment. Dana Kraiza (Kraiza) served as the Union’s recording
secretary,2 and Virginia Mazzone (Mazzone), employed as a
busdriver by the Respondent, was also a union executive officer
at the West Transit Facility.3
The West Transit facility was composed of a number of
buildings, two of which were the maintenance shop or garage
and the operators’ (drivers) building, separated by about 200
feet. Each of the two buildings had an employee breakroom or
lounge. The West Transit facility was a secure, fenced property
with entry through guarded gates. Security guards provided by
the city of Phoenix patrolled the facility. The Respondent is-
sued security badges to authorized entrants, including employ-
ees. Visitors to the facility who did not possess security badges
were expected to check in through the visitors’ office during
the hours of 9 a.m. to 5 p.m. Certain areas of the facility, in-
cluding the visitor and employee parking lots and the area in
front of the administrative building, did not require a security
badge for access.4 During July to November 2009, union rep-
resentatives had security badges permitting access to the facili-
ty. When the Respondent thereafter deactivated the badges at
the request of the city of Phoenix, union representatives were
authorized access to the facility only through the visitors’ office
during business hours.5
The mechanics worked three shifts. The second and third
shifts overlapped during the period of 8:30 p.m. to 4 a.m. Dur-
ing the overlap period, the mechanics had a scheduled meal
break at 1:30 a.m., which they usually took in the mechanics’
lounge.
At all material times the following individuals, holding the
positions set forth opposite their respective names, have been
agents of the Respondent within the meaning of Section 2(13)
of the Act:
Marc Perla — General Manager, Phoenix Facility
Grant Hansen — General Manager of Maintenance
Cecil Blandon — Maintenance Manager
Fernando Mena — Maintenance Supervisor
Beginning in June 2009, the Respondent maintained and is-
sued to employees a written policy entitled “Freedom of Asso-
ciation,” which stated in pertinent part:
[T]he company supports human rights and the individual
rights of its employees, including an employee’s right to asso-

2 During 2010, Kraiza was employed by the Union while on a leave
of absence from the Respondent. During her leave of absence, she had
no security badge for the facility.
3 Mazzone performed her regular work duties at the facility and also
provided liaison between represented employees and the Union with
authority to resolve with management potential employee grievances
arising under the drivers/fuelers/cleaners agreement.
4 Employee parking areas were set off by a low decorative wall and
were otherwise unguarded.
5 Although Bean testified that he accessed the facility after hours on
several occasions after his security badge was deactivated, there is no
evidence his after-hours visits were authorized.
FIRST TRANSIT, INC. 625
ciate themselves with a labor union if they so choose.
Rights: Though not an exhaustive list, management at [the
Respondent] supports an employee’s right to:
Freedom of Association
A secret ballot election
An informed choice
A representative voter turnout
. . . .
[D]uring union organizing campaigns, management shall
support the employee’s individual right to choose whether to
vote for or against union representation without influence or
interference from management.
. . . .
Intimidation or harassment of employees or any other unlaw-
ful activity is strictly prohibited.
B. Relevant Written Employee Rules
Since on or about August 24, 2009, the Respondent has
maintained the following employee rules nationally. The rules
were set forth in the employee handbook distributed to employ-
ees at the Respondent’s West Transit facility:
9.10 COMPUTER SECURITY AWARENESS AND
CONFIDENTIALITY
Employees shall not, without prior written authorization from
their senior manager or director level manager, acquire, use,
access, copy, remove, modify, alter, or disclose to any third
parties, any Company information for any purpose other than
to perform duties required in the fulfillment of job responsibil-
ities or in furtherance of expressly stated Company-sponsored
activities, e.g., United Way. Refer to the Company intranet for
the latest version of the Company’s Acceptable Use Policy.6
9.16 REFERENCES
Employees are prohibited from supplying any information in
response to requests for references unless specifically author-
ized to do so by the HR Department. The Company’s policy
is to only furnish or verify an employee’s name, employment
dates and job title. No other information regarding a current or
former employee will be provided unless the individual first
provides written authorization. Employment and salary in-
formation for creditors, lenders, etc. must be obtained from
the TALX System via The Work Number. . . .
10.02 VEHICLE ACCIDENT AND INCIDENTS
[All accidents and collisions, possible claims of accidents,
damage to equipment, injury and possible injury must be re-
ported in writing as set forth in the rule] . . . Operators must
not make any statements about an accident to anyone except

6 The Acceptable Use Policy, given to employees who have access
to company computers, provides that “company confidential” infor-
mation includes “confidential employee and human resources data
(such as salary and benefit information),” “results of investigations,”
“safety information,” and “marketing and sales programs,” “regardless
of the manner or format in which it is recorded . . . whether orally, via
hard copy printout, on-screen, or via other means.”
the police or Company officials.
11.01 STEALING/THEFT
Conducting activities not related to work during working time
or using company property for activities not related to work
anytime.
11.01 VIOLENCE/FIGHTING/THREATS
Fighting, violence, threats, harassment, intimidation, horse-
play, and other disruptive behavior in the workplace including
oral or written statements, gestures, or expressions that con-
vey a direct or indirect threat of physical or emotional harm.
11.01 DISLOYALTY
Making false, vicious, or malicious statements concerning the
Company or its services, a client, or another employee.
Participation in outside activities that are detrimental to the
company’s image or reputation, or where a conflict of interest
exists.
Conducting oneself during non-working hours in such a man-
ner that the conduct would be detrimental to the interest or
reputation of the Company.
11.02 PERSONAL CONDUCT
Discourteous or inappropriate attitudes or behaviors to pas-
sengers, other employees, or members of the public. Disorder-
ly conduct during working hours.
Profane or abusive language where the language used is un-
civil, insulting, contemptuous, vicious or malicious.
11.02 SECURITY
Being present at a company location while not performing au-
thorized services or without express permission.
11.03 SELLING GOODS OR SERVICES, AND
SOLICITING AND DISTRIBUTION OF LITERATURE
Selling or offering for sale any good or services to other em-
ployees, patrons, or visitors to a Company location or Com-
pany vehicle, except on the authorized bulletin board in the
employee lounge area.
Posting, circulating or distributing written or printed material
without authorization from the manager.
11.04 EMPLOYEE PERFORMANCE
Poor work habits including loafing, wasting time, loitering, or
excessive visiting.
C. Orally Promulgated Employee Rules
On February 10, during the course of a mechanics’ safety
meeting, Fernando Mena (Mena), maintenance supervisor, told
the mechanics they were not allowed to meet with the Union on
maintenance property. In response to a mechanic’s question,
Mena said that mechanics could only meet with union repre-
sentatives off property and on their own time. Another me-
chanic asked if it were permissible to meet union representa-
tives off property on meal breaks, and Mena said it was, so long
as the meeting was off property on employees’ own time.
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In March, when Grant Hansen, in his position as general
manager of maintenance at the Respondent’s facility, conduct-
ed regular performance reviews with employees, he told them
their wage rates were not open for discussion with other em-
ployees.
D. Union Organization Drive Among Mechanics
In February union representatives distributed union authori-
zation cards to mechanics in the mechanics’ breakroom at the
West Transit facility during the mechanics’ 1:30–2 a.m. meal
break. After obtaining signed authorization cards, the Union
filed a petition for election with the Region and planned a meet-
ing with the mechanics for February 11 at the West Transit
facility. The union representatives did not obtain prior permis-
sion from the Respondent to hold the meeting on secured facili-
ty premises. The meeting was scheduled to coincide with the
mechanics’ 1:30–2 a.m. meal break and was to be held in the
operators’ rather than the mechanics’ breakroom.7
Shortly before 1:30 a.m., Mazzone utilized her security
badge to gain access to the facility, and Bean, Kraiza, and Maz-
zone entered the West Transit facility to wait outside the
maintenance department. When the mechanics took their meal
break, the union representatives directed interested mechanics
to follow them to the operators’ breakroom, which Mazzone
accessed with her security badge. About 15 mechanics joined
the union representatives in the operators’ breakroom where
Bean addressed the group.
Maintenance manager, Cecil Blandon (Blandon), and Mena
were both working at the West Transit facility in the early
hours of February 11. At about 1:30 a.m., Mena told Blandon
that mechanics had left the maintenance building for the opera-
tions building. Blandon and Mena went to the operations build-
ing where they found Bean addressing a group of mechanics
while Kraiza and Mazzone watched. Blandon drew Kraiza and
Mazzone aside and told them “you guys” have to leave” and
“the Union can’t be on property.”8 Kraiza said he needed to
speak to Bean. Blandon moved to where Bean was talking to
the mechanics and said, in the hearing of all present, “This
meeting is finished. You guys gotta leave.”9 Kraiza told Blan-
don that she and Mazzone were on the company seniority list
and were employees, to which Blandon did not respond.

7 Mazzone originally heard the meeting was going to be in the me-
chanics’ lounge. Kraiza or Bean thereafter told her that the group
would not be allowed to meet there, and the meeting would take place
in the operators’ lounge. The Respondent has no rule prohibiting the
mechanics’ use of or presence in either the mechanics’ or the operators’
lounge.
8 Blandon included Mazzone in the restriction because “she was
there for union business. They were all there for union business, not
there as an employee of the company.”
9 There is little dispute as to this part of the interaction between
Blandon and the union representatives, which is based on an amal-
gamation of Blandon, Kraiza, and Bean’s testimonies. Kraiza also
described Blandon as saying to Bean, “This meeting is over; you all
have to leave the property.” Bean testified that he asked Blandon if the
company were denying mechanics the right to form and organize a
union on their own time, to which Blandon replied, “That’s really not
the issue here right now. Perla wants you off the property.”
Shortly after Blandon told Bean “you guys” have to leave,
the mechanics left the operations breakroom, saying they were
going back to the shop. Bean, Kraiza, and Mazzone refused to
leave. Blandon told Bean that if the Union wanted to talk to the
mechanics they could do so off the property, but they had no
authority to conduct that particular meeting.10 Blandon told
Bean that he and Mena would just sit there with the union rep-
resentatives until they decided to leave. There followed a 10-
minute standoff before the union representatives left, during
which Blandon, in response to a query by Bean, said he would
call the police if they didn’t leave.11
On the following day, according to Kraiza, she met with Per-
la in his office and asked him why he had had them removed
from the property the preceding day. Perla said it was because
union representatives come into the company and promise em-
ployees higher wages and the union has ruined corporate Amer-
ica. Perla said the Union could meet with the mechanics any-
time, as long as it was off property. Perla testified that alt-
hough he told her the Union did not have rights to access the
property, he “didn’t think” he had said he was opposed to union
organization among the mechanics, and he did not recall telling
her that unions were ruining corporate America, but as he did
joke around with Kraiza, it was “possible it was brought up.” I
accept Krause’s testimony, which was forthright and not clearly
contradicted.
V. DISCUSSION
A. Legal Principles
Section 7 of the Act provides that employees have the right
to engage in union activities or other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion. Section 8(a)(1) of the Act provides: “It shall be an unfair
labor practice for an employer to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
section 7.”
The Board utilizes the following framework for evaluating
employer rules affecting employees: it must first be determined
if the rule explicitly restricts Section 7 activity, which renders
the rule unlawful. If it does not, the circumstances must be
evaluated to determine whether: (1) employees would reasona-
bly construe the language of the rule to prohibit Section 7 activ-
ity; (2) the rule was promulgated in response to Section 7 activ-
ity; or (3) the rule has been applied to restrict the exercise of
Section 7 rights.12 If the answer to any of the above is affirma-
tive, the rule infringes on employee rights under the Act and is
therefore unlawful unless the employer articulates and estab-

10 Blandon said he told Bean he could continue the meeting with
employees in “a public place,” by which Blandon meant to exclude the
facility’s parking lots.
11 I found Blandon’s testimony about events occurring after the me-
chanics left to be clear and forthright, and I credit it, including testimo-
ny that his statement about calling the police was made outside the
mechanics’ presence.
12 Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and
restated in NLS Group, 352 NLRB 744, 745 (2008), incorporated by
reference into 355 NLRB 1154 (2010).
FIRST TRANSIT, INC. 627
lishes a legitimate and substantial business justification for the
rule that outweighs the infringement on employee rights.13
In considering the lawfulness of employer communications
to employees, the Board applies the “objective standard of
whether the remark tends to interfere with the free exercise of
employee rights. The Board does not consider either the moti-
vation behind the remark or its actual effect.14
B. Orally Promulgated Restriction on Meetings
with Union Representatives
The complaint alleges that on February 10, the Respondent,
through Mena, orally promulgated and since then has main-
tained an overly broad and discriminatory rule prohibiting em-
ployees from meeting with union representatives at the Re-
spondent’s facility at any time. During a February 10 safety
meeting, Mena told mechanics they could not meet with the
Union on facility property but were restricted to meeting with
union representatives off property and on their own time.
The Respondent’s off-duty employees are permitted in the
facility’s exterior, nonwork areas such as its parking lots.
Mena’s February 10 restriction against employees meeting with
union representatives on facility property was so broad as to
include all property including parking and other nonwork areas.
Focusing as it did on meetings with union representatives, the
rule pronounced by Mena explicitly restricted Section 7 activi-
ty. Even if it did not, employees would reasonably construe the
restriction to prohibit Section 7 activity in nonwork areas. The
Respondent has presented no legitimate or substantial business
justification for restricting Section 7 activity in the facility’s
nonwork areas; accordingly, the Respondent violated Section
8(a)(1) of the Act when Mena promulgated a discriminatory
and overly-broad rule prohibiting employee/union-repre-
sentative meetings in nonwork areas.
C. The February 11 Meeting
In the early hours of February 11, without having obtained
prior permission from the Respondent to meet with employees
on secured facility premises, union representatives, Bean and
Kraiza, facilitated by employee/union officer Mazzone, surrep-
titiously entered the secured area of the facility to meet with the
Respondent’s mechanics in the operations breakroom during
their 1:30–2 a.m. meal break.
Shortly after the meeting began, Blandon interrupted it. Af-
ter speaking briefly with Kraiza and Mazzone, Blandon said in
the hearing of the assembled mechanics, without addressing
any particular persons, “This meeting is finished. You guys
gotta leave” or, as also recalled, “This meeting is over; you all
have to leave the property.” After the mechanics left the opera-
tions breakroom, Blandon spoke with the union representatives,
including Mazzone, telling them, inter alia, that he would call
the police if they didn’t leave.
The General Counsel correctly acknowledges that the Re-
spondent may have properly sought to limit Bean’s and Krai-
za’s access to the West Transit facility on February 11. The
Supreme Court has held that employers may lawfully deny

13 Ibid; see also, e.g., Caesar’s Palace, 336 NLRB 271 (2001);
Phoenix Transit System, 337 NLRB 510 (2002).
14 Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
workplace access to nonemployee union agents to pursue or-
ganizational activities so long as “reasonable efforts by the
union through other available channels of communication”
would enable them to reach employees with the union's mes-
sage.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956). No party contends the Union lacked available commu-
nication channels to disseminate the Union’s message to the
mechanics outside the workplace or that the Respondent’s re-
strictions on nonemployee access to secured areas were dis-
criminatory.15 In the absence, therefore, of a legally sufficient
justification for access by the union representatives, the Re-
spondent had a right to exclude the unauthorized access of
Bean and Kraiza to the secured facility property and to warn
them that it would seek the assistance of police authorities to
have them removed if they refused to leave.16
The General Counsel argues, however, that Blandon’s com-
munications to the assembled mechanics and union representa-
tives on February 11 went beyond a legitimate curtailment of
nonemployee access to property. The General Counsel con-
tends that Blandon’s orders to break up the meeting were so
broadly expressed that “they prohibited employees from meet-
ing with any union representative—employee or non-employee,
authorized to be on property or not—at any time on any part of
the West Transit facility.”
The Respondent acknowledges that “as a result of Mr. Blan-
don's directive to end the [February 11] meeting, the employees
returned to their work area.” The Respondent argues, however,
that Blandon’s statements were not unlawful, as they contained
no threats, the mechanics were familiar with facility-access
rules, the application of which Mena had explained earlier that
night, and they demonstrated their understanding of the rules by
returning to work rather than leaving the property.
As explained above, Mena’s February 10 safety-meeting
caution to mechanics about not meeting with the Union on
maintenance property was an infringement of their Section 7
right to meet on exterior or public-accessible areas of the facili-
ty. Similarly, Blandon’s February 11 pronouncement that the
mechanics’ meeting with union representatives was over and
that all had to leave was overbroad. It is true, as the Respond-
ent points out, that the mechanics did not think Blandon’s order
required them to abandon their work or leave the facility, but
that is not the only consideration here. Blandon’s all-
encompassing announcement would, particularly in light of
Mena’s earlier-announced restrictions, reasonably cause the
mechanics to believe they could not, even in the absence of

15 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). Although Per-
la may have had animus toward the Union’s organizational efforts
among the mechanics, as reflected by his February 12 conversation
with Kraiza, his attitude alone cannot turn nondiscriminatory re-
strictions into discriminatory ones.
16 See MetFab, Inc., 344 NLRB 215, 221 (2005) (no exceptions
filed to ALJ finding that employer did not violate the Act by calling
police to investigate whether union picketing and handbilling en-
croached on its private property); North American Pipe Corp., 347
NLRB 836, 847 (2006) (no exceptions filed to ALJ finding that prohib-
iting union literature-distribution in company parking lot was unlaw-
ful), cited by the General Counsel, is inapposite to this question, as it
involved enforcement of an unlawful access policy.
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nonemployee union representatives, continue the meeting in the
operations breakroom and, further, could not continue the meet-
ing in the facility’s nonwork areas with union representatives
present. Such constraints are impermissible when, as noted, the
Respondent has presented no legitimate or substantial business
justification for so restricting Section 7 activity; accordingly,
the Respondent violated Section 8(a)(1) of the Act when Blan-
don disbanded the February 11 meeting.
D. Orally Promulgated Rule Prohibiting Employees
from Discussing Wages
In March, Maintenance General Manager Grant Hansen told
employees during their performance reviews that their wage
rates were not open for discussion with other employees. Em-
ployees have a protected right to discuss and distribute infor-
mation regarding wages, hours, and other terms and conditions
of employment.17 Hansen’s caution explicitly restricted em-
ployees’ Section 7 right to discuss wages and thereby violated
Section 8(a)(1) of the Act.
E. Employee Handbook Provisions
The General Counsel argues that the employee handbook
rules maintained by the Respondent violated Section 8(a)(1)
even absent enforcement, as employees would reasonably con-
strue the rules to prohibit Section 7 activity, which would rea-
sonably tend to chill employees’ exercise of their Section 7
rights. The Respondent contends that a reasonable reading of
the rules, particularly in light of the Respondent’s Freedom of
Association policy, could not be construed to improperly inter-
fere with employees’ Section 7 rights.
1. Rule 9.10—Computer Security Awareness
and Confidentiality
Rule 9.10 prohibits disclosure of any company information
for any purpose other than to perform job duties or further
company-sponsored activities without written authorization. A
reasonable employee is likely to construe the proscription to
include information about terms and conditions of employment
including wage and benefits information, which inclusion the
Respondent’s Acceptable Use Policy clearly contemplates.
Moreover, Hansen’s March warning that wage rates were not to
be discussed with other employees could only have emphasized
that the Respondent’s restriction on disclosure of company
information included employee benefit information. Such a
restriction violates Section 8(a)(1) of the Act. See Mediaone of
Greater Florida, Inc., supra; Double Eagle Hotel & Casino,
supra.
2. Rule 9.16–References
Rule 9.16 prohibits employees from supplying unauthorized

17 NLS Group, supra at 745 (rule prohibiting disclosure of employ-
ment terms including compensation, to other parties unlawful, as em-
ployees “reasonably would construe it to prohibit activity protected by
Section 7”); Mediaone of Greater Florida, Inc., 340 NLRB 277, 281
(2003); Double Eagle Hotel & Casino, 341 NLRB 112, 115 fn. 14
(2004); Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976)
(dissatisfaction with wages and benefits is the “grist” and “sinew” for
concerted action); Mobile Exploration & Producing U.S., Inc., 323
NLRB 1064, 1068 (1997), enfd. 156 F.3d 182 (5th Cir. 1998).
information “in response to requests for references,” and sets
forth company policy regarding employment and salary infor-
mation the company will furnish to “creditors, lenders, etc.”
The General Counsel argues the rule is ambiguous and over-
broad because it may be reasonably construed to prohibit em-
ployees from providing information about their coworkers even
if they are not purporting to speak on Respondent’s behalf. The
Respondent contends that section 9.16 applies to requests for
employment references by prospective employers and in no
way restricts employees' protected rights to discuss or dissemi-
nate wage and benefit information. The Respondent also ar-
gues the rule is necessary to avoid tort claims based on attribu-
tion to the company of unauthorized employment references.
Rule 9.16 does not, as the Respondent suggests, specifically
limit “requests for references” to those coming from prospec-
tive employers but has a broader thrust. However, the Board
requires the trial judge to give a rule a reasonable reading, to
refrain from reading particular phrases in isolation and to avoid
improper presumptions about interference with employee
rights. Lutheran Heritage Village-Livonia, supra at 646. With
that caution in mind, it is appropriate to find that a reasonable
employee is likely to understand from rule 9.16 in its entirety
that the proscription is limited to information sought by an
entity regarding a specific employee for the purpose of granting
or withholding some advantage to the employee. Such a re-
striction would not impede an employee’s discussion of wages
and benefits inter-employee or with a nonemployee party, such
as a labor organization, so long as the information was not pur-
ported to bear the Respondent’s imprimatur. Since the Re-
spondent has articulated a legitimate and substantial business
justification for the rule that outweighs any speculative in-
fringement of employee rights, the rule does not violate Section
8(a)(1) of the Act, and I shall dismiss that complaint allegation.
3. Rule 10.02—Vehicle Accident and Incidents
Rule 10.02 sets forth the procedures that employees involved
in vehicular accidents must follow. The rule prohibits opera-
tors involved in an accident from “mak[ing] any statements
about an accident to anyone except the police or Company
officials.”
The General Counsel argues that the general “gag rule” im-
posed on making statements about an accident expressly deters
employees from talking to coworkers or union representatives
about accident details and sequelae that may affect employment
terms. Since an accident may result in discipline or otherwise
impact employees’ working conditions, the rule impinges on
Section 7 rights. The Respondent argues that all operators are
represented by the Union and covered by the terms of a collec-
tive-bargaining agreement that specifically protects operators'
rights to discuss accidents or incidents with their representa-
tives and provides grievance procedures for infringement of
rights. In light of the contractual provision, the Respondent
urges, rule 10.02 cannot reasonably be read to interfere with
employee Section 7 rights.
The Board has found imposition of gag rules on discussion
of work conditions, such as those on wages, to be unlawful
restrictions on Section 7 rights. See Ashley Furniture Indus-
tries, 353 NLRB 1255 (2008). Even if rule 10.02 is not an
FIRST TRANSIT, INC. 629
explicit restriction of Section 7 rights, a reasonable employee is
likely to construe the rule as prohibiting protected discussion of
accidents with other employees or union representatives. Cf.
NLS Group, supra. As to the Respondent’s assertion that any
ambiguity attaching to rule 10.02 is effectively resolved by
provisions of the collective-bargaining agreement, the mere
maintenance of such an unlawful rule serves to inhibit employ-
ees from engaging in otherwise protected activity. Lafayette
Park Hotel, 326 NLRB 824 at 825, 827 (1998); Cintas Corp.,
344 NLRB 943, 946 (2005). Further, the existence of lawful
provisions does not cure an unlawful rule; rather two facially
inconsistent rules create an ambiguity that must be resolved
against the Respondent, as the drafter of the rule. See Mediao-
ne of Greater Florida, Inc., 340 NLRB 277, 277 fn. 4 (2003).
Accordingly, that portion of rule 10.02 that prohibits employee
statements about an accident to anyone except the police or
company officials violates Section 8(a)(1) of the Act.
4. Rule 11.01—Stealing/Theft
Rule 11.01 prohibits the use of company property for non-
work activities at any time and precludes employees from con-
ducting nonwork activities only during “working time.” It is
well settled that an employer may lawfully prohibit non-work
activities during working time. See Stevens Construction
Corp., 350 NLRB 132, 134 fn. 13 (2007), citing Our Way, 268
NLRB 394 (1983). Further, the Board instructs that employees
have no statutory right to use an employer’s equipment for
Section 7 activity. See Guard Publishing Co., 351 NLRB
1110, 1114 (2007). While an employer has a right to impose
some restrictions on employees' statutory right to engage in
protected activity, such restrictions must be clearly limited so
as not to interfere with employee rights to engage in protected
activities on their own time in nonwork areas. See Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Here, employ-
ees may reasonably construe the words “using company proper-
ty” to encompass the use of facility areas where employees may
congregate during non-working time and where their right to
engage in union or other protected activities may not be re-
stricted. See Crowne Plaza Hotel, 352 NLRB 382, 384 (2008).
Accordingly, that portion of rule 10.02 that prohibits employees
from using company property for nonwork activities anytime
violates Section 8(a)(1) of the Act.
5. 11.01—Violence/Fighting/Threats
Rule 11.01 prohibits, in part, “fighting, violence, threats,
harassment, intimidation, horseplay, and other disruptive be-
havior in the workplace including oral or written statements,
gestures, or expressions that convey a direct or indirect threat of
physical or emotional harm.”
The General Counsel apparently concedes that the vio-
lence/fighting/threats portion of rule 11.01 does not explicitly
prohibit Section 7 activity but argues that “harassment” and
“other disruptive behavior” are inherently ambiguous and sub-
jective words that may be understood by employees to encom-
pass enthusiastic union solicitation or vigorous work protests.
I cannot agree with the General Counsel that a reasonable
employee would construe rule 11.01 to be a restriction on Sec-
tion 7 activities. The Board has found lawful a rule that prohib-
ited “any type of conduct, which is or has the effect of being
injurious, offensive, threatening, intimidating, coercing, or
interfering with fellow [employees] or patrons.” Palms Hotel
& Casino, 344 NLRB 1363, 1367 (2005). In doing so, the
Board reasoned the rule was not “so amorphous that reasonable
employees would be incapable of grasping the expectation that
they comport themselves with general notions of civility and
decorum in the workplace.” Id. at 1368. Here the words “har-
assment” and “other disruptive behavior” are set in a context of
prohibited “fighting, violence, threats . . . intimidation, horse-
play,” and employees would reasonably consider the terms
“harassment” and “other disruptive behavior” to signify a simi-
lar level of unacceptable behavior. Accordingly, I conclude
rule 11.01 does not violate Section 8(a)(1) of the Act, and I
shall dismiss that complaint allegation.
6. 11.01—Disloyalty
Rule 11.01 prohibits, in part, (1) making “false, vicious, or
malicious statements concerning the Company or its services, a
client, or another employee,” (2) participating “in outside activ-
ities that are detrimental to the company’s image or reputation,
or where a conflict of interest exists,” or (3) conducting “one-
self during non-working hours in such a manner that the con-
duct would be detrimental to the interest or reputation of the
Company.”
The General Counsel argues that each of the “disloyalty”
prohibitions in rule 11.01 is overbroad and that maintenance of
the prohibitions would reasonably discourage employees from
engaging in untrammeled discussion of protected issues, partic-
ipating in protected “outside” activities,” or risking protected
conduct that the Respondent might perceive to be detrimental to
its interests.
As to the prohibition of “false, vicious, or malicious state-
ments concerning the Company or its services, a client, or an-
other employee,” the Respondent contends the prohibition co-
vers only disloyal statements that are malicious or vicious and
therefore unprotected by the Act. However, the proscriptions
are expressed in the disjunctive; thus, the Respondent bars vi-
cious or malicious or merely false statements about the Compa-
ny. The Board has invalidated similar provisions on grounds
that they prohibited and punished merely “false” statements, as
opposed to maliciously false statements, and were therefore
overbroad.18 In Valley Hospital Medical Center, 351 NLRB
1250 (2007), cited by the Respondent, the Board emphasized
that an employee's public criticism of an employer must evi-
dence “a malicious motive” to lose the Act's protection as an
act of disloyalty,19 and the fact that an employee’s statement is
false, misleading or inaccurate is, alone, insufficient to demon-
strate malicious falsity.20 Accordingly, rule 11.01’s prohibition
against making “false” statements concerning the Respondent is
impermissibly overbroad and violates Section 8(a)(1) of the
Act.

18 American Cast Iron Pipe Co., 234 NLRB 1126 (1978), enfd. 600
F.2d 132 (8th Cir. 1979), followed in Lafayette Park, supra; Cincinnati
Suburban Press, 289 NLRB 966 (1988).
19 Valley Hospital, supra at 1252, citing Richboro Community Men-
tal Health Council, 242 NLRB 1267, 1268 (1979).
20 Valley Hospital, supra at 1252, citing, e.g., Sprint/United Man-
agement Co., 339 NLRB 1012, 1018 (2003).
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent argues that rule 11.01’s prohibition against
participating “in outside activities that are detrimental to the
company’s image or reputation, or where a conflict of interest
exists,” is consistent with one approved by the Board in Lafa-
yette Park, supra at 824 and therefore lawful. The Lafayette
rule forbade “being uncooperative with supervisors, employees,
guests and/or regulatory agencies or otherwise engaging in
conduct that does not support the [employer’s] goals and objec-
tives.” The Board concluded the rule, set in that context, ad-
dressed the legitimate business concern of uncooperativeness
“with supervisors, employees, guests and/or regulatory agen-
cies.” The Board stated that arguable ambiguity arose only by
viewing the phrase “goals and objectives” in isolation and by
attributing to the employer an intent to interfere with employee
rights. The instant rule is different from the Lafayette rule.
Here, no wording provides a context limiting the rule to legiti-
mate business concerns such as uncooperation with supervisors.
Rather, the prohibition bans all outside activities the Respond-
ent may consider to be detrimental to its image or reputation or
to present a conflict with the Respondent’s interests. It would
not be unreasonable for employees to suppose that such outside
activities as public union rallies, informational picketing, or
public expressions of workplace dissatisfaction would, in the
Respondent’s view, fall into “detrimental” or “conflict” of in-
terest categories. Since employees might reasonably view the
rule as restricting protected outside activities, the rule chills
participation in Section 7 activity and violates Section 8(a)(1)
of the Act.
As to rule 11.01’s prohibition against conducting “oneself
during non-working hours in such a manner that the conduct
would be detrimental to the interest or reputation of the Com-
pany,” the Respondent cites Ark Las Vegas Restaurant Corp.,
335 NLRB 1284 (2001), as support for its position that the
prohibition is lawful. In Ark, the company rules forbade: (1)
conducting oneself unprofessionally or unethically, with the
potential of damaging the reputation or a department of the
Company, and (2) participating in any conduct, on or off duty,
that tends to bring discredit to, or reflects adversely on, [the
employee], fellow associates, the Company, or its guests, or
that adversely affects job performance or [employees’] ability
to report to work as scheduled.21 The Board noted that the Ark
rules were largely identical to those found lawful in Lafayette
Park, which was the appropriate precedent to apply.22 The
instant rule is readily distinguishable from those the Board
considered in Lafayette Park and Ark. The rules in both Lafa-
yette Park and Ark contextually limited the prohibited conduct
to unprotected actions: the Lafayette Park rule related to unco-
operative behavior with supervisors and others; the Ark rules
related to unprofessional or unethical behavior or behavior that
brings “discredit to or reflects adversely on” the employee and
others. Set in those contexts, the Lafayette Park and Ark rules
clearly contemplated employee conduct that was intrinsically
improper and unprotected. The instant rule prohibiting non-
working conduct that “would be detrimental to the interest or
reputation of the Company,” does not focus on inherently im-

21 Id. at 1291.
22 Id. at 1285 fn. 2.
proper actions. Rather, the rule could reasonably be read to
comprise any behavior, however proper and protected, that the
Respondent considered detrimental to its interest or reputation.
With the rule focused on the Respondent’s opinion of the con-
duct rather than on generally accepted views of respectable and
principled behavior, the rule is overbroad and violates Section
8(a)(1) of the Act.
7. 11.02—Personal Conduct
Rule 11.02 prohibits discourteous or inappropriate attitudes
or behaviors to passengers, other employees, or members of the
public, disorderly conduct during working hours, and profane
or abusive language where the language used is uncivil, insult-
ing, contemptuous, vicious, or malicious.
The General Counsel argues that rule 11.02–Personal Con-
duct is overbroad and ambiguous and could reasonably be read
to prohibit protected activity. I cannot agree with the General
Counsel that a reasonable employee would construe rule 11.02
as a restriction on Section 7 activities. The restrictions of rule
11.02 are comparable to those found lawful in Palms Hotel &
Casino, supra. Given rule 11.02’s specific description of pro-
hibited behavior, reasonable employees would, as the Board
concluded in Palms Hotel & Casino, understand the Respond-
ent’s expectation to be that “they comport themselves with
general notions of civility and decorum.” Id. at 1368. Accord-
ingly, I conclude that rule 11.02 does not violate Section
8(a)(1) of the Act, and I shall dismiss that complaint allegation.
8. 11.02—Security
Rule 11.02 prohibits employees from being present at a
company location while not performing authorized services or
without express permission.
An employer’s restrictions on employees' statutory right to
engage in protected activity must be clearly limited so as not to
interfere with employees' rights to engage in protected activities
on their own time in nonwork areas. See Republic Aviation
Corp. v. NLRB, supra. The Board considers that, except where
justified by business reasons, a rule that denies off-duty em-
ployees entry to parking lots, gates, and other outside nonwork-
ing areas will be found invalid.23 Here, employees may reason-
ably construe the words “company location” to encompass
outside nonworking areas where employees may congregate
during nonworking time and where their right to engage in
union or other protected activities may not be restricted. See
Crowne Plaza Hotel, supra. Further, a rule that requires em-
ployees to secure permission from their employer before engag-
ing in protected concerted activities on their free time and in
nonwork areas is unlawful. Teletech Holdings, Inc., 333 NLRB
402, 403 (2001). Accordingly, rule 11.02, insofar as it prohibits
employees from being present at a company location while not
performing authorized services or without express permission,
violates Section 8(a)(1) of the Act.
9. Rule 11.03—Selling Goods or Services;
Soliciting and Distribution of Literature
Rule 11.03 prohibits employees from (1) selling or offering

23 Tri-County Medical Center, 222 NLRB 1089 (1976), followed in
Continental Group, Inc., 353 NLRB 348, 350 (2008).
FIRST TRANSIT, INC. 631
for sale any goods or services to other employees, patrons, or
visitors to a company location or company vehicle, except on
the authorized bulletin board in the employee lounge area and
(2) posting, circulating, or distributing written or printed mate-
rial without authorization from the manager.
The General Counsel argues that the second part of rule
11.03 is a presumptively invalid no-distribution rule and that
the first part of rule 11.03 must be read in context with the no-
distribution rule, rendering it similarly over-broad. However,
since the two rules are functionally and comprehensibly dis-
crete, they are appropriately considered separately.
An employer has a right to limit employees’ proffering of
goods or services at the workplace. There being no evidence
the Respondent promulgated part one of rule 11.03 in response
to union or protected activity or has enforced it in a manner
calculated to restrict employees’ protected activity, there is no
basis for finding it infringes on employees’ Section 7 rights.
See Lafayette Parke, supra at 826 (relying in part on the ab-
sence of such evidence to find a rule did not violate the Act).
Accordingly, I conclude that part one of rule 11.03 does not
violate Section 8(a)(1) of the Act, and I shall dismiss the com-
plaint allegation relating thereto.
As for part two of rule 11.03, while an employer has a right
to impose some restrictions on employees' statutory right to
engage in union solicitation and distribution, such restrictions,
must be clearly limited so as not to interfere with employees'
right to solicit their coworkers on their own time or to distribute
literature on their own time in nonwork areas. Republic Avia-
tion Corp., supra 803–805; Our Way, Inc., supra. The require-
ment that employees obtain preauthorization for the dissemina-
tion of any written or printed material clearly infringes on em-
ployees’ right to distribute union or other protected literature on
their employer's premises during nonwork time in nonwork
areas.24 Since part two of rule 11.03 interferes with the exercise
of protected employee rights, it is invalid and violates Section
8(a)(1) of the Act.
10. Rule 11.04—Work Rules and Employee Performance
Rule 11.04 prohibits poor work habits including loafing,
wasting time, loitering, or excessive visiting.
The General Counsel argues that the rule is impermissibly
vague and may reasonably be understood to prohibit employees
from remaining on the Respondent’s premises during nonwork-
times even when engaging in concerted or union activities.
Although the rule is tied to “work habits,” it is not clear from
the language that the prohibitions are limited to employee con-
duct during worktime; rather, they could reasonably be seen as
extending to nonworktime. The Board has found the following
rules violate Section 8(a)(1): prohibiting employees from "loi-
tering in company premises before and after working hours,”25
prohibiting “loitering on company property (the premises)
without permission,” which rule would reasonably chill the
exercise of Section 7 rights,26 and “[l]oitering on Company

24 See ibid; NLRB v. Babcock & Wilcox, 351 U.S. 105, 110–111
(1956); Central Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972).
25 Palms Hotel & Casino, supra at 1363 fn. 3.
26 Lutheran Heritage Village, supra at 655.
property after working hours.”27 Here, the undefined and un-
limited terms “loafing, wasting time, loitering, or excessive
visiting” could lead employees to conclude they could not en-
gage in protected activities with other employees even during
nonworking time in nonworking areas of the Respondent's
property. The Respondent has presented no legitimate or sub-
stantial business justification for such broad restrictions; ac-
cordingly, rule 11.04 interferes with the exercise of protected
employee rights and violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
and in a business affecting 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. The Respondent has violated Section 8(a)(1) of the Act
by the following conduct:
(a) Since February 10, 2010, promulgating and maintaining
an overly broad and discriminatory rule prohibiting protected
employee/union representative meetings in exterior nonwork
areas of the Respondent’s facility.
(b) On February 11, 2010, restricting union activity by dis-
banding and otherwise discouraging a meeting of employees
with union representatives.
(c) In March 2010, restricting employees Section 7 right to
discuss wages with other employees.
(d) Since August 24, 2009, maintaining an overly broad rule
that prohibits disclosure of any company information for any
purpose other than to perform job duties or further company-
sponsored activities without written authorization.
(e) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from making statements about a work-
related accident to anyone except the police or company offi-
cials.
(f) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from using company property for
nonwork activities anytime.
(g) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from making “false” statements con-
cerning the Respondent.
(h) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from participating in “outside activi-
ties that are detrimental to the company’s image or reputation,
or where a conflict of interest exists.”
(i) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from conducting themselves “during
non-working hours in such a manner that the conduct would be
detrimental to the interest or reputation of the Company.”
(j) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from being present at a company loca-
tion while not performing authorized services or without ex-
press permission.
(k) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from posting, circulating or distrib-

27 Tecumseh Packaging Solutions, Inc., 352 NLRB 694 (2008).
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uting written or printed material without authorization from the
manager.
(l) Since August 24, 2009, maintaining an overly broad rule
that prohibits employees from “loafing, wasting time, loitering,
or excessive visiting.” 4. The unfair labor practices set forth
above affect commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found the Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action, as set forth below, designed
to effectuate the policies of the Act. Because the Respondent’s
employee handbook is distributed and maintained at its various
facilities, a nationwide posting remedy is appropriate.28
[Recommended Order omitted from publication.]

28 Guardsmark, LLC, 344 NLRB 809, 812 (2005).