Sprint United Management Co.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 397 (N.L.R.B. 1998)

SPRINT/UNITED MANAGEMENT CO. 397
Sprint/United Management Company and Communi-
cations Workers of America, Local No. 7019,
AFL–CIO. Case 28–CA–13599
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
Upon a charge filed March 13, 1996,1 the Regional Di-
rector for Region 28 issued a complaint April 29, 1996,
against the Respondent, alleging that the Respondent
engaged in certain unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the National Labor Relations Act. Copies
of the complaint and notice of hearing were served on the
Respondent and Charging Party.
On October 15, the General Counsel, the Respondent,
and the Charging Party filed a stipulation of facts and a
joint motion to transfer proceedings directly to the
Board. The parties waived a hearing and issuance of a
decision by an administrative law judge and indicated
their desire to submit this case directly to the Board for
findings of fact, conclusions of law, and a decision. The
parties also agreed that the stipulation of facts and exhib-
its would constitute the entire record before the Board.
On November 14, the Board issued an order granting
the motion, approving the stipulation, and transferring
the proceeding to the Board. Thereafter, the General
Counsel and Respondent filed briefs.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Kansas corporation, provides long-
distance telephone services to the public from its facility
in Phoenix, Arizona. During the 12-month period pre-
ceding the execution of the stipulated record, the Re-
spondent purchased and received at its Phoenix, Arizona
facility goods and materials valued in excess of $50,000
directly from points located outside the State of Arizona
and has derived gross revenues in excess of $100,000
from its operations in Phoenix, Arizona. We find that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
The Respondent is engaged in an operation providing
long-distance telephone services to the public. At its
Phoenix, Arizona facility, the Respondent employs ap-
proximately 424 long-distance agents. These employees
work at their respective computer terminals in the Re-
spondent’s designated work area. The Respondent pro-
vides each of these employees with an individual locker
for storing their personal materials. These lockers are
located in a nonworking area of the Respondent’s facil-
ity.

1 All dates hereafter are in 1996 unless stated otherwise.
Each locker is numbered, and has a mail slot located
on its door. Each employee has a key to his or her re-
spective locker. Employees visit the locker area before
and after their shifts, during lunch, and during other
breaks.
A statement about the use of the employee lockers is
included in a script developed by the Respondent for use
in conducting orientation programs for new employees.
The pertinent portion of the script states:

Your locker is for your use only, and is Company
property. You cannot solicit employees by using
their lockers for this purpose.

This statement has never been published or distributed
to the Respondent’s employees. At least two of the Re-
spondent’s employees were not informed of this locker
policy during their orientation.
The Respondent’s employee information book con-
tains the following rule concerning employee solicita-
tion:

To avoid disruption of business activity, Sprint
prohibits solicitation of an employee by another em-
ployee during the working time of either person.
Working time does not include authorized rest
breaks or lunch periods.
Employees are prohibited from distributing
literature in working areas at any time. Persons not
employed by Sprint shall not distribute literature or
solicit employees on company premises at any time
for any purpose. Solicitation or distribution of mate-
rials is permitted for company-sponsored United
Way programs.

The Respondent maintains one or more “blind” or un-
assigned lockers, and periodically inspects these lockers
to check for unauthorized distribution of literature. Since
at least January 1994, only material distributed by the
Respondent has been found in these unassigned lockers.
Since prior to January 1994, employees have deposited
personal notes, private invitations, chain letters, and
Christmas cards in other employees’ lockers.
In October 1995, the Union began an organizing drive
at the Respondent’s facility. During the organizing cam-
paign, the Respondent allowed employee supporters of
the Union to distribute union materials in nonwork areas
of the facility. These employees distributed the materials
directly to other employees and also left them on tables
in the nonwork areas.
326 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398
On February 15 and 16, an employee placed union lit-
erature in each of the employee lockers during nonwork
time. On February 16, Supervisor Laura Blank learned
that the union flyers had been distributed into the lockers.
Thereafter, pursuant to instructions received from Blank,
Supervisors Karen Hay and Jack Forry opened the em-
ployees’ lockers and confiscated the union literature.
Also on February 16, the Respondent posted a letter to
employees from Supervisor Blank. The letter stated in
pertinent part:

This is a reminder about our policy that the lock-
ers we provide are for your use in connection with
your work and we do not permit their use for other
purposes.
We are sorry that your privacy was invaded yet
again by an unsolicited stuffing of material into your
workplace lockers. That was in violation of our pol-
icy, and we removed those materials as soon as you
reported the problem to us. Again, these lockers are
provided to you by the Company and we have al-
ways limited their use to materials that relate to your
work.

On April 19, the Respondent was informed by an em-
ployee that a chain letter had been distributed into em-
ployee lockers. The Respondent asked a number of em-
ployees about the chain letter, and these employees re-
ported that they had not received a chain letter. The Re-
spondent did not attempt to remove any chain letters
from employee lockers.
On April 24, Supervisor Blank told employee Robert
Hogge that she had learned that Hogge had distributed
union literature which listed Hogge’s locker number.
Blank advised Hogge that the distribution was impermis-
sible because such literature would enable employees to
respond to Hogge at his locker.
B. The Parties’ Contentions
The General Counsel contends that the Respondent
violated Section 8(a)(1) of the Act by promulgating a
rule prohibiting employees from using their lockers for
distribution of union materials, and by removing and
confiscating union materials that had been distributed in
employee lockers. The General Counsel contends that
the Respondent’s locker policy constitutes an unlawful
no-distribution rule and that the Respondent disparately
removed and confiscated the union flyers, while allowing
other distributions in the lockers.
The Respondent contends that it is not obligated to al-
low the distribution of union materials into employee
lockers, and thus its rule prohibiting the use of employee
lockers for employee distributions, and its confiscation of
union materials under that rule, is not violative of the
Act. The Respondent further contends that it did not
disparately remove the union flyers from the lockers.
C. Discussion
The promulgation and enforcement of a rule prohibit-
ing union solicitation by employees on company prop-
erty, outside of working hours, is presumed to violate the
Act in the absence of evidence of special circumstances
making the rule necessary in order to maintain produc-
tion or discipline. Republic Aviation Corp. v. NLRB,
324 U.S. 793, 803–804 (1945); and Peyton Packing Co.,
49 NLRB 828, 843 (1943). It is also well settled that
rules prohibiting the distribution of union literature dur-
ing nonworking times in nonworking areas are presump-
tively unlawful. St. Johns Hospital, 222 NLRB 1150
(1976), enfd. in part 557 F.2d 1368 (10th Cir. 1977);
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). In
order to justify the existence of a rule which is on its face
presumptively unlawful, an employer must present suffi-
cient justification to warrant the further curtailment of
employee rights. St. Johns Hospital, supra.
Applying these principles to the instant case, we find,
for the reasons set forth below and in agreement with the
General Counsel, that the Respondent’s rule prohibiting
the distribution of union materials in employee lockers is
violative of Section 8(a)(1) of the Act.
As noted above, the stipulated record establishes that
on February 16, the Respondent announced, through a
letter to employees, that the distribution of union materi-
als into employee lockers was prohibited. Consistent
with this prohibition, the Respondent confiscated distrib-
uted union materials from its employees’ lockers.2 The
lockers are located in an area apart from the designated
work areas, and there is no evidence that employees are
afforded access to the locker area during worktime.
Therefore, because the Respondent’s rule restricts distri-
bution during nonworking time and in nonworking areas,
the rule is presumptively unlawful.
The Respondent contends the rule is necessary to en-
sure that its communications are received by its employ-
ees. There is no evidence in the stipulated record, how-
ever, that the Respondent’s ability to communicate with
its employees would be hindered by allowing employees
to distribute material into the lockers. The mere asser-
tion that a no-distribution rule is intended for a specific
purpose does not prove that it is actually necessary for
that purpose. Times Publishing Co., 231 NLRB 207, 210
(1977), enfd. in part 576 F.2d 1107 (5th Cir. 1978).
Thus, we find that the Respondent has failed to establish
a necessity for the rule that would overcome its presump-
tive invalidity.

2 The stipulated record does not show that the Respondent had in-
formed employees of this policy at some earlier date. Although the
Respondent’s orientation script stated that the use of the lockers for
solicitation was prohibited, the stipulated record fails to show that this
statement was, in fact, communicated to employees. Rather, the record
only shows that two employees do not recall hearing such a statement
during their orientation.
SPRINT/UNITED MANAGEMENT CO. 399
The Respondent also contends that its rule prohibiting
the use of the lockers for employee distributions is
grounded in the Board’s long held doctrine that there is
no statutory right of employees to use an employer’s
bulletin board. See Eaton Technologies, 322 NLRB 848,
853 (1997); Container Corp. of America, 244 NLRB 318
(1979), modified in part 649 F.2d 1213 (6th Cir. 1981);
and Nugent Service, 207 NLRB 158, 161 (1973). We
find this contention unpersuasive.3
An employer that uses a bulletin board as a means of
communication with its employees may have a legitimate
interest in ensuring that its postings can easily be seen
and read and that they are not obscured or diminished in
prominence by other notices posted by employees. Thus,
while an employer may not deny employees access to its
bulletin boards on a discriminatory basis,4 the Board has
long held that it is not unlawful for an employer to re-
serve to itself the exclusive use of its bulletin boards, and
to bar any postings by employees.
Here, however, the Respondent has already ceded the
locker space to the personal use of the employees to
whom the lockers are assigned. Thus, the Respondent’s
conduct is not analogous to circumstances involving an
employer’s assertion of its right to prohibit employees
from using its bulletin board. Rather, it is analogous to
circumstances where the posting of union materials is
prohibited on bulletin boards used by employees for
other purposes.5
In addition to finding the Respondent’s rule unlawful,
we also find that the Respondent violated the Act by re-
moving and confiscating the union flyers from the lock-

3 The Respondent also contends that the right to restrict employee
access to the lockers was implicitly recognized in Cincinnati Enquirer,
279 NLRB 1023 (1986), where the Board found unlawful an em-
ployer’s disparate refusal to allow employee distributions in employee
mailboxes. The Respondent contends that because the Board found
that the disparate restriction of access to an employer’s mail system is
unlawful, it implicitly recognized that a nondiscriminatory broad prohi-
bition similar to the Respondent’s rule would be lawful. We disagree.
The right not to be subjected to disparate treatment is separate from the
right, at issue here, to distribute materials in nonwork areas during
nonwork time. Thus, there is no basis to assume that an employer’s
prohibition of distributions in nonwork areas is lawful merely because
the Board has found unlawful an employer’s disparate treatment of
employee distributions.
4 Container Corp. of America, supra; and Vincent’s Steak House,
216 NLRB 647 (1975).
5 The parties have stipulated that the lockers, which are 10 inches
high, 10 inches wide, and 18 inches deep, are used by employees to
store such things as lunches, personal writing materials, school books,
clothes, bicycle helmets, magazines, and training materials. If the
Respondent chooses to also use the lockers to distribute notices to
employees, it has clearly already assumed the risk that the presence of
other materials, including papers, in the lockers could cause its notices
to be overlooked. Thus, the Respondent cannot legitimately claim that
concern as a reason for refusing to allow employees to put union litera-
ture into the lockers.
Chairman Gould agrees that the bulletin board cases are distinguish-
able. He finds it unnecessary to pass on the continued viability of the
doctrine that there is no statutory right to use an employer’s bulletin
board.
ers. Indeed, the Respondent offers no justification for
this conduct other than that it was enforcing its unlawful
rule. As there is no lawful justification for this conduct,
we find it violative of Section 8(a)(1) of the Act.6
In sum, we find that by announcing to employees on
February 16 that employees were not permitted to dis-
tribute materials in employee lockers, and by confiscat-
ing union materials that had been distributed in the lock-
ers, the Respondent has promulgated and enforced a rule
restricting distribution of literature by employees during
nonworking times and in nonworking areas. We further
find that the Respondent has not shown any legitimate
justification warranting this restriction on employee
rights. Accordingly, we find that the Respondent’s con-
duct violates Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
1. By promulgating a rule prohibiting employees from
using their lockers for any purpose other than their use in
connection with their work, the Respondent violated Sec-
tion 8(a)(1) of the Act.
2. By removing and confiscating union flyers that had
been distributed in employees’ lockers, the Respondent
violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) of the Act, we shall order it to cease and desist
and to take certain affirmative action to effectuate the
policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Sprint/United Management Company,
Phoenix, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating or maintaining rules prohibiting em-
ployees from distributing union literature in employee
lockers during nonwork time.
(b) Removing or confiscating union materials distrib-
uted in employees’ lockers.
(c) 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) Rescind its rule prohibiting employees from dis-
tributing union literature in employee lockers during
nonwork time.
(b) Within 14 days after service by the Region, post at
its facility in Phoenix, Arizona, copies of the attached
6 Because we find the Respondent’s removal and confiscation of the
union flyers constitutes the enforcement of its unlawful rule, we find it
unnecessary to pass on the General Counsel’s contention that the Re-
spondent disparately removed and confiscated the material
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 13, 1996.
(c) 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-

7 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.”
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT promulgate or maintain rules prohibiting
employees from distributing union literature in employee
lockers during nonwork time.
WE WILL NOT remove or confiscate union materials dis-
tributed in employees’ lockers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL rescind our rule prohibiting employees from
distributing union literature in employee lockers during
nonwork time.

SPRINT/UNITED MANAGEMENT COMPANY