DHL EXPRESS INC.

National Labor Relations Board - Administrative Judge Opinions

Jul 21, 2011

09-CA-046180 (N.L.R.B. Jul. 21, 2011)

JD–41–11
Erlanger, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DHL EXPRESS, INC.
and Cases 9-CA-46180
9-CA-46294
AMERICAN POSTAL WORKERS
UNION, AFL-CIO
Catherine A. Terrell, Esq., and Naima R. Clarke, Esq.,
of Cincinnati, OH, for the Acting General Counsel.
Robert J. Shore, Esq., of Washington D.C.
for the Charging Party.
David A. Kadela, Esq., of Columbus, OH,
for the Respondent-Employer.
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on May
16 and 17, 2011, in Cincinnati, Ohio, pursuant to a consolidated complaint and notice of hearing
(the complaint) issued on March 25, 2011, by the Acting Regional Director for Region 9 of the
National Labor Relations Board (the Board). The underlying charges and amended charges
were filed on various dates in 20101 and 2011 by American Postal Workers Union, AFL-CIO
(the Charging Party or Union) alleging that DHL Express, Inc. (the Respondent or Employer)
has engaged in certain violations of Section 8(a)(1) of the National Labor Relations Act (the
Act). The Respondent filed a timely answer to the complaint denying that it had committed any
violations of the Act.
Issues
The complaint alleges that the Respondent selectively and disparately prohibited the
distribution of union literature by employees in a hallway area near the Employer’s office and
cafeteria.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make the
following

1 All dates are in 2010 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The Respondent is a corporation engaged primarily in the international express
forwarding of mail and freight from various facilities located in numerous foreign countries and
throughout the United States, including its facility in Erlanger, Kentucky, the only facility involved
in this proceeding. During the past 12 months, Respondent, in conducting its operations
performed services valued in excess of $50,000 in States other than the Commonwealth of
Kentucky. The Respondent admits and I find that it 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. Background
At all material times, Shawn Swallow has served as the Senior Director of hub
operations at Respondent’s Erlanger, Kentucky facility. Jennifer Miller holds the position of
Respondent’s Security Guard Captain while Christopher Schulkens serves as its Security Guard
Sergeant. Additionally, Paul White holds the position of Respondent’s Senior Human
Resources Manager while Jama Basinger serves as a Human Resources Trainer.
The Respondent is a small package shipping company concentrating on the
International market in Europe and Asia. The Cincinnati (CVG) facility is a spoke in the wheel
for the transportation of freight/packages by air or via truck into Cincinnati where it is sorted by
automation and loaded back into containers for shipment to its final destination. The CVG
facility is the Respondents only hub location in the United States. Once the aircraft land in
Cincinnati they taxi to the CVG facility, located on the airport grounds, for unloading of their
cargo.
Swallow heads a management team of five senior managers who in turn supervise 65
first line supervisors who oversee and supervise the work of approximately 1200 employees.
With the exception of 14 maintenance employees who are represented for collective-bargaining
purposes by the International Brotherhood of Teamsters, the remaining employees are not
represented by any labor organization.2 The Charging Party, for a number of years, has
attempted to organize and represent these employees but to date has not been successful in
this endeavor.
The CVG facility operates on a 24/7 hour basis with a full-time day shift and part-time
evening and early morning shifts.
The majority of Respondents’ employees (6-700) work in the main sort building where
the packages are sorted (R Exh. 2(a)).

2 The Respondent took over the business and the facility of Airborne Express in Wilmington,
Ohio, that was housed in an old air force base. It employed mechanics to service equipment
attendant to its operation who were represented by the Teamsters Union. Due to financial
difficulties, the Respondent abandoned the Wilmington location and relocated in 2009 to its
present CVG hub facility. It retained a maintenance complement of 14 employees when it
relocated to Cincinnati who are still represented by the Teamsters Union.
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B. The Facts
On December 1, employee Vida Manuel, was distributing union literature in the main
hallway at approximately 4:20 a.m.3 Basinger told Manuel that she could not be handing out
flyers in any of the buildings but could go outside to pass them out. Miller informed Manuel of
the same policy. Manuel replied, “That she had observed the Teamsters Union engaging in the
same type of conduct and believed she should be entitled to distribute union literature in the
hallway” (GC Exh. 9).
On December 21, around10:45 p.m., Manuel, James Hamilton, and Robert Woodyard
were passing out union literature in the hallway.4 Miller arrived on the scene and informed the
employees that they could not loiter in the hallway but that they could go to the cafeteria or a
break room to distribute their literature. Woodyard informed Miller that the Teamsters Union
was previously permitted to distribute literature in the hallway. Miller replied that, “there was no
loitering permitted for any of Respondent’s employees.” Miller notified White that the three
employees were reluctant to leave the hallway area, and after White arrived, he advised the
employees that they could not loiter in the hallway while passing out union flyers and literature
(GC Exh. 10).
On February 25, 2011, around 5:00 a.m. Manuel, Woodyard, and Charles Teeters were
standing in the hallway area distributing union flyers and literature to employees. Schulkens
and Basinger informed the three employees that they should move to the break rooms,
cafeteria, or outside if they wanted to loiter for any reason including the distribution of union
literature (GC Exh. 11). Manuel also displayed two signs that urged employees to join the
Charging Party (GC Exh. 8). The signs were placed against the pillars on the hallway wall near
the “F” and “W” depicted on GC Exh. 2, that was adjacent to the location where the employees
were distributing union literature.

C. Discussion
The Board has long held that rules prohibiting distribution of literature are presumed
valid unless they extend to activities during non-working time and in non-working areas. It has
also held that an employer may lawfully prohibit employees from distributing literature in
workareas in order to prevent the hazard to production that could be created by littering the
premises. Stoddard Quirk Mfg. Co., 138 NLRB 615 (1962). However, the Board has also
found, with court approval, that this rule does not apply to a mixed-use area. Transcon Lines,
235 NLRB 1163, 1165 (1978), affd, in pertinent part 599 F.2d 719, (5th Cir. 1979) (employer
failed to meet burden of establishing that distribution, which took place in area used for
recreation as well as work, occurred in a work area or during worktime); Rockingham
Sleepwear, 188 NLRB 698, 701 (1971) (sewing area which is work area for greater portion of
day, but used as lunch area during lunch period, not “work area” within meaning of Stoddard
Quirk for duration of lunch period, but lunchroom where distribution may not lawfully be
prohibited). The concerns for protecting the production process which were at issue in Stoddard
Quirk do not rise to the same level when an employer compromises a work area by permitting
non-work use of it.

3 Manuel was standing in front of the Respondents milestones, depicted by a “U” on GC
Exh. 2, and was handing out union flyers and literature.
4 The three employees were standing in the hallway where the “F” and “W” are depicted on
GC Exh. 2, and were handing out union flyers and literature.
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The General Counsel takes the position that the hallway area is a non-work area, where
employees on their non-work time are privileged to distribute union literature to co-workers.
They further argue that even if the hallway area is not a non-work area, the evidence
establishes that it is a mixed-use area (area used for recreation and some work) privileging the
right of employees to distribute union literature. United Parcel Service, 327 NLRB 317 (1998),
enfd. 228 F.3d 772 (6th Cir. 2000).
The Respondent argues that the hallway area is a work area and its actions in
prohibiting the distribution of union literature is justified based on business necessity, including
security, safety, cleanliness, and production-related considerations.5
The Respondent supports its position that the hallway area is a work area by citing
numerous work related responsibilities.
First, the hallway area is utilized by employees arriving for work after they check-in at the
security area and continue walking through the hallway on there way to their work stations, and
on there exit from the facility at the conclusion of their shifts. Additionally, employees working in
the truck dock area who are assigned to complete additional tasks in the ramp area must walk
through the hallway area to a breezeway where they are picked up by a van for transport to the
ramp area. The Respondent admits, however, that this does not occur on a regular and routine
basis but rather is dictated by the amount of work in the ramp area requiring extra manpower.
The evidence also establishes that there are alternative ways to reach the ramp area that can
be utilized to avoid the hallway and some employees take this route. Lastly, Swallow testified
that there are no conveyor belts in the hallway which is the primary means that Respondent
uses to transport packages nor does freight regularly pass through that area.
Based on these circumstances, I find that the hallway is not exclusively a work area. In
this regard, while employees use the hallway for walking to and from there work areas it is
incidental to the main function of the facility as the evidence establishes that no work (the
sorting of freight or packages) is performed in the hallway area. Santa Fe Hotel & Casino, 331
NLRB 723 (2000) (security, maintenance, and gardening were only incidental to the employer’s
main purpose-housing guests and allowing guests to gamble). Moreover, no evidence was
adduced that the above employees distributed literature to on-duty employees or that the
distribution of the union literature interfered with production or discipline.

Second, the Respondent asserts that the quality control (QC) and shipment recovery
center (SRC) employees’ utilize the hallway when relocating packages. These two sections that
are comprised of 10-15 employees, work together in an effort to address issues of damaged or
mis-directed packages. Normally 3-5 employees are on duty 24/7 in their office that is located
directly off the hallway area. While the entire facility sorts and distributes between 90-100,000
packages on a daily basis, the QC/SRC departments handle packages 4-5 times per week with
an average load of 1-3 packages. On occasions, when it is determined the packages correct
destination or after repairs are made to a damaged package, it is necessary for QC/SRC

5 Respondent’s Employee Handbook states in pertinent part: You are prohibited from
distributing advertising materials, handbills or printed and written literature of any kind in work
areas (GC Exh. 7). With respect to security concerns, Swallow testified that the employees did
not break any Transportation Security Administration (TSA) policies or guidelines when
distributing union literature in the hallway area and White testified that employees were not
hindered in there ingress or egress from the facility.
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employees to physically carry/transport the package through the hallway area and out the front
door for pick-up by a courier. This procedure does not happen on a daily basis and when
packages are transported in this manner, it takes approximately 2-3 minutes from there starting
point to exiting the front door of the facility.
Under these circumstances, I find that the hallway area for QC/SRC purposes should not
be classified exclusively as a work area. Foundation Coal West, Inc., 352 NLRB 147, 150
(2008) (a hallway with doors leading to administrative offices, a warehouse, a training room, and
changing rooms was, at best, a mixed-use area where both socializing and non-production
work, incidental to the employer’s main function, the digging and mining of coal, took place).
Third, the Respondent points out that third party tours are conducted in the hallway area.
In this regard, Swallow testified that while a normal pre-hire/new employee orientation tour or
one to acquire new business could take between 1 and 3 hours, the average time that these
employees spend in the hallway area is between 5-10 minutes. Swallow further stated that
while such tours could occur daily, the majority of times they are held on a less frequent basis.
Accordingly, I reject the Respondent’s position that the holding of tours for employees in
the hallway area for an average of 5-10 minutes in duration on a less frequent basis than once a
day converts the hallway area exclusively into a work area prohibiting the distribution of union
literature.
Fourth, the Respondent argues that it prohibited the distribution of union literature in this
case based on a policy of not permitting employees to loiter in the hallway.6 The fallacy with
this defense is that the Respondent’s employee handbook, in its solicitation and distribution
section, does not address this issue (GC Exh. 7).7
Moreover, the evidence adduced at the hearing establishes that when employees are in
the hallway area they are permitted to use the computer stations during their non-work time8,
are allowed to stop and talk with fellow employees or make cell phone calls, and can watch the
television monitors located in the hallway while conversing with co-workers.
Lastly, Manuel, Hamilton, and Teeters credibly testified that they have never been
informed about a “non-loitering” policy in the hallway area nor have they been presented with
any written rules or regulations to this effect. Wexler Meat Company, 331 NLRB 240, 242
(2000) (employer violates Section 8(a)(1) by implementing a new policy or enforcing a
previously unenforced policy in response to union activity if the policy restricts lawful employee
union activities).

6 During the distribution period on December 1, December 21, and February 25, 2011 that
consumed on each occasion less than 20 minutes, the Respondent did not establish that any of
the union literature/flyers (GC Exh. 5 and 6) caused any disruption nor interfered with the safety
or cleanliness of its facility.
7 While that section of the handbook prohibits non-employees to distribute literature or other
materials for any purpose at any time, unless specifically authorized or sponsored by the
Respondent, no such corresponding policy exists for incumbent employees. Indeed, Human
Resources Manager White acknowledged that employees have never been informed either
orally or in writing that a policy exists prohibiting loitering in the hallway area and the parties
stipulated to this fact.
8 Employees are permitted to use the computers for work purposes, to surf the internet or
check their personal e-mail accounts.
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Fifth, the Respondent asserts that while it has permitted certain authorized events to
take place in the hallway area such as a Wellness Fair (GC Exh. 4) during the week of October
18-22, a Financial Fair (GC Exh. 3) on November 18, a Autism speaks event in early May 2011,
an Education Fair (R Exh. 11) on September 22-23, and the Teamsters Union distribution of
literature once in late 2009 and two additional times prior to the spring of 2010, these functions
are Employer sponsored events in which the organizers sought permission of the Respondent.9
Indeed, the Respondent argues that the Wellness, Financial, and Education Fairs are related to
its fringe benefit package offered to its employees and the Autism event is a charity that the
Respondent has sponsored and its employees have made donations and participated in the
“Walk for Autism.”
Assuming arguendo that the above sponsored events do not violate the Act, there have
been other events held in the hallway area that were permitted to take place. For example, the
Respondent in October 2010 permitted Urban Active to solicit employees to join its gymnasium
at a discounted rate and use the computers in the hallway to sign them up for memberships.
This activity, however, is not part of the Respondent’s employee benefit program. Likewise, a
booth was set-up in the hallway in early January 2011 in which Respondent employees sold
Super bowl raffle tickets,10 and it allowed the distribution in May 2011 of t-shirts and hats by
employees for a race car that was being supported by the Respondent and DHL Global Mail in
the Indianapolis car series races.11 See, Dow Jones & Co., 318 NLRB 574, 574-575 (1995),
enfd. 100 F.3d 950 (4th Cir. 1996) (unpublished) (employer discriminated against union
organizers when it granted access to other non-employee organizations, e.g. weight watchers
and a stop-smoking program).
Additionally, while the Teamsters Union was permitted by a Memorandum of
Understanding (MOU) negotiated with the Respondent (GC Exh. 13) to set-up tables in the
hallway area on three separate occasions to distribute organizational materials and discuss the
benefits of joining their labor organization, the Employer acknowledged that there was no
interference with the conduct of its business nor with the performance of work by its employees
in the hallway area.12
For all of the above reasons, I find that the hallway area is not exclusively a work area in
which the distribution of union literature could be prohibited. Rather, I conclude that the hallway
area is used for recreation as well as some work but the Respondent compromised the hallway
area by permitting non-work use of it, and therefore, I find that the Respondent violated Section

9 See, Lucile Salter Packard Children’s Hospital v. NLRB, 97 F.3d 583, 587-589 (D.C. Cir.
1996) enfg. 318 NLRB 433 (1995) (“no violation of Section 8(a)(1) occurs if the solicitations
approved by the employer relate to the employer’s business functions and purposes” including
informational solicitations relating to benefits that are part of employees’ regular benefit
package).
10 While Respondent witnesses testified that they were not aware of any employees selling
Super bowl raffle tickets, the testimony of employee Teeters to this effect stands unrebutted.
11 Employees were informed the night before that t-shirts and hats would be available the
next day. While the Respondent argues that the t-shirts and hats are a benefit for employees, it
is noted that this is not an official benefit listed in the 2011 benefit package for employees (R
Exh. 12).
12 Swallow testified that if the Charging Party would agree to the same terms as the
Teamsters, he would allow them access to distribute literature in the hallway, an admission that
undermines the Respondent’s position in not permitting the Charging Party to distribute
literature in the same area.
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8(a)(1) of the Act by enforcing its no-distribution rule in the hallway area. I further find that the
Respondent violated Section 8(a)(1) of the Act by permitting the use of the hallway area for the
selling of Super bowl raffle tickets, soliciting employees to join a gymnasium at a discounted
rate, and distributing t-shirts and hats but discriminately prohibited the distribution of union
literature in the same area.

Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(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 violated Section 8(a)(1) of the Act by prohibiting employees from
distributing union literature in a hallway area while permitting non-union literature and other
paraphernalia to be distributed.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
The Respondent, DHL Express, Inc., Erlanger, Kentucky, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Enforcing its no-distribution rule in the hallway area near Respondent’s office
and cafeteria.
(b) Disparately enforcing its no-distribution rule against employees with respect
to their distribution of union literature.
(c) In any like or related manner interfering with, restraining 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 after service by the Region, post at its facility in Erlanger,
Kentucky copies of the attached notice marked “Appendix.”14 Copies of the

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
Continued
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notice, on forms provided by the Regional Director for Region 9, after being
signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt 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. 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 Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent
shall duplicate 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 December 1, 2010.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting 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.
Dated, Washington, D.C. July 21, 2011
_____________________
Bruce D. Rosenstein
Administrative Law Judge
_________________________
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT enforce our no-distribution rules in the hallway area near our office and
cafeteria.
WE WILL NOT discriminatorily enforce our no-distribution rule against employees who are
distributing union literature or other protected publications.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
DHL Express, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
John Weld Peck Federal Building
550 Main Street, Room 3003
Cincinnati, OH 45202-3271
Hours: 8:30 a.m. to 5:00 p.m.
513-684-3686.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE COMPLIANCE OFFICER, at 513-684-3750.
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