Marriott Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 896 (N.L.R.B. 1994)

896
313 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Raley’s, 311 NLRB 1244 (1993), on which the General Counsel
relies, is distinguishable. In Raley’s, the broad remedy was based on
the judge’s finding, to which the Respondent did not except, that the
respondent’s unlawful dress code rule ‘‘applied to its employees at
all its stores.’’ In the instant case, as noted above, the judge made
no finding that the Respondent’s rule applied to any facility other
than the Los Angeles County Museum of Art.
2 For example, had the issue been timely raised, the Respondent
would have been entitled to show the existence of special cir-
cumstances justifying the rule at particular locations.
3 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
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.’’
Marriott Corporation and Hospital and Service
Employees Union Local 399, Service Employees
International Union. Case 31–CA–19652
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On August 17, 1993, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order as modified and set forth in full
below.
No exceptions were filed to the judge’s finding that
the Respondent’s employee handbook contained a rule
unlawfully prohibiting its employees at the Los Angles
County Museum of Art from wearing union insignia
on their attire. The General Counsel, however, excepts
to the judge’s failure to order the Respondent to re-
scind the unlawful prohibition against wearing union
insignia at its Los Angeles County Museum of Art lo-
cation and to publicize the rescission at that facility to
the same extent that the unlawful rule was publicized
there. The General Counsel also excepts to the judge’s
failure to include in the notice to employees the
Board’s customary language setting forth employee
rights under the Act. We find merit in these exceptions
and shall modify the recommended Order accordingly.
The General Counsel further excepts to the judge’s
failure to require the Respondent to rescind the unlaw-
ful prohibition at all the Respondent’s facilities where
the unlawful rule was promulgated and maintained,
and to the judge’s failure to require the Respondent to
post appropriate notices to employees at all those loca-
tions. We find no merit in this exception.
In the proceeding before the judge, the General
Counsel did not allege in the complaint that the Re-
spondent promulgated and maintained an unlawful rule
at other facilities or in any other manner seek an order
applying to all facilities where the unlawful rule may
have been promulgated and maintained. The record
contains no evidence that the rule applied at any other
locations. The General Counsel asserts in his brief that
it ‘‘appears that the Handbook has wide application be-
yond those employed at the Los Angeles County Mu-
seum of Art.’’ While it is true that a reading of the
handbook suggests that its application is not limited
geographically in any way, its ‘‘appearance’’ to the
General Counsel or the Board cannot substitute for
proof.
A Board order must be supported by evidence that
there are violations to be remedied. See Section 10(c)
of the Act. Given the absence of any evidence, finding,
or stipulation that the unlawful rule was promulgated
or maintained at any other of the Respondent’s facili-
ties, we find that the issue of more widespread viola-
tions was not fully litigated.1
In these circumstances, we find that an order extend-
ing to other Respondent facilities would deny the Re-
spondent due process by not allowing it to show the
limits of the application of the handbook containing
the rule or otherwise defend against the necessity for
such a broad order.2 Accordingly, we adopt the judge’s
limitation of the remedial order to the one location at
which a violation was alleged and litigated in this pro-
ceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Marriott Corporation, Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promulgating and maintaining its rule prohibiting
employees from wearing union buttons or insignia.
(b) Interrogating employees about conversations
among union representatives and employees.
(c) Verbally promulgating an overly broad no-solici-
tation rule against talking among employees at work.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its rule contained in its employee hand-
book prohibiting employees at the Los Angles County
Museum of Art from wearing union buttons or insignia
and notify employees that the rule has been rescinded
to the same extent that the unlawful rule was pub-
licized at that location.
(b) Post at its Los Angeles County Museum of Art
premises in Los Angeles, California, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
897MARRIOTT CORP.
tice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
One of the rights guaranteed to employees by Section
7 of the National Labor Relations Act is the right to
wear union buttons or insignia free from employer pro-
hibition or restriction absent special circumstances re-
quiring such regulation for the preservation of dis-
cipline in the employer’s establishment.
WE WILL NOT promulgate and maintain a rule pro-
hibiting employees from wearing union buttons or in-
signia.
WE WILL NOT interrogate employees about conversa-
tions among union representatives and employees.
WE WILL NOT verbally promulgate an overly broad
no-solicitation rule against talking among employees at
work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed under Section 7 of the Act.
WE WILL rescind our unlawful rule contained in the
employee handbook prohibiting you from wearing
union buttons or insignia and notify you that the rule
has been rescinded to the same extent that the unlawful
rule was publicized.
MARRIOTT CORPORATION
Ann L. Weinman, Esq., for the General Counsel.
Michael C. Ford and Carlton J. Trosclair, of Bethesda,
Maryland, for the Respondent.
Jono Shaffer, of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried at Los Angeles, California, on May 19, 1993. The
charge was filed by Hospital and Service Employees Union
Local 399, Service Employees International Union (the
Union) on November 27, 1992, and the complaint was issued
on February 26, 1993. The primary issue is whether Marriott
Corporation (Respondent) prohibited discussion among em-
ployees about the Union and interrogated an employee con-
cerning union conversation, while maintaining a written rule
against the wearing of insignia, in violation of Section
8(a)(1) of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses, and on consideration of briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation having an office and
place of business in Los Angeles, California, where it is en-
gaged in providing janitorial services to commercial and gov-
ernmental buildings. In the course and conduct of its busi-
ness operations, Respondent annually derives gross revenues
in excess of $500,000, while purchasing and receiving goods
and services valued in excess of $50,000 at its Los Angeles,
California location directly from points outside the State of
California. Respondent admits, and I find, that it is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act and, as also admitted, that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
In approximately May 1992, the Union began organizing
activity among employees at the Los Angeles County Mu-
seum of Art (LACMA), where events of the case occurred.
In the weeks following, a supervisor allegedly made remarks
to certain janitorial employees which inquired about this ac-
tivity and ordered employees to hold any discussion concern-
ing the Union outside museum premises. Later a meeting of
employees was held at which a supervisor read aloud an em-
ployee manual provision limiting the wearing of buttons in
a way that would forbid union insignia.
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates and named months hereafter are in 1992, unless other-
wise indicated.
B. Operative Facts
This setting is one of Respondent’s many unionized ac-
counts. As an adjunct to what LACMA comprises as a public
art museum, consisting of five buildings and an adjoining
plaza, Respondent provides categorical services using over
two dozen hourly paid custodial employees. A descriptive
breakdown of such functions is: (1) housekeeping, (2) con-
struction cleanup, (3) special events, and (4) technical serv-
ices. Ordinarily LACMA is open from 10 a.m. to 5 p.m.
while Respondent’s janitors are spread over a staggered day
shift that for some begins at 6 a.m. Public contact between
museum patrons and Respondent’s employees occurs ran-
domly during cleaning work in the galleries or as necessary
to supply and dismantle exhibits. Additionally a few employ-
ees would experience close public contact while doing setups
or takedowns for special events such as parties that might
draw hundreds of attendees.
Respondent maintains an employee manual titled, ‘‘ Facili-
ties Management Associate Handbook.’’ Among its rules and
regulations are one regarding personal appearance in which
is stated, ‘‘Buttons—Service or Safety Committee award pins
only, to be worn on the left collar,’’ and one expressed as
a standard no-distribution/no-solicitation limitation. Exact
phrasing of the latter rule begins as follows:
The Company stresses that its associates should not
be disturbed or disrupted in performing their job by so-
licitations. For that reason, the following rule has been
established:
Solicitation of associates during working time by, or
on behalf of, any individual organization, club or soci-
ety is prohibited. The distribution of any literature,
pamphlets, or other material in a Company work area
is prohibited. This means that associates may not solicit
while they are engaged in the performance of work
tasks, nor may associates be solicited while working.
On approximately July 1, Corporate Manager of Employee
Relations Carlos Cartaya held a meeting of janitorial employ-
ees at which time he stated the Employer was aware organiz-
ing efforts were under way among employees at LACMA,
and that Respondent intended to resist this to the extent al-
lowed by law.1 Subsequently on July 27, Supervisor Martha
Martinez and her assistant held at least one meeting of as-
sembled janitors to emphasize certain provisions of the em-
ployee manual. Management’s purpose was expressed in both
English and Spanish to those present, with the prohibition
against buttons or insignia ‘‘other than Marriott’s’’ pointed
to, and employees reminded that they did not work under
any employment contract protecting them from sudden dis-
missal. The next day Martha Martinez repeated this informa-
tion directly to persons who had missed the group meeting
because of having that day off.
Allegations of the complaint also concerned two brief inci-
dents occurring on the premises during the time following
commencement of union activities. Jorge Salay is one of the
janitors at LACMA, and attended several organizational
meetings conducted at an adjoining park by Union Rep-
resentative Rocio Saenz. On a day in August, Salay was
working in proximity to Gladys Rodriguez while cleaning
plexiglass in the Anderson building and the other employee
vacuumed. The two were diverted by a vacuum cleaner mal-
function which Salay briefly attempted to adjust, and in those
immediate moments Martha Martinez approached them.
Salay testified that he overheard Martha Martinez inquire of
Rodriguez by asking, ‘‘ what does the Union girl say?’’ Mar-
tha Martinez denied making any remark of this kind.
On a separate occasion during July, janitor Hugo Martinez
was engaged in conversation at the loading dock with nearby
coworker Nelson Valladares. It was late morning and Hugo
Martinez was telling Valladares about a delegation of per-
sons that had recently attempted to discuss employee issues
with officials of the museum itself. Valladares had not par-
ticipated in the delegation, about which Hugo Martinez was
better informed. In fact Hugo Martinez had been mildly in-
volved with other employees in support of the Union’s orga-
nizing drive. As the two of them spoke about the delegation,
Martha Martinez approached and said if they wished to dis-
cuss union matters to ‘‘do it outside.’’ Martha Martinez, as
above, similarly denied making any remarks of this kind.
C. Discussion
The first issue I treat is whether Respondent’s written rule
about buttons is unlawful as the General Counsel contends.
A fundamental right of employees to wear union insignia
while working as a form of expression has protection under
Section 7 of the Act. Republic Aviation Corp. v. NLRB, 324
U.S. 793, 801–803 (1945). The right to protest in words or
display opinion-revealing insignia, where in either case the
basis is unionism or considerations of working conditions, is
not to be impeded by an employer absent special cir-
cumstances. Southern California Edison Co., 274 NLRB
1121 (1985); Borman’s, Inc., 254 NLRB 1023 (1981).
I believe the General Counsel has a more correct analysis
of this issue, based on the composite of rationale found in
Control Services, 303 NLRB 481 (1991); and Albertsons,
Inc., 300 NLRB 1013 (1990). Respondent has primarily ar-
gued that (1) no compulsion against wearing union insignia
has been shown, (2) disparate application of the button rule
is not present, and (3) the extensive public access to
LACMA constitutes requisite ‘‘special circumstances’’ to
justify its button policy. Although the General Counsel has
stipulated that no employee was told not to wear a union but-
ton, or to remove one being worn, that does not diminish the
impact of a plain written rule of conduct at the workplace
which excludes insignia in support of the Union from what
is allowable behavior. If the fundamental right exists as Re-
public Aviation Corp. guarantees, the mere existence of a
limiting rule of employee conduct is in contravention of law.
Thus it is unavailing for Respondent to point out that no em-
ployee was verbally cautioned against doing what the estab-
lished employee rule forbids, or that any person testing the
rule was ordered to stop. It is instead that the rule was em-
bedded in overall rules of conduct, and the reemphasis of
this prohibition by Martha Martinez as done in July makes
its effect even more significant.
As to absence of any showing of disparate application this
does not detract from the impermissible maintenance of the
button rule in the first place. It is not a disparity that is al-
leged, but as the parties themselves in their briefs refer to
899MARRIOTT CORP.
the issue of whether a rule is in violation of the Act, ‘‘on
its face,’’ or is ‘‘overbroad,’’ respectively.
The matter of public access in this fact situation does not
provide Respondent with the special circumstances necessary
to inhibit the wearing of union insignia. Granted that the
janitorial employees would come in contact with a museum-
attending public on a range from random to frequent, I see
nothing about that fact which would justify the rule. Neither
is it apparent that special events at which janitorial employ-
ees might have more extensive public contact would change
an outlook on this branch of what Respondent contends.
There is no unique sensitivity that arises from employees of
a cultural facility displaying insignia which show support for
collective representation. Such a display does not have the
potential to distract, disturb, or otherwise inconvenience art
patrons, whose presence is the essential reason for the facil-
ity being served.
The issue raised from testimony of Salay requires a pre-
liminary credibility resolution, and beyond that a holding in
terms of what inquiry is permitted in the brief episode that
the General Counsel’s witness described. At the outset I
credit Salay, who displayed good demeanor and impressively
appeared to testify honestly. He showed ability at recalling
details, and a persuasive consistency in responding to ques-
tions as they unfolded during his examination. I discredit
Martha Martinez, whose demeanor was far less convincing,
and whose denial concerning the issue was flat and insincere-
sounding coupled with my doubts because of the brief and
shallow manner in which she was questioned on the point.
Taking then as accepted fact of the matter that Martha Mar-
tinez abruptly asked Rodriguez what was being told to her
by the female union representative, I hold this to be unlawful
interrogation under the circumstances. The union activities by
this time had been plainly visible to supervisory personnel in
the park across from LACMA, and Martha Martinez had ac-
tually altered her lunch practices to better avoid seeming
close to these activities. However, the direct issue is whether
she could suddenly confront Rodriguez with a question as I
credit was made. Although Respondent developed on the
record that it had instructed supervisors against unlawful in-
terrogation, the point remains whether the credited remark
constituted just such a violation. I believe so based on the
established fact that Rodriguez was not for any reason known
to be an active and open supporter of the Union, and thus
by an objective standard was coerced by this sudden ques-
tioning. See Rossmore House, 269 NLRB 1176 (1984). Re-
spondent’s most appealing avenue of exoneration here is the
discussion by a divided Board in Sunnyvale Medical Clinic,
277 NLRB 1217 (1985). In that case the basic ‘‘all-of-the-
circumstances’’ test of Blue Flash Express, Inc., 109 NLRB
591 (1954), was treated; however, the majority found the
questioned employee, although not openly and actively sup-
portive of a labor organization, had presented a dues-author-
ization card directly to a personnel director. This fact, cou-
pled with absence of employer hostility to that union, the
general, nonthreatening nature of the questions and a casual,
amicable type of conversation based on personal friendship
left the overall episode devoid of such elements of coercion
as would be necessary to find a violation of the Act. I distin-
guish the facts of Sunnyvale from what is present here, large-
ly because the overall circumstances show an alarmingly
unconnected inquiry that in its literal terms called for a dis-
closure of all that was of interest to the employee in her at-
tendance at organizing meetings. It is just such intrusive in-
terrogation that the Blue Flash doctrine intends to prevent,
and on these grounds I hold Martha Martinez’ action to be
a violation of Section 8(a)(1) as alleged. In reaching this
conclusion, I take into account Respondent’s argument that
Rodriguez was not herself called as a witness, but do not
find a sufficient basis to make an adverse inference for the
General Counsel’s failure to call this person or explain why
it was not done. The drawing or nondrawing of requested in-
ferences as sought by Respondent here, and on the incident
to be next discussed, is an exercise in the use of reasonable
discretion. Within this context I chose to excuse the General
Counsel’s presentation on both issues. So doing reflects my
satisfaction that the quality of testimony establishing these
two independent violations is ample on the points involved.
See Laborers Local 190 (ACMAT Corp.), 306 NLRB 93
(1992).
The incident about which Hugo Martinez testified deals
with another aspect of employer response to an organizing
campaign. Here the issue is whether a brief verbal edict,
even if mistakenly based on the belief that solicitation be-
tween employees was taking place, is actionable where the
employees are directed to go off premises. My credibility
evaluations as to this incident again favor the General Coun-
sel. Although Hugo Martinez was not as convincing a wit-
ness as Salay, his demeanor was sufficiently enough so to
warrant being credited. This is true even though he exhibited
some perplexed hesitancy at times, but not so much in kind
or quality as to appear he was actually slanting his testi-
mony. Relatedly, I again discredit Martha Martinez’ hollow-
sounding denial of ever having made remarks as attributed
to her by Hugo Martinez. From this the question becomes
that of whether ordering two employees to go outside the
premises for discussion of what was not a solicitation con-
nected to the Union’s organizing campaign violated the Act.
I believe that it does and so hold. The discussion underway
between Hugo Martinez and Valladares at the time of Martha
Martinez’ approach had to do with generalizations about the
group delegation, an item of interest for employees at the fa-
cility but not a direct solicitation of support toward success
in the Union eventually winning bargaining rights. For this
reason Martha Martinez’ command, brief as it was, suffi-
ciently restrained the participating employees in their right to
engage in simple conversation while at work and without im-
pact on fulfillment of their assigned duties. As such it was
tantamount to an overly broad solicitation rule, and thus un-
lawfully restrictive of Section 7 rights available to employ-
ees. Cf. Arthur Young & Co., 291 NLRB 39 (1988); Pace-
setter Corp., 307 NLRB 514 (1992).
In a recent case of much greater complexity than the lim-
ited circumstances here, the Board found a violation of the
Act where employees of a certain department were forbidden
to use a general breakroom stemming from that employer’s
motivation to inhibit union activities. Miller Group, 310
NLRB 1235 (1993). Direct comparison cannot be made be-
cause presence in a breakroom would ordinarily be on non-
working time, as opposed to the late morning circumstances
of the Hugo Martinez-Valladares’ conversational exchange.
However an analogy is still apparent in that casual discussion
between employees while engaged in their work duties is a
common part of the employment culture absent some special
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reasons that it be scrupulously avoided. In this sense then,
the verbal stricture done so abruptly by Martha Martinez was
abuse of rights existing for employees as an active organiz-
ing campaign for collective-bargaining goals is underway at
their concentrated site of employment. I am persuaded that
this abuse arises to the level of a committed unfair labor
practice under circumstances in existence at the time, and
without the slightest explanation from Martha Martinez to ei-
ther involved employee as to why Respondent would assert
that such interference with the ordinary was so urgent. Al-
though mindful of the allowance set forth in Section 8(c) of
the Act, I adopt this reasoning because, in part, the employer
announced to employees its firm intention to ‘‘fight . . .
union participation in there . . . to the limits.’’ Furthermore,
the Hugo Martinez-Valladares’ exchange was routine and un-
obtrusive as well as comporting with normal use of the area
in which it was conducted. Thus, as the General Counsel
contends, some support for the conclusion I reach may be
found in Brunswick Food & Drug, 284 NLRB 663 (1987),
even noting that a more extensive and animated fact situation
was involved there. Finally, the statement by Martha Mar-
tinez constituted sudden promulgation of an unduly broad
no-solicitation rule, given that credited evidence shows her
edict applied to discussion of the Union generally within the
building and made no distinction between working and non-
working time.
CONCLUSIONS OF LAW
1. Respondent Marriott Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Hospital and Service Employees Union Local 399,
Service Employees International Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By prohibiting employees from wearing union insignia
on their attire, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By interrogating employees about conversations among
union representatives and employees, Respondent has en-
gaged in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. By verbally promulgating an overly broad no-solicita-
tion rule against talking among employees while at work,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated Section 8(a)(1)
of the Act, I shall order that it cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act. Specifically, I shall order that Respond-
ent cease and desist from restricting employees’ wearing of
union-related buttons or insignia on their attire, and post an
appropriate notice.
[Recommended Order omitted from publication.]