Teletech Holdings, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2004

342 N.L.R.B. 924 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 92
924
Teletech Holdings, Inc. and United Food and Com-
mercial Workers Union, Local 381 AFL–CIO.
Cases 19–CA–28331, 19–CA–28371, 19–CA–
28570, and 19–CA–28700.
August 31, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On December 19, 2003, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent, the Charging Party, and the General Coun-
sel filed joint limited exceptions.1
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 joint exceptions and has decided to affirm
the judge’s rulings, findings, and conclusions and to
adopt the recommended Order as modified and set forth
in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Teletech Holdings, Inc., Bremerton, Wash-
ington, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Asking employees what they think about United
Food and Commercial Workers Union, Local 381, AFL–
CIO, or any other union.
(b) Telling employees that the Temple, Texas facility
is closing because the employees there tried to form a
union and that is what happens when employees try to
form a union.
(c) Requesting employees to remove union insignia
from their clothing.
(d) Asking employees for their name if they are at-
tempting to handbill for the Union.
(e) Making notes while watching handbilling activity.
(f) Prohibiting union handbilling in public areas near
the parking lot.
(g) Selectively enforcing cubicle ornamentation guide-
lines only in response to union literature being placed in
cubicles.

1 Pursuant to joint extension requests, exceptions were due on Feb-
ruary 6, 2004. On April 9, 2004, the instant joint exceptions, dated
February 3, 2004, were refiled. It appears that the original joint limited
exceptions, although timely deposited in the U.S. Mail, failed to arrive
at the Board in Washington, D.C. As all parties were timely served on
February 6, as no party objects to the April 9 filing,, and based on the
nature of the exceptions, the Board has decided to accept the joint lim-
ited exceptions.
2 As these modifications to the judge’s recommended Order and rec-
ommended notice to employees more accurately reflect her findings,
we grant the joint limited exceptions.
(h) Prohibiting off-duty employees who are handbill-
ing union literature from entering the parking lot.
(i) Telling employees that they cannot criticize their
jobs or the company.
(j) 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 after service by the Region, post at
its facility in Bremerton, Washington, copies of the at-
tached noticed marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 19, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since July 2002.
(b) 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.
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 benefit
and protection

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 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.”
TELETECH HOLDINGS, INC. 925
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT ask you what you think about United
Food and Commercial Workers Union, Local 381, AFL–
CIO, or any other union.
WE WILL NOT tell you that the Temple, Texas facility
is closing because the employees there tried to form a
union and that is what happens when employees try to
form a union.
WE WILL NOT request that any of you remove union in-
signia from your clothing.
WE WILL NOT ask you for your name if you are at-
tempting to handbill for the union.
WE WILL NOT make notes while watching handbilling
activity.
WE WILL NOT prohibit union handbilling in public ar-
eas near the parking lot.
WE WILL NOT selectively enforce cubicle ornamenta-
tion guidelines only in response to union literature being
placed in cubicles.
WE WILL NOT prohibit off-duty employees who are
handbilling union literature from entering the parking lot.
WE WILL NOT tell you that you cannot criticize your
jobs or the company.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
set forth above.
TELETECH HOLDINGS, INC.

Richard C. Fiol, Esq., for the General Counsel.
Aaron A. Roblan, Esq., of Seattle, Washington, and David Al-
len, Esq., of Los Angeles, California, for the Respondent.
Mark E. Brennan, Esq., of Seattle, Washington, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. The
General Counsel alleges that Respondent Teletech Holdings,
Inc. interrogated, threatened, and surveilled its employees be-
cause of their activities on behalf of United Food and Commer-
cial Workers Union, Local 381, AFL–CIO (the Union), ordered
employees to remove union insignia from their clothing and
work areas, selectively and disparately enforced a no-
solicitation, no-distribution rule against the Union by prohibit-
ing the posting of union literature in work cubicles and by pro-
hibiting the Union access to the cafeteria and parking lot, and
promulgated and maintained a rule prohibiting employee access
to nonwork areas after scheduled hours.1

1 The Union filed the charge and amended charge in Case 19–CA–
28331 on November 26 and December 18, 2002; the charge in Case
19–CA–28371 on December 23, 2002; and the charge and amended
charge in Case 19–CA–28570 on March 24, and April 22, 2003. The
second consolidated complaint issued on April 22, 2003. These cases
were tried in Seattle, Washington, on May 6–9 and June 3–4, 2003.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and counsel for the Re-
spondent, I make the following2
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a State of Colorado corporation, maintains an
office and place of business in Bremerton, Washington, where
it is engaged in providing customer services for telecommuni-
cations’ organizations. During the 12-month period ending
April 22, 2003, Respondent sold and shipped goods or provided
services from its facility within the State of Colorado to cus-
tomers within the State of Colorado, which customers were
themselves engaged in interstate commerce by other than indi-
rect means, of a total value in excess of $50,000. 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.
Respondent admits and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. BACKGROUND
In February 2002, Respondent began operating a 24-hour, 7-
day per week customer service center in Bremerton, Washing-
ton, for cellular telephone service providers including Nextel
Corporation. Approximately 600 customer-care employees
were employed at the Bremerton facility at the time of this
hearing. About 300 of these employees were hired during Re-
spondent’s first year of operation. The remainder of the em-
ployees transitioned from the prior owner, Nextel Corporation.
All customer-care employees work in a cubicle equipped with a
headphone, computer, desk, and chair.
The Union began an organizational drive in May 2002. In
July 2002, Respondent was informed that the Union was con-
ducting an organizational drive.
III. ALLEGED INTERROGATION
There is agreement among all witnesses that in July 2002,
Supervisor Nathan Hayward spoke individually to employees
under his supervision. There is disagreement regarding whether
Hayward asked how employees felt about the Union, as em-
ployees Tamara Oien and Marlaina Shephard testified, or
whether Hayward asked if employees had any questions or
anything they would like to discuss about Respondent’s posi-
tion letter about the Union, as Hayward testified.
Employees Oien and Shephard recalled the incident in sig-
nificant detail. Both stated that Hayward came into the cubicle
she occupied, instructed her to block incoming customer calls

Thereafter, the Union filed the charge in Case 19–CA–28700 on May
30, 2003, and the complaint issued on July 31, 2003. On August 3,
2003, the record was reopened to hear Case 19–CA–28700. Trial was
on October 9, 2003.
2 Credibility resolutions have been made based upon witness de-
meanor, the weight of respective evidence, established or omitted facts,
apparent probability, and reasonable inferences drawn from the record
as a whole. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or
documents or because it was inherently incredible and unworthy of
belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
by placing the phone in “not ready,” and then asked what each
thought of the Union. Oien told Hayward she supported the
Union. Shephard told Hayward he could not ask her such a
question. Both Oien and Shephard observed Hayward approach
other employees, individually, after he concluded his discussion
with each of them.
Hayward agreed that he spoke to 11 or 12 employees. Hay-
ward testified that his discussions followed the publication of
Respondent’s position letter on unionization. The position letter
was not produced at the hearing. Hayward testified that he did
not ask employees how they felt about the Union. Rather, ac-
cording to Hayward, he asked whether employees had any
questions about the letter or anything that they would like to
discuss about the letter.
As current employees testifying against their own economic
self-interest, Oien and Shephard are accorded enhanced credi-
bility. 7-Eleven Food Stores, 257 NLRB 108, 113 fn. 31
(1981); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961), enfd.
308 F.2d 89 (5th Cir. 1962). However, current employee status
is only one factor among many that may be utilized to deter-
mine credibility. Flexsteel Industries, 316 NLRB 745 (1995),
enfd. mem. 83 F.3d. 419 (5th Cir. 1996). On balance, I credit
Oien and Shephard’s versions of the conversation. Both pro-
vided detailed, vivid accounts of the conversation each had
with Hayward. On the other hand, Hayward admitted that it
was difficult to recall his exact conversation with any of the
employees. Hayward offered that he was looking for, “just kind
of a temperature, like a climate of their response to the letter.”

In determining whether a supervisor’s questions to an em-
ployee constitute an unlawful interrogation, the Board ex-
amines whether, under all the circumstances, the question-
ing reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Ross-
more House, 269 NLRB 1176 (1984), affd. sub. nom. Ho-
tel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). Under this totality of circumstances approach, the
Board examines factors such as the employer’s back-
ground (i.e., whether there is a history of employer hostil-
ity and discrimination); the nature of the information
sought (e.g., whether the interrogator appeared to be seek-
ing information on which to base action against individual
employees); the identity of the questioner (i.e., his position
in the company hierarchy); place and method of interroga-
tion (e.g., whether the employee was called from work to
the boss’ office; whether the tone of the questioning was
hostile or threatening); and truthfulness of the reply.
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Although
“strict evaluation of each factor” is not required, these
“useful indicia . . . serve as a starting point for assessing
the totality of the circumstance[s].” Perdue Farms, Inc. v.
NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998).

Heartshare Human Services of New York, Inc., 339 NLRB 842,
843 (2003); see also, La Gloria Oil & Gas Co., 337 NLRB
1120 1122–1123 (2002), enf. 71 Fed. Appx. 441 (5th Cir.
2003):

The test of whether an unlawful interrogation has occurred is
whether, under all the circumstances, the alleged interrogation
reasonably tends to restrain, coerce, or interfere with the em-
ployees in the exercise of rights guaranteed by the Act. Ross-
more House, 269 NLRB 1176, 1177–1178 (1984). An appro-
priate analysis of whether an unlawful interrogation has oc-
curred must consider the circumstances surrounding the al-
leged interrogation, such as the background of the relation-
ship, the nature of the information sought, the identity of the
questioner, and the place and method of interrogation. Sunny-
vale Medical Clinic, 277 NLRB 1217, 1218 (1985).

Hayward was the immediate supervisor of the employees in-
volved. Although at the time of the conversations there was not
a history of employer hostility or discrimination and there is no
indication whether Hayward’s tone was hostile or threatening, I
find based upon the totality of circumstances that Hayward’s
questioning was coercive. I note that Hayward’s instruction to
the employees to stop answering calls and place their phone in
“not ready” indicated the serious nature of the conversation
which ensued. Moreover, each employee was questioned seri-
ally after being requested to stop answering customer calls.
Finally, I note that asking an employee what he or she thinks of
the Union might reasonably be understood by an employee to
indicate that future action might be taken depending on what
the employee’s answer was. Accordingly, I find that by asking
employees what they thought about the Union, Respondent
interfered with, restrained, and coerced employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.3
IV. ALLEGED THREAT OF JOB LOSS
Employee Darlene Wood testified that on August 8, 2002, be-
tween 8:30 and 9 p.m., Supervisor Edward Fassio spoke with
employees Melody McMoore, Erin Avery, Julianna Buzzard,
Jeremy Key, and Wood. McMoore asked Fassio why Respon-
dent’s Temple, Texas facility was closing. Fassio responded,
according to Wood, that it was because the employees tried to
form a union. Although Fassio left the conversation after making
this statement, the employees continued to whisper about Fas-
sio’s earlier comment. Fassio rejoined the conversation, asking
the employees what they were talking about. When Fassio was
told the employees could not believe what was happening at
Temple, Texas, Fassio responded, “[T]hat is what happens when
you try to form a union.” Fassio, who no longer worked for Re-
spondent at the time of the hearing, did not testify.
Wood’s testimony was detailed. She impressed me as a
credible witness. I find that Fassio told employees that Respon-
dent’s Temple, Texas facility closed because employees sought
to unionize and that when employees seek to unionize, facilities
may be closed. These statements constitute unlawful threats of
job loss because employees support the Union. See, e.g., Day-

3 In Heartshare Human Services, supra, a two-member majority set
forth “the truthfulness of the answer” as an additional factor. In explica-
tion, the two-member majority noted that because the interrogated
employees therein answered truthfully, nothing in the question could
reasonably inspire fear in the employees. In the instant case, Oien re-
sponded that she supported the Union. Shepard asserted that it was
unlawful for Hayward to interrogate her. Perhaps Oien did support the
Union in July 2002. Certainly by March 2003, Oien handbilled on
behalf of the Union. Shepard did not respond directly to the question. In
the final analysis, this factor does not provide additional evidence re-
garding whether under all the circumstances the questioning reasonably
tended to interfere with, restrain, or coerce the employees.
TELETECH HOLDINGS, INC. 927
ton Newspapers, Inc., 339 NLRB 650 (2003). Although Wood
agreed that Fassio was generally jocular or “funny,” even if his
statements to Wood, McMoore, and the others were made in a
jocular tone, and there is no evidence that they were, as counsel
for the General Counsel notes, this does not lessen the coercive
impact of his statements. Intercon I Zercom), 333 NLRB 223,
237 (2001). Accordingly, I find that by telling employees that
Respondent’s Temple, Texas facility was closing because em-
ployees sought to unionize and “[T]hat is what happens when
you try to form a union,” Respondent threatened employees
with loss of their jobs because they were supporting the Union
and thus, interfered with, restrained, and coerced employees in
the exercise of their rights guaranteed by Section 7 of the Act.
V. REQUEST TO REMOVE UNION INSIGNIA FROM
CLOTHING (STIPULATED)
The parties stipulated that on August 18, 2002, Supervisor
Charles Quante requested that Darlene Wood remove union
insignia from her clothing. Respondent presented evidence that
on the following day, Supervisor Adam Matthew told Wood
that Quante was incorrect and she could wear union buttons if
she desired to do so. Wood denied that Matthew told her that
she could wear union buttons.
Absent special considerations, Section 7 protects the right of
employees to wear union buttons or insignia. See, e.g., Repub-
lic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945); Control
Services, 303 NLRB 481, 485 (1991), enfd. 961 F.2d 1568 (3d
Cir. 1992), 975 F.2d 1551 (3d Cir. 1992). There is no conten-
tion that special considerations are present in this case.
By instructing an employee to remove union insignia from
her clothing, Respondent interfered with, restrained, and co-
erced employees in the exercise of their Section 7 right to wear
union buttons or insignia. Nevertheless, Respondent argues that
Matthew’s correction of Quante’s remark on the following day
remedied any violation. Alternatively, Respondent argues that
Quante’s statement does not constitute a violation of the Act
because it was de minimis, relying on Bellinger Shipyards, Inc.,
227 NLRB 620 (1976) (conduct which is technically in contra-
vention of the statute may be so insignificant and so largely
remedied as to be rendered meaningless by employer’s subse-
quent conduct will not be utilized as basis for remedial order).
Pursuant to Passavant Memorial Area Hospital, 237 NLRB
138 (1978), relied upon by counsel for the General Counsel, in
order to effectively repudiate conduct violative of the Act, Re-
spondent must have, among other things,4 acknowledged that
the request to remove union insignia was unlawful and assured
Wood that the request would not be repeated. Even crediting
Matthew’s testimony, there was no acknowledgement that the

4 Passavant requires that repudiation be timely, unambiguous, spe-
cific in nature, free from other proscribed illegal conduct, adequately
publicized to employees involved, that no further proscribed conduct
occur, and that there be assurances that in the future the employer will
not interfere with the exercise of employees’ Sec. 7 rights. See Passa-
vant, supra at 139. See also Community Action Commission of Fayette
County, Inc., 338 NLRB 664 (2002). I note that although Passavant
remains the extant authority on employer remedy of unfair labor prac-
tices, in Champion International Corp., 339 NLRB 672 fn. 6 (2003), a
three-member panel of the Board stated that it did not pass on the valid-
ity of Passavant although it agreed with the administrative law judge
that the employer’s conduct therein was not cured.
request was unlawful or assurance that the request would not be
repeated. Accordingly, Quante’s request was not remedied.
Moreover, I reject Respondent’s argument that Quante’s re-
quest falls within the de minimis rule. Absent effective repudia-
tion, it is reasonable to infer that Quante’s request continued to
chill employee exercise of Section 7 rights. See, e.g., Solutia,
Inc., 339 NLRB 60 (2003). Thus, Respondent’s conduct was
not rendered meaningless.
VI. ALLEGED SURVEILLANCE
A. March 10, 2003
At approximately 6 a.m. on March 10, 2003, employees
Tamara Oien and Kathy Weigert took seats in the lobby of
Respondent’s Bremerton Road facility. About 15 feet away
from their seats, the main security desk was attended by a male
and a female guard. The guards were employees of Cognisa
Security which provided 24-hour security services at the Brem-
erton facility. The male guard, Richard Vela, stated to Oien and
Weigert, “[Y]ou better not be distributing any of that union
stuff.” Weigert responded that they had a right to distribute
literature in nonwork areas. Vela asked Oien and Weigert to
leave and they complied with his request.
Oien and Weigert then went to the cafeteria. Shortly thereaf-
ter, the female security guard approached them and asked for
their names. She stated that her supervisor wanted to know who
they were. Oien and Weigert gave her their names.
Oien identified the female guard as Beth. Weigert did not
testify regarding the name of the female guard. Guard Beth
Mederios testified that she did not report to work on March 10,
2003, until 1:58 p.m. Respondent’s security logs verify her
testimony. These logs also indicate that guard Lynne Eyerly
was on duty with Vela at 6 a.m. Based on these logs, counsel
for the General Counsel seeks to substitute Lynne Eyerly for
Beth Mederios in the complaint allegations. Respondent, on the
other hand, submits that Oien and Weigert emphatically testi-
fied that Mederios was the guard in question and should there-
fore be discredited.
The parties fully litigated the issue of whether a female
guard asked Oien and Weigert for their names shortly after they
attempted to distribute union literature in Respondent’s lobby
on March 10, 2003. Although Oien identified the guard as Beth,
it appears that the guard was Lynne Eyerly and I sustain coun-
sel for the General Counsel’s request to substitute Lynne Ey-
erly’s name for that of Beth Mederios.
Vela agreed that he asked two female employees to leave the
lobby area because they were attempting to distribute union
materials in the lobby. Vela denied that he instructed Beth
Mederios to question them or find out their names. Eyerly did
not testify. I credit Oien and Weigert and find that a female
guard asked for their names after they were observed distribut-
ing union literature in the lobby. By asking Oien and Weigert
for their names after they attempted to distribute union litera-
ture in the lobby, it was reasonable for the employees to assume
that their union activities were under surveillance. I find that by
asking employees for their names, Respondent created the im-
pression that its employees’ union activities were under surveil-
lance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928
B. March 12, 2003
At about 1:30 p.m. on March 12, 2003, employee Darlene
Wood, two union employees, Frankie and Shelley, and the
union’s director of organizing, Cindy Feist, distributed hand-
bills to employees entering and exiting Respondent’s parking
lot. Wood saw Supervisor Susan Sims standing at a window
watching the handbillers for about 20 to 30 minutes. According
to Wood, Sims appeared to be writing as cars approached the
handbillers to accept literature. Feist testified that she observed
a woman standing in a window writing while observing the
handbilling. Feist asked Wood who the woman was. Wood
identified this woman as Susan Sims.
According to supervisor of key corporate accounts, Susan
Sims, she was contacted at about 2 or 3 p.m. by employee Ta-
laena Lee. Lee reported that she had been stopped by union
handbillers as she exited the parking lot. Lee was upset. Sims
walked to a corner window to observe the parking lot. Supervi-
sor Susan Yamashita joined her at the window. They observed
handbilling activities but no cars were being stopped. Sims
denied that she took notes or that she was holding paper or a
pen. Sims and Yamashita stood at the window chatting for 3 to
7 minutes. Darlene Wood waved to them at one point and Sims
waved back.
I credit the testimony of Wood and Feist. Although they dis-
agreed regarding which window of the building was involved,
both Wood and Feist recalled exact details identically. Both
recalled that they were alerted to the note taking by employees
who were leaving. Based upon their testimony, I find that by
taking notes during employee handbilling, Respondent sur-
veilled employees engaged in union activities.
VII. ALLEGED SELECTIVE AND DISPARATE ENFORCEMENT OF NO-
SOLICITATION, NO-DISTRIBUTION RULE
A. The Rule
Respondent maintains a no-solicitation, no-distribution which
provides,

Non-employees may not solicit at any time on
Teletech property.
Employees may not solicit or distribute during work-
ing time and may not, at any time, distribute in working
areas. “Working time” means those hours that employees
are on duty, excluding such times as breaks, meal times,
and other specifically designated periods during the work-
day when employees are properly not engaged in perform-
ing their work duties. “Working areas” means those areas
in Teletech facilities in which Teletech business is con-
ducted, excluding such locations as lunchrooms, cafete-
rias, break rooms, and other areas in which employees are
permitted while not working.
We also believe that it is important that Teletech and
its employees are involved in and contribute to the com-
munities in which we work. Therefore, from time to time,
we will invite representatives of non-profit charitable or-
ganizations to come to our facilities to organize support
for their causes. Obviously, your participation in these ac-
tivities is voluntary, but we think that it is important to
give you the opportunity to join us in our community in-
volvement.

Although the no-solicitation, no-distribution rule sets forth
specific procedures for nonprofit charitable organization site
visits, there is no evidence regarding such visits. Respondent
possesses a private property interest in its facility at 1400 N. E.
McWilliams Road, sufficient under Washington law to exclude
trespassers or third parties. The General Counsel does not dis-
pute Respondent’s property interest.
Two issues arise pursuant to this rule. First, may Respondent
lawfully prohibit employee display of union-related materials in
work cubicles? Second, may Respondent bar nonemployee
union representatives access to its nonwork areas while rou-
tinely allowing such access to private food vendors?
B. General Principles Regarding Employee No-Solicitation,
No-Distribution Rules and Enforcement of These Rules
Generally, analysis of rules limiting or prohibiting employee
solicitation and distribution focus on the nature of the activity,
the location of the activity, and the individual involved. Thus,
the Board routinely distinguishes employee solicitation from
employee distribution. Solicitation is oral and, accordingly,
interferes with employer interests only because the conversa-
tion may occur during working time. Employee distribution of
literature, on the other hand, presents the potential of littering
and could produce hazards regarding production whether the
distribution occurs on working or nonworking time. Hale Nani
Rehabilitation, 326 NLRB 335 fn. 2 (1998), citing Stoddard-
Quirk Mfg. Co., 138 NLRB 615, 619 (1962).
Reflecting this distinction, rules restricting employee solici-
tation must be limited to working time. Rules restricting em-
ployee distribution are lawful in working areas on working and
nonworking time. Id., citing Eastex, Inc., 215 NLRB 271, 274–
275 (1974), enfd. 550 F.2d 198 (5th Cir. 1977), affd. 437 U.S.
556 (1978).
Assuming a facially valid no-solicitation, no-distribution pol-
icy,5 a further consideration is that the policy be fairly enforced.
Disparate enforcement against employee union solicitation or
employee distribution of union literature while allowing other
employee solicitation or employee distribution will interfere
with the exercise of Section 7 rights. See, e.g., ITT Industries,
331 NLRB 4 (2000); New York Telephone Co., 304 NLRB 183
(1991).
C. General Principles Regarding Nonemployee Access
Regarding nonemployee access, in NLRB v. Babcock & Wil-
cox Co., 351 U.S. 105, 112 (1956), the Court held that,

[A]n employer may validly post his property against nonem-
ployee distribution of union literature if reasonable efforts by
the union through other available channels of communication
will enable it to reach the employees with its message and if
the employer’s notice or order does not discriminate against
the union by allowing other distribution. In these circum-
stances the employer may not be compelled to allow distribu-
tion.

5 Although no attack has been made on the facial validity of Re-
spondent’s rule, I note that in Hammary Mfg. Corp., 265 NLRB 57
(1982), a rule was held invalid because it explicitly allowed United
Way solicitation. “This exception does nothing less than sanction the
rule’s disparate application and is therefore unlawful.”
TELETECH HOLDINGS, INC. 929
This test was reaffirmed by the Court in Lechmere Inc. v.
NLRB, 502 U.S. 527, 533 (1992). In addition, the Court reiter-
ated its earlier basis for finding a “critical distinction” between
employees and nonemployees: the organizing activities of em-
ployees are guaranteed by Section 7 while Section 7 applies
only derivatively to nonemployees. Id. See also Hale Nani Re-
habilitation, supra, 326 NLRB at 337 fn. 4 (concurrence of
Members Fox and Liebman).
Of course, application of rules governing nonemployee ac-
cess must be fairly administered. If exceptions are made for
some nonemployees but not for nonemployee union representa-
tives, Lechmere as well as subsequent NLRB decisions, hold
that discrimination may have occurred, depending on the par-
ticular circumstances of each case. See, Lechmere, supra, 502
U.S. at 535 (“To gain access, the union has the burden of show-
ing that no other reasonable means of communicating its organ-
izational message to the employees exists or that the em-
ployer’s access rules discriminate against union solicitation.”);
Lincoln Center for the Performing Arts, 340 NLRB 1100, 1112
(2003); Davis Supermarkets, 306 NLRB 426, 427 (1992).
In both Babcock and Lechmere the Court defined discrimina-
tion against the union as barring union distribution while “al-
lowing other distribution.” Babcock, supra, 351 U.S. at 112;
Lechmere, supra, 502 U.S. at 535. In Sears, Roebuck & Co. v.
San Diego County District Council of Carpenters, 436 U.S. 180
(1978), the Court also defined discrimination against the union
as in Babcock: “the employer’s access rules discriminate
against union solicitation [by allowing other distribution.]” Id.
436 U.S. at 205 and fn. 40.
The District of Columbia Circuit Court of Appeals enunci-
ated this test in Lucile Salter Packard Children’s Hospital v.
NLRB, 97 F.3d 583, 587 (1996) (emphasis added, cross-
citations omitted), as follows:

Second, under the “non-discrimination” exception, an em-
ployer engages in discrimination as defined by section 8(a)(1)
if it denies union access to its premises while allowing similar
distribution or solicitation by nonemployee entities other than
the union. See Babcock, 351 U.S. at 112; Lechmere, 502 U.S.
at 535; Sears, Roebuck & Co. v. San Diego County District
Council of Carpenters, 436 U.S. 180, 205 (1978);
D’Alessandro’s, Inc., 292 NLRB 81, 83–84 (1988).

See: in accord 6 West Ltd. Corp. v. NLRB, 237 F.3d 767, 779–
780 (7th Cir. 2001), denying enf. 330 NLRB 527 (2000) (Under
“similar distribution” analysis, solicitations for girl scout cook-
ies, Christmas ornaments, and hand-painted bottles cannot un-
der any circumstances be compared to union solicitation). In-
deed, the Board has also utilized such language. See, e.g., Wal-
Mart Stores, 340 NLRB 1216, 1217 (2003) (“while allowing
other persons or organizations to engage in similar solicitation”
but failing to allow the union to do so, the employer discrimina-
torily prohibited union agents from handbilling); but see,
Nicks’, 326 NLRB 997, 1000 fn. 19 (1998) (because no similar
solicitation or distribution activity occurred, Members Hurtgen
and Brame find it unnecessary to determine the breadth of the
discrimination exception).
Finally, when work-related nonemployee solicitation or dis-
tribution is allowed to assist the employer in carrying out its
functions or when a nonemployee solicitation or distribution is
allowed as “an integral part” of the employer’s functions and
responsibilities, such nonemployee solicitation or distribution is
not evidence of disparate treatment. Rochester General Hospi-
tal, 234 NLRB 253 (1978) (Red Cross postering and blood
collection in hospital for blood bank, postering of sales by a
volunteer group which donated proceeds to hospital, displaying
of pharmaceutical products that doctors might prescribe or
pharmacy might purchase, and display of medical books of
interest to doctors are work-related activities that assist hospital
in carrying out community health care functions and responsi-
bilities and not such disparate application that would require the
employer to waive its rule and permit access by nonemployee
union organizers); George Washington University Hospital,
227 NLRB 1362, 1373–1374, and fn. 39 (1977) (white elephant
sales and sales of the Women’s Board are excluded from analy-
sis of disparate activities as they are virtually an integral part of
the hospital’s necessary functions).
D. Nonemployee Access to the Parking Lot: August 19, 2002
On August 19, 2002, union director of organizing, Cindy
Feist, a nonemployee, handbilled at the entrance to Respon-
dent’s parking lot. Two security guards approached her and told
her to stay off Respondent’s property. She stated that she was
not on Respondent’s property and she was exercising a First
Amendment right. During the same time period, Respondent
allowed an outside vendor, Just Dogs, to sell breakfast and
lunch from a trailer parked in Respondent’s parking lot.
Counsel for the General Counsel argues that allowing a
commercial vendor on the premises to sell products or services
which are not a part of Respondent’s regular benefit package
while prohibiting union solicitation constitutes disparate treat-
ment. Counsel relies upon Lucile Salter Packard Children’s
Hospital, 318 NLRB 433 (1995), enfd. 97 F.3d 583 (7th Cir.
1996); Ordman’s Park & Shop, 292 NLRB 953, 956 (1989);
and D’Alessandro’s Inc., 292 NLRB 81, 83–84 (1988).
Respondent claims these cases are distinguishable because
Respondent enforced its no-solicitation, no-distribution rule
against the vendor. According to Garen Martinson, Just Dogs
was not allowed to distribute literature or to solicit on its own
behalf. Rather, Just Dogs was only permitted to serve food to
employees who sought it. Moreover, Respondent notes that Just
Dogs had a contract with Respondent which required proof of
insurance, authorization to conduct business and assent to all
Respondent’s workplace policies, including the no-solicitation,
no-distribution rule.
In Knogo Corp., 262 NLRB 1346, 1362 fn. 58 (1982), enfd. in
relevant part, 727 F.2d 55 (2d Cir. 1984), the Board held that by
excluding a nonemployee union organizer from its parking lot
while admitting a nonemployee vendor, the employer violated
Section 8(a)(1) of the Act. Although conceding that Knogo,
might require a finding of a violation, Respondent argues that
Knogo should be limited because it is a pre-Lechmere case.
However, since the issuance of Lechmere, the Board has con-
tinued to find a violation of Section 8(a)(1) when an employer
allows some nonemployees access to its property but denies this
access to the union. See, e.g., Albertson’s, Inc., 332 NLRB 1132,
1134–1136 (2000), and cases cited therein; Sandusky Mall, 329
NLRB 618, 620 fn. 6 (1999), enf. denied 242 F.3d 682 (6th Cir.
2001). Indeed, in Great Scot, 309 NLRB 548, 549 (1992), enf.
denied on other grounds 39 F.3d 678 (6th Cir. 1994), issued post-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930
Lechmere, the Board found the employer violated Section 8(a)(1)
by asking the police to remove handbillers and by requesting the
handbillers to leave the store’s property. The Board found that
the employer routinely allowed commercial vendors to setup
portable wagons in the parking lot and also allowed civic organi-
zations to conduct fundraising events in the parking lot. Thus,
exclusion of the nonemployee union representatives constituted
discrimination. Id.
By allowing a vendor access to the parking lot to sell food
while prohibiting a nonemployee union organizer access to the
parking lot to distribute union literature, applying the logic of
Knogo and Great Scot, Respondent would be held in violation
of Section 8(a)(1) pursuant to the Babcock discrimination pol-
icy.6 Great Scot may be factually distinguished because “a wide
range of commercial and charitable activity unrelated to the
operation of its store” occurred. Great Scot, supra, 309 NLRB
at 549. However, in Knogo, the only other nonemployee access
allowed was a food truck.
Nevertheless, I am persuaded that Respondent did not violate
Section 8(a)(1) on the basis of a disparate treatment theory on
three bases. First, as noted above, when work-related nonem-
ployee solicitation or distribution is allowed to assist the em-
ployer in carrying out its functions or when a nonemployee
solicitation or distribution is allowed as “an integral part” of the
employer’s functions and responsibilities, such nonemployee
solicitation or distribution is not evidence of disparate treat-
ment. Rochester General Hospital, supra, 234 NLRB at 259;
George Washington University Hospital, supra, 227 NLRB at
1374 fn. 39.
Respondent allowed one food vendor access to the parking
lot. Although the provision of food from this vendor was not
part of Respondent’s benefit package in that employees had to
pay for food procured from this vendor, the nearness of the
vendor was a benefit to Respondent in allowing expeditious
lunch for employees without the necessity of leaving the prem-
ises. It was a benefit for employees in providing a convenient
food source which could provide enhanced productivity. Al-
though it would be difficult to conclude that the hot dog vendor
was “an integral part” of Respondent’s functions, the test util-
ized in George Washington University Hospital,7 it is possible

6 In addition Great Scot and Knogo, I note that the cases cited by the
General Counsel would yield the same result. For instance, in Lucile
Salter Packard Children’s Hospital, 318 NLRB 433 (1995), enfd. 97
F.3d 583 (D.C. Cir. 1996), the Board found the employer improperly
banned nonemployee distribution of union literature while allowing
flower vendors, jewelry vendors, and a clothing vendor, as well as
charitable and tax-sheltered annuity and health care insurance provid-
ers. In Ordman’s Park & Shop, 292 NLRB 953, 955–956 (1989), the
employer discriminated against union distribution but allowed other
organizations to use its sidewalks and store entrances for a broad range
of activities. Finally, in D’Alessandro’s, Inc., 292 NLRB 81, 83–84
(1988), the Board found the employer unlawfully precluded union
handbilling near customer doors while regularly allowing sale of items
near the doors, handbilling on parked cars, display of boats and cars for
sale in the parking lot, and sale of parking spaces by Jaycees during the
state fair.
7 In Lucille Salter, supra, 318 NLRB at 433, the Board characterized
both Rochester General Hospital and George Washington University
Hospital as based upon exceptions for “an integral part of the em-
ployer’s health care functions and responsibilities.” See also Allied-
Signal, 296 NLRB 211, 218 (1989) (solicitation for United Way and for
to conclude that the hot dog vendor’s presence in the parking
lot was work-related in that it assisted Respondent in carrying
out its functions, the test utilized in Rochester General Hospi-
tal. Based upon this analysis, I conclude that by allowing the
hot dog vendor on its parking lot, Respondent did not waive its
valid no-solicitation, no-distribution rule and permit access to
the parking lot by the union.
Secondly, applying the theory of “similar distribution” men-
tioned in Wal-Mart Stores, supra at 1217, the distribution of
union handbills, a persuader activity, is not a similar distribu-
tion to the selling of food. In fact, it is so dissimilar that it is
difficult to find that Respondent waived its no-solicitation, no-
distribution policy by allowing the food vendor to sell hot dogs
in the parking lot. Respondent explicitly required Just Dogs to
abide by its no-solicitation, no-distribution rule.
And, finally, the facts herein are distinguishable from those
in Great Scot, where numerous vendors and commercial and
charitable activities were allowed. Knogo is also distinguish-
able in that there in so evidence therein that the food vendor
was subject to a valid no-solicitation, no-distribution rule.
On the other hand, although this argument is not made by the
parties, Feist specifically testified that she was on public prop-
erty at the time the guards asked her to leave. I credit this testi-
mony. Attempts to thwart employee rights to receive literature
from public property adjacent to the workplace constitutes in-
terference with, restraint, and coercion of employees. See
Lechmere, Inc., 308 NLRB 1074 (1992) (on remand from the
First Circuit following the decision of the Supreme Court). On
this basis, I find that Respondent interfered with, restrained,
and coerced employees.
E. Posting Literature in Cubicles: November 2002
There is no dispute that Respondent hired about 300 new
employees from March through November 2002. One impact of
the increased number of employees was that there were no
longer sufficient cubicles for each employee. Accordingly,
Respondent introduced a festival seating policy in September
2002. Under “Festival Seating,” when employees arrive for
their scheduled shift, they are to work in any empty cubicle in
the event their normal cubicle is occupied.
In early November 2002, several employees posted a picture
of actress Sally Fields from the movie “Norma Rae.” The picture
showed Fields holding a sign that said “UNION.” Supervisors
removed these pictures, citing a previously unpublished “two
personal items per cubicle” rule and also referring to Respon-
dent’s policy against solicitation. The “two personal items per
cubicle” rule, which was formalized in December 2002, allows
two personal items and two business items in each cubicle.
Until the “Norma Rae” pictures were posted, there is no dis-
pute that employees routinely posted religious, commercial, and

flowers for death in employee’s family not disparate application of no-
solicitation rule); Ameron Automotive Centers, 265 NLRB 511, 512 fn.
10 (1982) (nonemployee tool vendors who were permitted to solicit
sales on premises were not a basis for finding discriminatory enforce-
ment of no-solicitation rule); Intercommunity Hospital, 255 NLRB 468,
470 (1981) (United Fund, hospital guilds and philanthropies, Girl Scout
projects for the hospital’s benefit, drug salespersons and in-service
training representatives are a “recognized and permissible exemptions
from a valid no-solicitation rule. . . .”).
TELETECH HOLDINGS, INC. 931
social materials in their cubicles and these displays were know-
ingly allowed by Respondent. Based on this finding, I conclude
that to the extent a “two item per cubicle” rule existed prior to
December 2002, it was not enforced nor was the no-solicitation
policy enforced regarding cubicle items. The selective en-
forcement of such rules upon the advent of union items appear-
ing in cubicles constitutes disparate, selective enforcement. I
find that by enforcing this rule selectively, Respondent inter-
fered with, restrained, and coerced employees in the exercise of
their Section 7 rights. See, e.g., Wexler Meat Co., 331 NLRB
240, 242 (2000), and cases cited therein, holding that an em-
ployer 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.
F. Nonemployee Access to the Cafeteria: May 23, 2003
Since about November 2001, Steve’s Alley Espresso has
maintained a coffee cart in the cafeteria selling espresso-based
coffee products, pastries, and coffee mugs to Respondent’s
employees. Owner Steve Miller explained that he has a con-
tract with Respondent which requires that he maintain a license
to operate, proof of insurance, a health certificate, and adher-
ence to vendor guidelines. Miller explained that these vendor
guidelines prohibit his distribution of literature. The parties
stipulated that Respondent does not provide a fringe benefit for
employee food service.
Additional food vendors include Mountain Man Fruit & Nut
Company, Azteca Mexican Restaurant, Simon August Fine
Catering, Smiley’s Subs, and Eileen’s Filipino Foods. These
vendors usually report around 8:15 a.m. and leave around 2
p.m. These vendors are present 1 day per week except for
Mountain Man Fruit & Nut Company which comes once a
month. Snack Time Foods is allowed access to the facility to
service vending machines which contain candy, soda, ice
cream, and sandwiches.
On May 23, 2003, Cindy Feist, union organizer, and Pamela
Malara, international union organizer, visited Respondent’s
McWilliams Road premises. They entered the lobby area and
asked the security guard at the front desk, David, for the pa-
perwork necessary to be allowed to distribute union literature in
the cafeteria. Feist explained that she wanted the same paper-
work that the vendors were required to complete. The guard
asked where Feist was from and she responded she was from
the Union. Feist asked to speak with George Kirby, site direc-
tor.
Kirby came to the lobby about 5 minutes later. Feist asked
him if she could fill out the paperwork that allowed vendors or
visitors to visit the facility. She told Kirby she wanted to dis-
tribute union literature in the cafeteria. Kirby went to confer
with Deanna Henirich. About 15 minutes later, Kirby returned
and told Feist that she would not be allowed to fill out the pa-
perwork because she was not an employee and could not solicit
in the cafeteria. Feist argued that she understood that Costco
and Mountain Man had both been allowed to come onto Re-
spondent’s property to solicit for membership in their organiza-
tions.8 Kirby recalled that Feist claimed that she wanted access
similar to that allowed Azteca and Snack Time Foods.
In any event, Kirby did not allow Feist to enter the cafeteria
to distribute literature and/or solicit employees and he did not
provide paper work similar to that completed by vendors or
visitors. Kirby gave Feist Respondent’s labor counsel’s phone
number for further questions.
It is clear that Respondent banned Feist, a nonemployee un-
ion organizer, from distributing union literature in the cafeteria
but regularly allowed food vendors to distribute food, bever-
ages, and mugs in the cafeteria. However, based on my earlier
analysis of parking lot access, I find that an even stronger case
is made here that the presence of the vendors was not only dis-
similar to union solicitation and distribution, it was also work-
related. In this case, the cafeteria was an area dedicated to break
and lunch time, as a convenience for Respondent and its em-
ployees. By allowing food vendors limited access to the cafete-
ria for the purposes of selling food and food-related items, Re-
spondent did not waive its valid no-solicitation, no-distribution
rule.
VIII. ALLEGED PROHIBITION OF ACCESS FOR OFF DUTY EMPLOYEES
On November 7, 2002, Respondent published a rule stating
that employees must leave the facility within a reasonable time
after their working hours are over. On March 26, 2003, off duty
employee Wood was handbilling outside Respondent’s parking
lot on the public sidewalk. An employee who was in the park-
ing lot asked Wood for an authorization card. Wood went into
the parking lot to give the card to the employee. Guard Vela
approached Wood and told her to get off Respondent’s prop-
erty. There is no dispute that the employee who sought the
authorization card was blocking the lane into the parking lot
used for ingress. However, there is no evidence that this em-
ployee was told to move or leave.
In Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board held that, except where justified for business reasons, an
employer rule that denies off-duty employees entry to outside
nonworking areas of the employer’s facility is invalid. Respon-
dent has set forth no reason why off-duty employees may not
enter the parking lot area. Accordingly, I find that by requiring
off-duty employee Wood to leave the parking lot, Respondent
interfered with, restrained, and coerced employees in the exer-
cise of their Section 7 rights. See, e.g., Teletech Holdings, Inc.,
333 NLRB 402, 404 (2001).
IX. ALLEGED PROMULGATION AND MAINTENANCE OF RULE
PROHIBITING EMPLOYEES FROM CRITICIZING RESPONDENT OR
DISCUSSING TERMS AND CONDITIONS OF EMPLOYMENT WHILE ON
RESPONDENT’S PREMISES
Hayward testified that in response to concerns voiced by two
employees, he held two team meetings to stress positivism. On
December 11, Hayward held one such meeting, attended by
Oien, among others. According to Oien, Hayward told employ-
ees they were not to speak negatively about Respondent or
Respondent’s policies during working or nonwork hours. Ac-
cording to Hayward, he told employees at the meeting to be

8 There is no independent proof of these solicitations. Nevertheless,
this is included as part of the conversation, not to prove the assertions
but only to show these statements were made.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
respectful of their peers and use discretion in what they said
because this would foster a positive work environment. He
asked employees not to speak negatively while on the produc-
tion floor. Hayward’s meeting notes reflect,

Stay positive. It is not appropriate to talk down or say nega-
tive things about your job or TeleTech when on the floor
waiting for calls because it is disrespectful to those people
who take pride and enjoy working for TeleTech. I am simply
asking you to give courtesy when in the work environment, as
I know for a fact that a lot of people on this team appreciate
and like their jobs. Please just watch what you say, use discre-
tion, and contribute to a friendly environment that we can all
be more proud of.

Hayward, thus, admonished employees not to speak nega-
tively about their job or Respondent. According to his notes, his
admonishment applied when employees were on the floor wait-
ing for calls. According to Oien, the admonishment applied to
working and nonworking time. In either event, the admonish-
ment reasonably tends to restrain or coerce employees in the
exercise of Section 7 rights. See, e.g., Lexington Chair Co., 150
NLRB 1328 (1965), enfd. 361 F.2d 283, 287 (4th Cir. 1966)
(rule prohibiting employees from criticizing company rules and
policies unlawful). Further, announcement of such an admon-
ishment, even when no employee is disciplined pursuant to
such policy, “serves to inhibit the employees’ engaging in oth-
erwise protected organizational activity.” Farah Mfg. Co., 187
NLRB 601, 602 (1970).
CONCLUSION OF LAW
By asking employees what they thought about the Union;
telling employees that the Temple, Texas facility was closing
because the employees there tried to form a union and that is
what happens when employees try to form a union; requesting
that an employee remove union insignia from her clothing,
asking employees who were attempting to handbill for their
names; making notes while watching handbilling activity; pro-
hibiting union handbilling near the parking lot while; selec-
tively enforcing cubicle ornamentation or no-solicitation guide-
lines only after union literature was placed in cubicles; prohibit-
ing an off duty employee who was handbilling union literature
from entering the parking lot; and telling employees they could
not criticize their jobs or the company, Respondent has engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]