Marshall Field & Co.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this proceeding and rescinds its Order of October 9, 1951, dismissing the petition.2 We shall direct an election among all employees in the accounting, business, production, and sales departments, personnel office, and office of the planning director of the Employer at its Washington, D. C., plant, including all regular part-time employees, but excluding all other employees and all supervisors as defined in the Act. If a majority of the employees voting cast ballots for the Petitioner, they will be taken to have indicated their desire to be part of the unit of employees presently represented by the Petitioner (and the Peti- tioner may bargain for them as part of such unit), and the Regional Director conducting the election directed herein is instructed to issue a certificate of results of election to such effect. [Text of Direction of Election omitted from publication in this volume.] [CHAIRMAN HERZOG took no part in the consideration of the above Supplemental Decision and Direction of Election.] z Despite the belatedness of the Petitioner' s change of position , we do not believe that it would either effectuate the policies of the Act or be in the public interest to reaffirm our dismissal of the petition and to require the Petitioner to initiate a new proceeding before the Board. MARSHALL FIELD & COMPANY and RETAIL CLERKS INTERNATIONAL AssocIATION, LOCAL No. 1515-M. F., AFL. Case No. 13-CA-594. February 15, 1952 , Decision and Order On May 3, 1951, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter the Respondent, the Union, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to leave, the Respondent also filed a reply brief. At the request of the Respondent and the Union, oral argument was heard before the Board on November 20,1951. All parties were repre- sented by counsel and participated in the argument. 98 NLRB No. 11. MARSHALL FIELD & COMPANY 89 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, the oral argument before it, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner to the extent, and with the additions and modifications, indicated below.' 1. The Trial Examiner found that the Respondent's rules governing solicitation on its department store premises are in violation of the Act as to certain restrictions which the rules impose. The Board agrees with the Trial Examiner that the Respondent's rules, in part, violated the Act, but does not agree with the Trial Examiner as to the manner and extent to which the violation occurred. Marshall Field & Company is one of the Nation's largest department stores and is located in the heart of metropolitan Chicago. The charging Union is, and has been for some time, organizing Respond- ent's employees in a broad unit of all sales employees and personnel engaged in the handling of merchandise. The Respondent now, and for some time, has had a rule prohibiting solicitation for union mem- bership on "Company time." 2 The restrictions imposed by this rule upon the union membership campaign produced certain incidents in late 1949 and early 1950 which gave rise to the instant case. In considering the extent of the Respondent's prohibition against solicitation it is helpful to divide the physical facilities of the Re- spondent's store into three areas : (1) Selling areas, consisting of those areas where merchandise is displayed and sold, as well as comple- mentary facilities such as fitting rooms, alteration rooms, and fur storage; (2) nonselling public areas, consisting of store space open to the public but not utilized for selling purposes, such as waiting rooms, rest rooms, and public restaurants; 8 (3) and nonselling closed areas, I The Respondent and the General Counsel, following issuance of the Intermediate Report in this case, filed a joint motion to correct the transcript of testimony in certain particulars. The motion is hereby granted Thereafter, the Respondent filed a separate motion to correct the transcript as to a statement made by counsel for the Respondent during hearing The General Counsel and the Union filed statements in opposition to this motion, contending the correction would contradict other testimony offered by Respondent's witnesses Upon the entire record, including the oral argument made before the Board, we hereby grant Respondent's motion to correct the transcript. See footnote 4, snfra. 2 The rule as stated in the Respondent's employee manual reads, "Solicitation on Com- pany time for or against membership in any association, lodge, labor organization, or other groups of whatever nature [is forbidden]." The same source also prohibits solicita- tion on company time for contributions "to any cause or for any purpose" without per- mission as well as "Discussion of any subject on Company time in such manner as to interfere with the work of any employee" These rules. according to Respondent, were first adopted in their present written form in 1941 or 1942 but have existed in similar nature since 1869 However the Board, in Marshall Field & Company, 34 NLRB 1, noted that similar restrictions were first put into effect shortly after the onset of union activity within, the store in 1940 8 While restaurants operated by the Respondent within the store premises are, in many cases, open to the public and, in a sense, are sales floors also, they are included within the nonselling areas for reasons discussed hereinafter. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comprising those portions of the store where admission is limited to employees only. Under the rules as interpreted by the Respondent, solicitation on company premises for union membership is limited to the following situations : (1) Employees who are off duty may solicit other em- ployees who are off duty in some nonselling closed areas; and (2) employees off duty and nonemployee organizers may meet by appoint- ment, if discreet, in the public restaurants. There are qualifications, however, to the Respondent's "permission" of solicitation in either circumstance.4 All other solicitation within the store is prohibited. The Trial Examiner found that the Respondent's rules were in vio- lation of the Act insofar as they denied either employee or non- employee organizers the right to solicit anywhere in the nonselling public areas of the store, when the employees concerned were off duty. On the other hand, the Examiner found that the Respondent did not violate the Act by excluding nonemployee organizers from nonselling closed areas. All parties to the case filed exceptions to these findings. No party questions the Respondent's authority to prohibit any solicitation of its employees in the selling areas of its store. The Board has consistently held that such a prohibition is not a violation of the Act, because ". . . though both the solicitor and the person solicited are on their lunch hour . . . the solicitation, if carried on on the selling floor, where customers are normally present, might conceivably be disruptive of the Respondent's business." 5 Likewise, there is no question that the Respondent may prohibit solicitation where employees involved, either as solicitors or as the solicited parties, are at work or on duty s The dispute in the instant case concerns, rather, the demarcation of selling areas in which solicita- tion may lawfully be forbidden, and the question whether access by nonemployee organizers to store areas closed to the public, but fre- quented by off-duty employees, should be permitted. 4 There is no written rule allowing solicitation in the store ( except by implication in the rule prohibiting solicitation on company time) and the Respondent's witnesses were vague as to the exact extent any such activity would be permitted . The statement was made, however, that "if it is an employee area and the employees are on their own time, we probably wouldn't do anything about it. If it is in a working area we would prohibit soliciting of any kind . . . The only time anything would be said was if there was some complaint from an individual about the manner in which he was solicited " The exception as to solicitation in the public restaurants is also a matter of some dis- pute . At the hearing the manager of the Respondent 's special service department which polices the store indicated that this solicitation would be permissible because the Respond- ent would not know about it. However , elsewhere at the hearing and at the oral argument held in this case , the Respondent stated the store would not prohibit a known organizer from soliciting an employee in the public restaurants provided the organizer did not move from table to table and that he conducted himself discreetly. ' May Department Stores Company, 59 NLRB 976 , enforced 154 F. 2d 533 (C. A. 8) ; certiorari denied, 329 U. S 725. 6 See May Department Stores Company, supra; Meier if Frank Company, Inc., 89 NLRB 1016 ; Goldblatt Bros., Inc., 77 NLRB 1262; and cases cited therein . See also Peyton Packing Company, Inc, 49 NLRB 828. MARSHALL FIELD & COMPANY 91 In identifying what areas constitute selling space in which solic- itation may lawfully be prohibited, the Trial Examiner excluded from such space, public areas "such as aisles and corridors not immediately adjacent to selling floors, restaurants, elevators, escalators, stairways, waiting rooms, rest rooms, and a private street which is open for access to the store." He found that the Respondent forbade solic itation in any of these public nonselling areas except the restaurants, and further found that the Respondent thereby violated the Act.7 He also found that the Respondent violated the Act by forbidding solicitation without appointment and the circulation by solicitors from table to table in the public restaurants. The Board agrees only in part with these findings and the recom- mendations made pursuant thereto. The Respondent excepts to the Trial Examiner's delineation of non- selling space. It contends that the ban on solicitation in public nonselling areas of the store as well as selling areas is not violative of the Act, because it does not treat union solicitors differently from other individuals soliciting for any other cause, and also because Re- spondent considers such a broad rule necessary to prevent disruption of business. We cannot accept these particular contentions of the Respondent. The Respondent asserts that union organizers and employees acting in that capacity are not given treatment disparate from that accorded other solicitors. The record supports the contention that the Re- spondent attempts to exclude all soliciting for whatever purposes from the public areas of the store. It is thus true that union organ- izers are not discriminated against in comparison to other groups. That fact, however, does not render the Respondent's prohibition of union solicitation in nonselling public areas lawful. The right of employees to engage in concerted activity, of which solicitation on behalf of a union is an inherent part, is guaranteed by the Act, unlike solicitation for such purposes as insurance, boat rides, or newspaper subscriptions. The lack of any discrimination, therefore, between the treatment accorded union solicitors and other solicitors cannot excuse the denial of the statutory right protecting the former .8 The Respondent's second argument on this issue is basically the assertion that any solicitation in areas open to the public would dis- rupt its business. In this respect it asserts that its personnel are representatives of the store while in public areas, even though they are T The Trial Examinei apparently considered that the Respondent did not object to employee solicitors, as distinguished from nonemployee organizers , operating in most of these areas . The record is clear , however, that the Respondent prohibits any solicitation by employee organizers in any public areas of the store to the same degree as solicitation by nonemployees 8 This is , of course , not an instance where an otherwise valid no-solicitation rule is invalidated by application in a discriminatory manner. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off duty and are off the sales floor proper. While the Board has rec- ognized the need for some limitation of solicitation in retail depart- ment stores, it considers that the restrictions urged by the Respondent are too broad. The Board has consistently held that employees' non- working time, either before or after work, or during luncheon and rest periods, may be used for self-organizational purposes as the employees wish without unreasonable restraint, although the time is spent on company property .9 When this rule was applied to retail department stores, it was qualified to exclude from any solicitation only that portion of the store devoted to selling purposes. The quali- fication of the general rule was considered necessary, in the case of such stores, in order to prevent undue interruption or disturbance of the customer-salesperson relationship and the consequent disruption of store business. We do not believe, however, that solicitation in areas not used for selling purposes amounts to an undue interference with store business even though customers may be present in such places.1° Accordingly, the Board rejects the Respondent's contentions and finds, as did the Trial Examiner, that the Respondent violated the Act by prohibiting all solicitation by employee and nonemployee union organizers in all nonselling areas of its store when all employees con- cerned are off duty. The Board does not agree with the Trial Examiner, on the other hand, as to the exact areas in which such a prohibition was unlawful. Our findings in this regard are as follows : (a) We find, unlike the Trial Examiner, that the prohibition of union solicitation by either employee or nonemployee organizers in aisles, corridors, elevators, escalators, and stairways inside the store did not violate the Act. While such areas are not devoted to selling purposes, it is patent that solicitation carried on in such limited space may create traffic and safety hazards tending to disrupt and interfere with Respondent's business to a serious degree.- (b) A majority of the Board finds unlawful, however, as did the Trial Examiner, the Respondent's blanket prohibition on solicitation in public rest rooms and waiting rooms in the store 12 Unlike our 9 See Peyton Packing Company/, Inc , 49 NLRB 828 10 This conclusion is supported by the court's statement in the May case to the effect that, "Under the Board's decision, the Company is entitled to prohibit union solicitation on the selling floor at all times, but it may not prohibit such solicitation off the selling floor, by and of employees , all of whom are on nonworking time (such as established luncheon or per- mitted rest periods ) The term selling floor cannot be declared to be unworkably vague, for it obviously would appear to embrace those parts of the store where sales of commodities are made to customers in general course and to exclude those parts not so used and where customers normally are not present (o, such purposes " (Emphasis supplied.) May Department Stores Company, supra 31 Cf. N. L R. B. Y. Kentucky Utilities Co., 191 F. 2d 858 ( C A. 6), enforcing, as modified, 83 NLRB 981 12 Chairman Herzog dissents from the Board's finding as to the public rest rooms and waiting rooms and would find that the Respondent lawfully prohibited union solicitation in such space , as well as in other nonselling areas, as set forth in his separate opinion. MARSHALL FIELD & COMPANY 93 dissenting colleague, we find a readily discernible distinction in the situations presented by solicitation in the Respondent's public rest rooms and waiting rooms and in the remainder of the store. While all of Respondent's store area is, in a sense, of course, "inextricably inter- woven" with the Respondent's business, it is an entirely incorrect assumption to conclude that the impact produced by union solicitation in any portion of the store would be the same. Indeed, if the contrary were true, the Board would have had no reason to distinguish "selling areas" from other public portions of department stores in the long line of precedent herein cited.13 Public waiting rooms and rest rooms in Respondent's store, it is clear, cannot be considered to be selling space, nor do they present the problem peculiar to aisles and other interior store traffic channels. Solicitation in areas where sales are being made, it is patent, may have a direct, immediate, and detrimental effect upon such sales. Solicitation in aisles, corridors, escalators, and elevators interconnect- ing sales areas could directly affect the passage and safety of customers in such areas. Solicitation in public waiting rooms and rest rooms, however, if subject to reasonable restrictions, could have only a slight, if not nonexistent, effect upon public use of such facilities and no adverse effect on sales activities. To equate the situations presented by solicitation in these areas with that presented by such activity in the remainder of the store, is, therefore, to ignore reality at the expense of employee rights to concerted activity. Accordingly, we find no compelling reason for denying off-duty employees the right to solicit and be solicited for union membership in such space. Far from con- verting these areas into organizational arenas, however, we find such solicitation permissible only insofar as it is not incompatible with the purposes for which the areas have been set aside for public use. The Respondent may adopt reasonable rules to insure that solicitation is carried on only as an incident to normal use of such facilities. (c) The Board also finds that the Respondent's ban on solicitation in the "private street" running out of doors on the Respondent's prem- ises. is unlawful. This private street, Holden Court, traverses the center of Respondent's store at street level. It is open to the public for pedestrian use. The record contains no cogent reason for denying employees the right to solicit or be solicited for union membership when off duty in this area, unlike the case of internal facilities such as aisles, corridors, escalators, stairways, and elevators, all of which are adjacent to selling areas. (d) The Board does not agree with the Trial Examiner's finding that the Respondent's actual limitations on solicitation in the public restaurants it operates inside the store violated the Act. For the '$ See, for example . May Department Stores Company, supra; Meier & Frank Company, Inc., supra ; Goldblatt Bros , Inc, supra ; J. L. Hudson Company, 67 NLRB 1403. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convenience of its customers, the Respondent operates a group of restaurants occupying a large portion of the seventh floor of the store, as well as a "Budget Dinette" located in the store basement. The Respondent contends that these public restaurants are sales areas which may lawfully be closed to solicitation, but asserts that it does in practice permit employees and nonemployee organizers to meet there by apointment 14 It does not permit union solicitors to circulate from table to table. The Board does not agree with the Respondent's general contention that prohibition of all solicitation in public restaurants is lawful. While it is true that sales of merchandise, in this case food, are made to customers in the restaurants, the situation with regard to store restaurants is otherwise markedly different from that existing in the admittedly selling portions of the store. Customers patronizing the restaurants, for the most part, are placed at separate tables and are served by restaurant employees who are not, and who have not been, the subject of solicitation by the charging Union. The comparative isolation of customers from each other, coupled with the fact that no solicitation is carried on among employees on duty in the restaurants, make remote the possibility of substantial interference with the Re- spondent's business by solicitation of off-duty employees.'-' The Respondent's specific rule regarding solicitation in the public restaurants, however, appears to be lawful and suitable to the par- ticular situation in such areas. The restrictions imposed by this rule are designed to insure that solicitation is carried on in the public restau- rants only as an incident to normal use of such facilities. As such, they are entirely consistent with the Board's holding, above, as to permissible restrictions in other nonselling public areas. This situa- tion, it is clear, would be appreciably changed were the Trial Ex- aminer's recommendation accepted that organizers be allowed to move freely from one table to another. Such solicitation seriatim would basically alter those circumstances which differentiate the res- taurant areas from the selling floors. Moreover, it would be incom- patible with normal use of these facilities at the expense of the Respondent's business. Accordingly, the Board finds no violation of the Act in the Respondent's existing rule regarding solicitation in its public restaurants. " The Board accepts the Respondent's assertion that its rules do not prohibit solicitation on a limited scale by union organizers in its public restaurants. It should be noted, how- ever, that in enforcing this rule , the Respondent , as developed infra, attempted to exclude all union organizers from the entire premises of Respondent's store including these public restaurants. is Cf. Goldblatt Bros, Inc, 77 NLRB 1262. In finding a ban on solicitation in the lunchroom in that instance not to be in violation of the Act, the Board noted, as being particularly important, "the fact that employees of the restaurants were eligible for mem- bership in the two unions which are competing for the right to represent the Respondent's employees, and that the restaurant employees had been solicited for membership in these unions." MARSHALL FIELD & COMPANY 95 Upon the entire record, the Board finds that the Respondent, by pro- hibiting solicitation by employee and nonemployee union organizers in its public rest rooms and waiting rooms and the private street run- ning on Respondent's property, when all employees concerned are off duty, violated Section 8 (a) (1) of the Act. 2. The Trial Examiner found that the Respondent did not violate the Act by prohibiting solicitation by nonemployee organizers in non- selling areas of the store closed to the public. These areas include two cafeterias-located in the second subbasement and the twelfth floor of the store building, respectively-both of which are closed to the public and are operated for the sole use of store personnel. There are no selling areas in the general vicinity of either of the cafeterias. Other nonselling areas closed to the public include stock- rooms, workrooms, cloak rooms, locker rooms, and an employee library. The Examiner based his conclusion that the Respondent did not vio- late -the Act by prohibiting solicitation in these areas on the premise that organizers who are not employees of the Respondent have no greater right of entry into such closed portions of the Respondent's property than other members of the public. He further found that there were no special circumstances extant herein which would com- mand limitation of the right to exclude union organizers along with the general public. We agree only in part with these findings, dis- agreeing specifically with respect to the employee cafeterias. The Board has not previously dealt directly with the legality of the exclusion of nonemployee organizers from "employees only" areas of a department store. As noted by the Trial Examiner, in certain in- stances, notably those concerning lumber camp, maritime, and com- pany town situations, the Board has held that nonemployee union representatives must be granted entry to company property where the physical limitations of the employment locale prevent employees from gaining access to outside contacts for long periods of time or except at the cost of considerable effort.'° It is patent that the Respondent's department store is not such a locale. But that does not dispose of the issue, for property rights which impinge upon employees' rights of self-organization do not necessarily remain inviolate except in those specific situations. In the Republic Aviation and LeTourneau Com- pany cases, as well as others following them, the Board considered the impact of certain plant rules in situations where the physical loca- tion of the plant did not make solicitation away from company property ineffective to reach prospective union members .17 The Su- preme Court, in those cases, sustained the Board's finding that certain Is N. L R B. v. Cities Service Oil Company, et al., ]22 F 2d 149 ( C. A. 2) ; N. L. R B. v. Weyerhauser Timber Company , 132 F. 2d 234 ( C A. 9) ; N L R. B v Stowe Spinning Com- pany. 336 U. S 226 ; and Phillvps Petroleum Company, 92 NLRB 1344 17 See Renubtic Aviation Corporation v. N. L. R. B.; N. L. R. B. v LeTourneau Company of Georgia, 324 U. S. 793 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limitations upon union activity were such serious impediments to the rights of self-organization as to override the property rights on which the limitations were based."' The question here is whether the denial of access by nonemployee organizers to nonpublic, nonselling areas in Respondent's store con- stitutes such an impediment to employee self-organization and con- certed activity."' At the hearing in this case it was credibly testified by a witness for the charging union that without access by nonemployee organizers to such areas, organization of the employees would be a practical impossibility. This conclusion was based upon the lack of access to employees at other times because of the physical location of the store on the busiest streets of a large metropolis, the multitude of entrances and exits, the impossibility of distinguishing between customers and employees at points of access, and the variety of hours and compensation of employees .2' The factors noted by the charging Union, it is clear, act to prevent effective contact with and among employees. Yet such limiting circumstances, on the other hand, could and do exist in whole or in part in other types of establishments without unduly impeding self-organization and concerted activity. There is an additional complication, however, in the instant situation which is not present in these other enterprises. As already indicated, the Respondent, as a retail department store, may lawfully prohibit all union activity on the selling floors which comprise a large portion of its plant. The off-duty time of employees spent in these areas, which elsewhere could be used for organizationygl purposes, is subjected to these restrictions which have been imposed by the Respondent and approved by the Board. Thus, not only is communication with and among employees confined by the limitations noted by the charging 16 Cf. Newport News Children's Dress Co ., Inc, 91 NLRB 1521 ; and Monolith Portland Cement Company, 94 NLRB 1358 . In these cases, it was held that distiibution of litera- ture on plant property, as compared with other concerted activity, may be subjected to reasonable restraints by the Employer , and, in some situations, does not have to be per- mitted on any portion of the premises. It is the right of the employees to be contacted in nonpublic areas of the store for purposes connected with self-organization which is at issue heiein , rather than , as indicated by the Trial Examiner , a question of whether union organizers have any gieater privileges than other members of the public. 20 The store is located in the Loop , the heart of Chicago The streets surrounding it, unlike many plant sites , are heavily used by persons other than employees The store is open from 9 : 15 a in to 5: 45 p. in . to the public . The great majority of the employees arrive between 8: 30 and 9 . 00 a. in , and 1eaie between 5 : 15 and 6:00 p in The store has entrances whic': open directly into the subway and elevated systems of Chicago, as well as 10 street floor entrances to the main store and several others for the adjoining men's store. Regular employees working a full week number between 7 and 8 thousand, while 2,500 to 3 ,000 "general employees" work a few days a week and an indefinite number of hours. The "general employees " in most instances report for work after the store is open and leave before the closing hour The vast majority of the store personnel , again, are on either a straight commission basis of remuneration or a commission plus a salary. The Union contends that the competitive nature of this type of wage system makes organ. zation even more difficult, because it discourages cooperation or even common discussion among employees and that an outside organizer would receive a more cordial hearing than a competing coworker. MARSHALL FIELD & COMPANY 97 Union, but it is, by lawful rule, rigidly prohibited and nonexistent at any time throughout a large portion of the store. The Respondent's employees, the record clearly shows, therefore face serious handicaps in attempting self-organization. Before and after working hours they have only a limited, and in some cases non- existent, opportunity to contact and confer with their fellow workers. Due to the store's continuous business activity throughout the work- day, and the staggered relief periods, neither is there opportunity, such as is furnished in the ordinary plant lunch hour or shift change, for employees to circulate freely among other off-duty employees at' their work stations. Contact between employees, insofar as self- organization or other concerted activity is concerned, must accordingly be restricted to those instances when employees chance to be off duty at the same time, in the small portions of the store where such activity is allowed. Upon these facts the Board is convinced, and finds, that the inter- action of the valid rule prohibiting solicitation in selling areas with the other factors restricting employee contact and communication cannot but be effective in inhibiting self-organization and other con- certed activity to a serious degree. With this background, the Re= spondent's property right to restrict access to nonpublic areas of its store must be examined and weighed as to its effect upon the rights guaranteed Respondent's employees by Federal statute. The uncontradicted evidence at the hearing in this case shows that the major gathering points for employees off duty during the working day are the employee restaurants and cafeterias operated inside the store building by the Respondent. This is due, in part, to the con- venience of such restaurants and also to the Respondent's policy of charging lower prices for food sold in its employee facilities. The present denial of opportunity to these large groups of employees in the cafeterias to contact nonemployee organizers, it is clear, is a serious additional obstacle to the organization and concerted activity of Respondent's employees. Inherent in the right to concerted activi- ties is the right and opportunity to contact, communicate, and be in- structed as to group action.21 Because of the peculiar conditions 21 while Section 7 of the Act does not refer specifically to any right to information, that may be assumed as inherent in the guarantees of the section Not only is communication among employees a pieiequisite to concerted activity including self-organization , but there is no question but that self-organization can be and is severely hampered by lack of assistance from trained, full-time organizers . As the Supreme Court said in Thomas v. Collins, 323 U S 516, a decision concerning the validity of a Texas statute requiring registration of organizers, "The campaign , and the meeting were incidents of an impend- ing election for collective bargaining agent previously ordered by national authority pursuant to the guarantees of national law The guarantees include the workers' right to organize freely for collective bargaining And this comprehends whatever may be lawful to accomplish and maintain such organization. It included , in this case , the right to designate Local No. 1002 and any other union or agency as the employees ' representative It included their right fully and freely to discuss and be informed concerning this choice, privately or in public assembly Necessarily correlative was the right of the a nion, ,'s members and officials . . . to discuss with and inform the employees concerning matters involved in their choice " ( Emphasis supplied ) 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD existing in department stores, Respondent's employees are severely hampered in finding opportunity for communication among them- selves, so that their need for outside consultation is therefore more pressing. In the absence of any showing of harm or undue burden to the Respondent, and we find no such showing herein'22 the barrier thus erected by exclusion of nonemployee organizers from the em- ployee restaurants and cafeterias must be considered an unreasonable impediment to employee self-organization, outweighing the property rights incident thereto 23 The Board finds, contrary to the Trial Examiner, that the Respond- ent's rule prohibiting access to employee restaurants and cafeterias by nonemployee union organizers acts to deny essential assistance to employees who, by the force of circumstances of their employment and the lawful rules prohibiting free use of off-duty time, are uniquely handicapped in matters of self-organization and concerted activity. Accordingly, we find that the Respondent's rule, insofar as it denies access to employee restaurants and cafeterias by nonem- ployee union organizers, is in violation of Section 8 (a) (1) of the Act.24 However, with regard to all other nonselling areas closed to the public, we find, as did the Trial Examiner, that the Respondent's rule did not violate the Act by excluding nonemployee organizers together with other members of the general public.25 3. The Respondent's rule does not prohibit solicitation by em- ployees in nonpublic "employee areas," when both the solicitor and. the solicited employee are off duty. It does prohibit solicitation by off-duty employees in nonpublic "working areas." 2s As noted previ- ously, except for selling areas in retail department stores or under 22 Cf. Republic Aviation Corporation v. N. L. R. B.; N. L. R. B. v.-LeTourneau Company of Georgia, supra; and Caldwell Furniture Company, 97 NLRB 1501, as to the burden of proof arising in such instances. 23 The Trial Examiner stated that the Respondent should not be required "in the absence of bad faith, to serve the public at the lower rates prevalent in the employee cafeterias or to increase such rates." This position presupposes that organizers who were not employees would have to be admitted in great numbers or, indeed , that the Respondent would have to accord them the privilege of using the facilities for eating . On the contrary the Re- spondent may lawfully require that only a limited number of organizers compatible with the size of the cafeterias and the number of employees using them be admitted, and is under no obligation to allow purchases to be made by these organizers in such facilities. 24 We reject the contention of the General Counsel that the rule is invalid because it had been discriminatorily enforced , in that emplo3 ees were allowed to take guests other than organizers to the cafeterias. The Trial Examiner, while not ruling directly on the issue, correctly reflected the record in suggesting that the evidence did not substantiate a showing of discrimination. 25 Many of these areas are workrooms or stockrooms where the employees concerned would not be off duty at the same time or in sufficient numbers to make solicitation possible without disruption of the Respondent's business . Other areas, such as cloak and locker rooms, would not presumably be occupied by off-duty employees in large numbers through- out most of the day. 26 The Respondent draws a distinction between "employee" areas, which apparently consist of employee facilities such as restaurants, locker rooms, etc., and "working areas," which are also closed to the public , but would encompass stockrooms , workrooms, and the like. See footnote 4, supra. MARSHALL FIELD & COMPANY 99 other special circumstances, the Board has consistently held that em- ployees may not be prohibited from engaging in concerted activity when they are off duty. Accordingly, we find, as did the Trial Ex- aminer, that the area in which such interemployee solicitation must be permitted includes all the nonselling area which is closed to the public, except such space which is reasonably closed to discussion such as the employee library and those areas to which the employees. concerned are not allowed free access.27 Insofar as the Respondent's rules prohibit off-duty solicitation by employee organizers in the nonpublic working areas, subject to the qualifications noted, we find the Respondent violated Section 8 (a) (1) of the Act. Unlike the Trial Examiner, and as set forth in our preceding findings, we find that the Respondent must also allow such off-duty solicitation in the nonselling public areas of the store defined above in paragraph numbered 1, and within the limitations there stated. 4. During the organizational campaign at the Respondent's store various incidents occurred which are alleged as separate violations of Section 8 (a) (1). It is contended that the Respondent interfered with, restrained, and coerced its employees in their exercise of rights guaranteed under Section 7 of the Act in that the Respondent illegally ejected, assaulted, imprisoned, and abused employee and nonemployee organizers; and that the Respondent interrogated, threatened, and made promises of benefit to employees. The first question presented by these allegations is whether the Respondent's conduct toward employee and nonemployee organizers during the organizational campaign was in violation of the Act. The Trial Examiner did not discuss the individual incidents of alleged illegal actions toward organizers on the part of the Respondent in any detail, but made a number of broad findings to the effect that the Respondent's conduct in these instances was not unlawful. The Board does not agree with the Trial Examiner's conclusions in this regard. Loren E. Edwards, head of Respondent's special service department, testified at some length during the hearing as to the Respondent's attitude toward organizers who were active in its store. 'According to Edwards the special service department, which is charged with the duty of protecting and policing store property, has instructions to prohibit soliciting by nonemployee organizers "in any place in the store." He further testified that upon hearing that the Union had commenced active organization in the store, he issued instructions to his special service force "that they were to notify these nonemployee 27 Employees who cannot normally enter certain work space , such as workrooms and stockrooms, may not gain entry simply because they wish to discuss union activity with off-duty employees assigned to such duty stations. However, the latter individuals retain their right to discuss such activity among themselves when on their own time in such areas , except where this would interfere with the work of other employees in such areas. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizers that they were not allowed to solicit in the store, to ask them to leave the store and stay out of the store." In May or June 1950, he issued further instructions to the special service department to "notify the organizers who consistently refused to stay out of the store that we did not want their business in the store, that they were to stay out of the store, and if they came in the store again we would consider it trespassing and have to place them under arrest." 28 In the face of this total exclusion of nonemployee union organizers from the Respondent's store, the charging Union conducted a vigorous campaign to organize the Respondent's employees during part of 1949 and throughout a substantial portion of 1950. Organizers Clark, Lennon, Newhall, and Tershy, none of whom is an employee of the Respondent, solicited union membership among the employees in the store during that period. The record shows that, with few exceptions, each time an organizer was found by Respondent's special service force to be present in any part of the store, the organizer was ordered to leave the premises. There was testimony as to a number of these instances. In June or July of 1949, Organizer Lennon attempted to pass out leaflets in a first-floor building corridor of Respondent's men's store, which contains elevators servicing other tenants in the building, when he was accosted by a special service employee who ordered him to leave.29 Upon Lennon's refusal to do so, a policeman was called but the incident ended without arrest upon Lennon's eventual departure. In November 1949, Lennon was ordered to leave the store after being found in the twelfth floor employees' cafeteria. 0 Organizer Clark was ejected from the twelfth floor cafeteria on separate occasions in April and May 1950, by Respondent's agents. 28 Edwards testified at other times during the hearing, that "I told them [the special service agents ] to tell them [ the nonemployee organizers ] to stay out of the store, that they had no right in the store." At another point in the hearing the following colloquy occurred: Q. (By the General Counsel ) Mr Edwards, as I understand your testimony this morning, your policy is to exclude union solicitors whom you know to be union solicitors from all parts of the store , is that correct? A. Our policy is to exclude anybody who is soliciting The only time we have excluded union solicitors is in this case when they refused to stay out and said that we couldn't keep them out That is the only occasion. Q Where they have refused to stay out of the store you have had them arrested? A. Where they have refused to stay out or say that they refuse to stay out, that we can't keep them out That is the only time , the only occasion we have had to exclude them in this manner . We tried to ask them to stay out Q Well, you asked them to stay out because your policy was to exclude them in the first place, was it not9 A. That is right. 20 In all of the incidents described herein, no contention is made that the representatives of the Respondent concerned were not fully responsible agents of the Respondent. Unless otherwise noted, these agents were members of Respondent 's special service department which is charged with the duty of protection of store property 30 As this and the preceding incident involving Organizer Lennon occurred more than 6 months prior to the date of service of the charge in this case , we do not make any finding on these specific incidents but note them here as background for later events. MARSHALL FIELD & COMPANY 101 On another occasion in May 1950, she was ejected from the basement employees' cafeteria. On other occasions, the effort by Respondent's agents to prevent entry into the store by nonemployee organizers resulted in more seri- ous actions than peaceful ejection. On June 19, 1950, Clark and Organizer Newhall were soliciting membership from an employee, while standing near the basement employees' cloak room, when they were approached by special service agents of the Respondent who con- fiscated an authorization card from the employee being solicited. Clark and Newhall were then ordered to leave the store or be arrested for trespassing. Later the same day, Clark and Newhall were in a public cafeteria on the seventh floor when they were approached by special service agents, who told Clark she was to be arrested for trespassing.31 Clark and Newhall were then removed from the cafe- teria by force, taken to a police station, and charged with trespass and disorderly conduct. On the following day Clark and Newhall re- turned to the same cafeteria. They were again stopped and were told that they would be arrested if they were found in the store thereafter. They left without incident. On July 3, Clark and Organizer Lennon were leaving the same public cafeteria when they were stopped by special agents, who warned Lennon that he would be arrested if he did not stay out of the store in the future. Respondent then told Clark she was under arrest. Clark refused to accompany the special service representatives and proceeded with Lennon to the main floor where after some discussion they left the store. Outside the store, Clark and Lennon were arrested and taken to a police station where they were charged with trespass. They, in return, filed charges of false arrest and imprisonment against the Respondent.32 Nonemployee organizers were ejected from certain areas of the store with force or threats on other occasions. On June 12, 1950, Organizer Lennon was soliciting in the corridor adjacent to one of the floor 31 This cafeteria is known as the Crystal Buffet. At the time of these incidents, it was open to both public and employees for a portion of the day and to employees only after S p. m. In all the incidents noted as having taken place in this area, the organizers entered the cafeteria at a time when it was open to the public. On the June 19 occasion, Clark testified that Newhall had left the table to speak to an employee elsewhere in the room when she was approached by Special Service Agents Edwards, Price, and Donegan and it police officer named Scully. She testified further that she was first told she was under arrest and was denied permission to call her attorney as was Newhall who returned to her table , that she was forcibly taken to a nearby room in the course of which removal she was held and pounded on the back , that she and Newhall were detained for 45 minutes in this room and then taken to a police station. Newhall confirmed this testimony Edwards. the head of the special service department, testified that when he found Clark in the cafeteria, she said she would not leave the store and that it was necessary to take her forcibly out of the area Donegan admitted holding Clark's arm behind her back in forcing her to leave the room but denied beating Clark. Edwards also testified that Newhall was given an opportunity to leave without arrest but refused Price generally confirmed the testimony of Edwards and Donegan. 3z The parties are in substantial agreement as to the main details of this incident 998666-vol 98-53-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee restaurants when he was stopped by Lloyd Richmond, man- ager of retail employee relations, who told him to stop soliciting and leave the store.33 On December 8, 1950, Organizer Tershy was solicit- ing union membership in the second floor men's public rest room of the store. He succeeded in getting an employee to sign an authoriza- tion card, but this card was thereafter confiscated by a special service agent who accosted Tershy and questioned him as to who had sent him to solicit in the store. This questioning took place in front of the employee who had been solicited by Tershy and the authorization card was retained by the special service agent.34 The first premise of the Trial Examiner is that the Respondent did not violate the Act by ejection, threat of arrest, and causing the arrest of organizers, because such action was motivated by the Respondent's well founded apprehension that the organizers would otherwise vio- late the rule against solicitation on selling floors. His conclusion that the Respondent did not violate the Act is based and dependent upon a finding that the Respondent's motive in the matter was "to protect itself against these organizers' violation of the rule to the extent that it lawfully barred solicitation on the selling floors...." The record does not support this finding. Careful examination of all incidents noted in the record of ejection, threat of arrest, and actual arrest of organizers points clearly to the conclusion that the Respondent was not concerned with protection against solicitation in selling areas, but was intent upon prevention of entry by any nonemployee union organizers into any part of the store. The incidents show a consistent and undeviating pattern of total exclusion. The Trial Examiner's assumption that such total exclusion was militated by a legitimate fear that the lawful rule against solici- tation on selling floors would be violated is without substantiation. It is clear from the testimony of Edwards that the Respondent adopted a policy of excluding all union organizers from the store at the begin- as The evidence is conflicting as to this incident , which concerned Lennon, Clark, Rich- mond, and Prekel, a section manager in charge of housekeeping service. The parties are agreed that Lennon was standing talking to an employee when Richmond and Prekel approached him Richmond told Lennon that he was not allowed to solicit in the store. Lennon testified that he then offered to leave if requested , but that Richmond told him to wait until Prekel called a special service agent to escort him from the store. Prekel and Richmond , while not agreeing in detail as to what was said, both testified that Lennon refused to leave. When Prekel returned from calling a special service employee , Lennon started walking toward the escalators . Richmond attempted to grasp him by the arm but Lennon twisted free. At approximately this time Clark came upon the scene. Richmond and Prekel testified that Lennon started to hit Richmond , and Clark commenced pushing and yelling. Lennon testified that Clark merely told them to leave Lennon alone and that he did not strike Prekel or Richmond . Prekel , at about this time, forcibly pushed Lennon up against a wall. According to Lennon , Prekel then threatened him. Upon the arrival of special service agents, the crowd which had gathered was dispersed and Lennon and Clark were allowed to leave. Clark did not testify as to the details of this incident. 19 Tershy's testimony as to this incident was not contradicted by any witnesses for the Respondent. MARSHALL FIELD & COMPANY 103 ning of the union membership campaign, without any history of vio- lation of the rule within Respondent's knowledge which would in any way justify the prevention of entry into any portion of the store. Nor did the Respondent's witnesses cite such a fear as the basis for placing the total exclusion policy into effect. In reaching his conclusion, the Trial Examiner also relied in large measure on the fact that the nonemployee organizers involved in the expulsion and other incidents had each, at one time or another before their ejection, solicited on the selling floors of Respondent's store. He further stated that "in each such [ejection] case it [the Respondent] pointed to improper activities on the selling floor or in `Employees Only' areas, and its exculpation . . . is based thereon." It is true, and the record shows, that the ejected organizers had all, on at least one occasion, solicited employees on the selling floors of Respondent's store. The record does not show, however, that the expulsions were actually made in each of these instances upon discovery that the organ- izer involved was engaged in a violation of a legitimate rule against solicitation. Rather, it was the mere discovery that a union organizer was on the store premises which activated Respondent's agents. As noted, a number of these ejections took place when the organizers con- cerned were in areas where they might lawfully solicit. In other instances there was no clear evidence that the organizers were soliciting rather than shopping or engaging in some otherwise presumably innocent activity. The arrests, indeed, followed appearance-in public cafeterias by the organizers, areas in which even the Respondent's own rule would permit limited solicitation. It is not necessary, however, to examine or make specific findings as to each of these expulsions, threat of arrest, and arrest incidents in detail or to determine the existence or absence of a violation of a lawful rule by the organizers. Nor do we find occasion here to rule on the propriety or legality of ejection or arrest of individuals breaching a legitimate no-solicitation rule. It is patent, and we find, that these incidents merely establish beyond doubt the existence of the policy of the Respondent set forth at the hearing by the Respondent's own witness : a policy of attempted prevention of entry into the entire store under any circumstances by union organizers intent upon solicit- ing Respondent's employees. Implementing this policy in its execu- tion was the Respondent's use of expulsion, threat of arrest, and arrest to stifle any communication on its premises between employees and non- employee union organizers. Such a policy, by itself, and through the measures used to execute it, was a violation of the rights guaranteed Respondent's employees by the Act. The Trial Examiner further found that the Respondent did not use unnecessary or improper force in the ejection of organizers and 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the arrests and jailing of the organizers on charges filed by Re- spondent were neither illegal per se nor aggravations of prior unfair labor practices. The evidence, as has been noted, is conflicting as to many of the details of incidents in which physical disturbances ac- companied ejection of the nonemployee organizers from Respondent's store. There is no question, however, that the Respondent chose vio- lent and public measures to eject organizers on certain occasions in preference to other more inconspicuous, yet presumably effective, actions.35 In choosing forcibly to remove organizers from the store in the presence and hearing of Respondent's employees at a place of public gathering, the Respondent resorted to actions which were clearly inconsistent with any desire to prevent disturbance of custom- ers, employees, and its business. Finally, the Trial Examiner found that the seizure of union-authori- zation cards was not unlawful interference. The Board disagrees with this conclusion. The seizure of authorization cards is clearly illegal interference with the employee rights protected by Section 7. Nor can the contention be made that such seizure was only a part of Re- spondent's efforts to ascertain whether solicitation was being carried on in improper areas of the store. Such information was available to Respondent without such seizure.36 Accordingly, the Board finds that the Respondent, by ejection, ex- clusion, and arrest of nonemployee organizers 37 as part of a policy of preventing such organizers from gaining access to any of Respondent's employees in any part of Respondent's store and by seizure of authori- zation cards, interfered with its employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act. The Board also finds, as did the Trial Examiner, that the Respond- ent, through the interrogation and promise of benefit to employee Milnes for opposition to the Union, interfered with the concerted activities of its employees in violation of Section 8 (a) (1) of the 55 The Respondent could have instigated arrests, which it considered necessary, outside the store and the presence of employees and public. 30 The record contains two instances in which authorization cards were seized. In the first instance, which took place in the area around the basement employees' cloak room on June 19, 1950, Newhall testified that he could not remember whether the card was returned to him or not In the second instance, in which Organizer Tershy was involved on Decem- ber 8, 1950, it was testified without contradiction that the card seized was retained by Respondent's agent. In both these instances, the record shows, there was ample opportunity for Respondent to secure all pertinent and lawful mfoimation as to where and whether solicitation was taking place 37 All the incidents relied upon in the Board's finding on this issue relate to exclusion or arrest of nonemployee organizers The Trial Examiner also found that the Respondent did not violate the Act by ejecting employee Schwartz from its store when the latter was found soliciting in the first subbasement on February 3, 1951 The Board makes no finding what- soever on this incident, as the record does not show whether the employee being solicited was on duty or not. Nor is there evidence to make any presumption thereon, as did the Trial Examiner. MARSHALL FIELD & COMPANY 105 Act."' We further find that the record does not sustain the allegations that the Respondent violated the Act by the alleged interrogation of employee Sennett and the alleged surveillance of Organizer Clark in June 1950.39 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Marshall Field & Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Prohibiting nonemployee union organizers from soliciting employees on behalf of a union on the employees' own time in public areas, except that such solicitation may be prohibited in selling space, aisles, corridors, elevators, escalators, and stairways, and may be reasonably regulated in public restaurants, waiting rooms, and rest rooms. (b) Prohibiting access in reasonable numbers during the business day by nonemployee union organizers to employee cafeterias and restaurants, and prohibiting such organizers from soliciting employees off duty in such cafeterias and restaurants on behalf of a union. (c) Prohibiting employee union organizers from soliciting for a union, when all employees involved are on nonworking time, in any portion of the Respondent's premises, except that such solicitation may be prohibited in selling space, aisles, corridors, elevators, escala- tors, stairways, and in such other areas which are reasonably closed to discussion or to the employees involved, and may be reasonably regulated in restaurants, waiting rooms, and rest rooms. (d) Preventing entry of nonemployee organizers into areas- of the Respondent's store where nonemployee organizers may lawfully solicit employees for union membership, by ejection, threat of arrest, and arrest. (e) Interrogating its employees concerning their union affiliations, activities, or sympathies, and promising benefit in connection therewith. "The Trial Examiner 's findings and conclusions as to the interrogation of Milnes are supported by the record Contrary to the Respondent's contention, no basis appears in the record for contesting the Trial Examiner 's credibility findings on this incident. In view of our findings as to Respondent 's violation of Section 8 (a) (1) In other respects , neither do we view the interrogation of Milnes as sporadic and isolated conduct as suggested by the Respondent. ^ The Board makes its finding on the surveillance incident on the ground that the evidence does not support the allegation . We do not accept the rationale suggested by the Trial Examiner in his discussion on this incident. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Seizing and retaining authorization cards in the possession of union organizers or employees. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organi- zation, to form labor organizations, to join or assist Retail Clerks International Association, Local No. 1515-M. F., AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the purposes of the Act : (a) Rescind immediately its rule against solicitation, insofar as it prohibits nonemployee union organizers from soliciting employees on behalf of a union on the employees' own time in public areas, except that such solicitation may be prohibited in selling space, aisles, corridors, elevators, escalators, and stairways, and may be reasonably regulated in public restaurants, waiting rooms, and rest rooms. (b) Rescind immediately its rule against solicitation, insofar as it prohibits access to employee cafeterias and restaurants by nonemployee organizers in reasonable numbers during the business day, and insofar as it prohibits solicitation on behalf of a union by such organizers of off-duty employees in such restaurants and cafeterias. (c) Rescind immediately its rule against solicitation, insofar as it prohibits employee organizers from soliciting employees on behalf of a union, where all employees involved are on nonworking time, in any portion of the Respondent's premises, except that such solicitation may be prohibited in selling space, aisles, corridors, elevators, escalators, stairways, and in such other areas as are reasonably closed to discussion or to the employees involved, and that such solicitation may be reason- ably regulated in restaurants, waiting rooms, and rest rooms. (d) Rescind immediately its directions to its special service depart- ment to eject, exclude under threat of arrest, and arrest nonemployee union organizers when they appear in those areas of the Respondent's store in which they may lawfully solicit employees for union member- ship. (e) Post at its store in Chicago, Illinois, copies of notice attached hereto and marked "Appendix A." 40 Copies of said notice, to be fur- 40 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." MARSHALL FIELD & COMPANY 107 nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees customarily are posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order what steps Respondent has taken to comply herewith. CFIAIRMAN HERZOG, dissenting in part only : I join in most of the Board's opinion in this case. But I think that my colleagues have not gone far enough in reversing the Trial Examin- ers erroneous holding that the Respondent violated the Act by pro- hibiting solicitation in the so-called nonselling public areas of the store. I would hold that prohibition lawful, except as applied to the outdoor private street. I would draw no distinction between the aisles, corridors, and ele- vators on the one hand, and the public waiting and rest rooms on the other. It seems to me that in all these areas, and indeed in all sections of the store dedicated to the use and passage of the public-whether characterized as selling or nonselling-the Employer and its customers are entitled to be spared the disruption of their normal affairs which is bound to flow from any active union solicitation campaign. As a practical matter, all sections of a department store that are open to the public are inextricably interwoven with those which can be more literally termed "selling space." Sometimes these other sections are physically contiguous to the counters where the sales transactions take place, sometimes they are not. Either way, such areas contribute to the desired relationship between retailer and customer, whether facilities are provided out of necessity, or for the customer's conven- ience, or merely to generate good will. They should not be converted into an arena for the organization of employees. The statute does not command that result, and this Board should not facilitate it. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL permit nonemployee union organizers to solicit our employees on behalf of RETAIL CLERKS INTERNATIONAL ASSOCIA- 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TION, LOCAL No. 1515-M. F., AFL, or any other labor organization, on employees' own time and in public areas other than selling space, aisles, corridors, elevators, escalators, and stairways, and we will permit such solicitation, under reasonable regulations, in our public restaurants, rest rooms, and waiting rooms. WE WILL permit employee organizers to solicit our employees on behalf of RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1515-M. F., AFL, or any other labor organization, when all em- ployees involved are on nonworking time, except in selling space, aisles; corridors, elevators, escalators, and stairways, and in such other areas as are closed to discussion or to the employees involved, and we will permit such solicitation under reasonable regulations in restaurants, waiting rooms, and rest rooms. WE WILL permit nonemployee union organizers in reasonable numbers during the business day, to solicit our employees for membership in RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1515-M. F., AFL, or any other labor organization, in employee restaurants and cafeterias. WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies or promise benefits in con- nection therewith, or seize authorization cards. WE WILL NOT prevent nonemployee union organizers by ejec- tion, threat of arrest, or arrest, from entering those areas of this store in which such organizers may lawfully solicit employees for union membership on behalf of RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1515-M. F., AFL., or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1515-M. F., AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (00) of the Act. MARSHALL FIELD R COMPANY, Employer. Dated ----------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MARSHALL FIELD & COMPANY 109 Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by Retail Clerks International Association Local No. 1515-M. F., A. F. L., herein called the Union, and served on June 29, 1950, the General Counsel of the National Labor Relations Board; by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued a complaint dated January 29, 1951, against Marshall Field & Company, herein called the Respond- ent; alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served by General Counsel on all other parties. With respect to unfair labor practices, the complaint, as amended at the hear- ing, alleged in substance that the Respondent violated Section 8 (a) (1) of the Act by interrogation, threats, and promises to employees ; denial to organ- izers of access to selling and nonselling areas of the Respondent's Chicago store ; threats, assault, imprisonment, and abuse of organizers ; prevention of employees from signing union-membership cards ; exclusion of employee organ- izers from nonselling areas and on their own time ; and promulgation and en- forcement of a rule forbidding all solicitation in the store by nonemployee organizers. In its answer, as amended at the hearing, the Respondent admitted certain of the acts alleged but denied commission of any unfair labor practice ; alleged that it has not prohibited employee organizers from off-duty solicitation in noncustomer areas ; and further admitted promulgation and enforcement of the rule forbidding all solicitation in the store by nonemployee organizers. Pursuant to notice, a hearing was held at Chicago, Illinois, from February 20 to 28, 1950, inclusive, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by counsel, partici- pated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion of General Counsel's case-in-chief, the Respondent moved to dismiss the complaint in its entirety on the ground that there was no evidence of violation ; and in the alternative, the paragraphs which allege interrogation, threats, and promises ; and in the further alternative, the other paragraphs of the complaint. These motions were denied. They were renewed at the close of the hearing, and decision was at that time reserved ; they are now disposed of in accordance with the conclusions and recommendations below. General Counsel's motion, at the conclusion of the hearing to conform the pleadings to the proof with respect to such matters as names, dates, and punctuation was granted without objection. All parties waived oral argument at the close of the hearing ; all have filed briefs. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation with its principal office and place of business in Chicago, Illinois, operates a retail department store and several I The General Counsel and his representative at the hearing are herein referred to as the General Counsel, and the National Labor Relations Board as the Board. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouses in conjunction therewith in Chicago. It also conducts various manufacturing operations at Leaksville and Draper, North Carolina, at several other points in the States of North Carolina and Virginia, and at Zion, Illinois. In addition, the Respondent operates retail department stores in Evanston, Oak Park, and Lake Forest, Illinois, and in Seattle and Bellevue, Washington. It also maintains offices and display rooms in New York, New York. About and between the middle of 1949 and the middle of 1950, the Respondent, in the course of said enterprises, used in its manufacturing operations raw materials valued at more than $10,000,000, over 85 percent of which was trans- ported across State lines. Products manufactured by the Respondent exceed $15,000,000 in value annually, and over 80 percent thereof is shipped from the various plants above described across State lines. Merchandise purchased by the Respondent for use and resale at its Chicago, Illinois, store, is valued at more than $30,000,000 annually, and approximately 80 peorcent thereof is transported to the Chicago, Illinois, store, from points outside the State of Illinois. Annual sales of the Chicago, Illinois, store exceed $40,000,000, of which more than 12 percent is sold and transported to points outside the State of Illinois. The Respondent advertises its products in news- papers, magazines, by radio, and by mail, and annually spends more than $2,000,000 for this purpose. The Board has previously assumed jurisdiction over the Respondent in a proceeding involving the Chicago store.' It is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED It was agreed at the hearing and it is found that Retail Clerks International Association, Local No. 1515-M. F., A. F. L., is a labor organization and admits to membership employees of the Respondent's Chicago store. III. THE UNFAIR LABOR PRACTICES References hereinafter made to the evidence, not ascribed to named witnesses, represent uncontradicted testimony, or findings where conflicts have been re- solved ; findings are made herein on the basis of reliable, probative, and sub- stantial evidence on the record considered as a whole and the preponderance of the evidence taken. A. Exclusion from the selling floors Early in the summer of 1949, the Union started an organizing campaign among the Respondent's salespeople and certain merchandise handlers in the Chicago store. The Respondent by rule, which was stated several times at the hearing, prohibits solicitation e by nonemployees anywhere in the store, whether in sell- ing or nonselling areas.4 a Marshall Field & Company, 34 NLRB 1; Marshall Field & Company, 93 NLRB 182. Its booklet, "You And Your Job," distributed to all employees, includes the following with respect to pertinent employee activities: A first violation of the following rules will result in warning Repeated violations will result in discharge O (k) Solicitation on Company time for or against membership in any associa- tion, lodge, labor organization, or other groups of whatever nature. MARSHALL FIELD S; COMPANY 111 In connection with the question of access, and to warrant extension of the rule limiting organizational activities in department stores, Josephine Clark, an organizer for the Union, was permitted to testify as an expert concerning the difficulties faced in organizing a large department store. Such factors 5 as the very size of the store, its location on busy streets, the number of entrances and exits and the intermingling of employees and customers, the various hours of employment, and the element of competition as it affects employees' com- pensation, pose problems for organizers. But while, as the Union's counsel declared, "The department store situation is unique, Marshall Field . . . has the problem of all department stores" ; and the Board has decided that union organizers may be kept off department store selling floors when "they appear upon the premises in performance of their duties as representatives." ° In connection with its rules against solicitation, no intent by the Respondent to interfere with its employees' rights was established beyond such intent as may have inhered in the fact of interference as specifically found herein; it does not appear that the Respondent was otherwise motivated by unlawful intent in issuance of such rules. It is found that the Respondent' s rules against solici- tation do not violate the Act to the extent that they are applicable to activities on the selling floors.' B. The exclusions affected from public areas It is clear from the record that the Union's organizers did at various times violate the rule against solicitation on selling floors, and that the Respondent knew of these violations. Organization is lawful activity, but violation of a valid limitation as a means of organization is not. If the organizers' presence and activities were unlawful, the Respondent had a prima facie right to attempt to terminate and restrain them. Of course, the physical layout of a store may make it necessary to appear on a selling floor while making one's way to a nonselling area. But it appears from the testimony of both Clark and William F. Lennon, another organizer for the Union, that their presence on selling floors was not necessary and merely inci- dental to arrival in nonselling areas. They were Boanerges : they admitted that they handed out union cards, made appointments for lunch, and spoke with employees "if they seemed to have time" on the selling floors on some occasions, and on others that they would "walk through the entire store and say, `Hello,' to everyone [they] knew." (The other organizers admitted that they too solicited both on and off the selling floors or in areas closed to the public.) The explanation that the mere presence of and greeting by an organizer "sup- plies morale," and the testimony that for a month prior to her arrest Miss Clark "was solicitous to be seen . . . and to exchange the greetings of the day" with members of the Union on the selling floors make clear the purpose of such activities; but they do not justify them. Daily greetings by organizers on the Footnote 3-Continued (1) Solicitation on Company time of contributions to any cause or for any purpose without first obtaining the permission of the personnel manager. (m) Discussion of any subject on Company time in such manner as to interfere with the work of any employe. (o) Entertainment of friends or guests other than employes in facilities pro- vided for the use of employes only. 4 Exception is made for the Red Cross, Community Chest, American Legion, Y. M. C. A. and Y. W C. A , and Polio and Heart drives, which are conducted in booths 5 Acceptance of some of these factors as determinative would broaden the rule of access to include many businesses in many localities . See subsection D, infra. e Meier & Frank Company, Inc, 89 NLRB 1016. ° Whether restaurants are selling floors, as the Respondent maintains, is hereinafter considered. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selling floors are "likely to be disruptive of the employer's business " 8 We can recognize the motive and the advantage for organizational purposes . But as, much can be said for any organizational activity on the selling floor. In barring such activity, the Board has distinguished between purity of motive on the one hand, and the nature of the activity and its effect on the business on the other. Furthermore, any reluctance to interfere with organizing efforts is here tem- pered by the fact that these morale-building expeditions were partially pointed to employees whose support had already been enlisted and who could most readily be communicated with elsewhere The organizers' presence and ac- tivity in customer facilities must be weighed against the background of ac- tivities on the selling floors and as part of the expressed purpose to continue such selling-floor activities. Against that background and in view of such purpose, it cannot be said that the Respondent acted unlawfully in excluding them from the store. To protect itself against these organizers' violation of its rule to the extent that it lawfully barred solicitation on the selling floors, the Respondent was within its rights in barring such organizers from the store That the Respondent did not advise the organizers where it would permit them to function does not save them from the consequences of the activity which it could prohibit. Disruptive acts may be forbidden ; they are no less such because the rule is too broad in scope. In fact, the Board, in the Meter & Frank case,' upheld, as limited, a rule which was too broad. On the basis of the testimony, which is conflicting, and the demeanor of the respective witnesses, it is found that the Respondent did not use unnecessary or improper force or other methods in connection with removal of the organizers. It is further found that interference with solicitation by organizers who carried on their activities in an unauthorized and improper manner " was not unlawful, even when such interference took the form of seizing blank or partially executed authorization cards or of exclusion from employee " cafeterias, to which guests may sometimes have been taken," or from any other portion of the Respondent's premises from which, but for the improper activities, such organizers might not lawfully be barred.13 Clark was warned of arrest" if she returned to the stores, twice` she re- turned and was arrested. The arrests and subsequent imprisonment" were 8Meier & Frank, Inc, supra 9 Ibid. See also May Department Stores Company , 59 NLRB 976 11 William Newhall, another organizer, testified that Lloyd H Richmond. the manager of retail employee relations, in ordering him off the selling floor, had stated as his reasons that Newhall was working for the Union and no soliciting was permitted Richmond testified that he mentioned the latter reason, not the former It is understandable that an organizer would equate his own activities with solicitation generally, but it is unlikely that Rich- mond said that he was barring Newhall because the latter was woiking for the Union 11 That Clark realized that she was not properly there is indicated in her testimony that she and another organizer "got up and . . . left" when a special service employee came into the subway cafeteria on an occasion in May 1950. 12 Under the circumstances, it is unnecessary to determine whether guests were in fact permitted in employee cafeterias or whether the organizers were guests See also sub- section D, info a. 13 Cf. May Department Stores Company, 70 NLRB 94. 14 See Newport News Children's Dress Co., Inc., 91 NLRB 1521 , Cathey Lumber Com- pany, 86 NLRB 157 These cases are cited on the issue of authority to arrest where an organizer may properly be excluded ; the right to exclude under the circumstances herein has previously been noted. 11On the first occasion, Newhall was also arrested It appears that lie was given the option "to leave peacefully" rather than "to come peacefully," but that he replied that he was "going the way Miss Clark goes." 16 Other altercations and restraints fall into Clark's pattern MARSHALL FIELD & COMPANY 113 not aggravations of unfair labor practices previously committed. They are thus distinguishable from those cases in which the Board has found recourse to the courts to be an unfair labor practice" Whether they were proper steps under the State laws and municipal regulations can be determined in the civil and criminal courts.18 For present purposes , it is sufficient to note that if they were improperly taken, a finding of innocent, if improvident, error, is as compatible with the evidence adduced as one of intent to interfere. Beyond such acts as themselves would constitute unlawful interference, ascription of unlawful intent to interfere would here likewise be without sufficient foundation. C. The rule against organizational activity to public areas other than selling floors The Respondent's invitation to the public, noted on the record, is to enter the store, shop, and buy. It recognizes the need, in harmony with that purpose and the development of good will, to provide facilities for the public which may not directly contribute to sales, but which nevertheless are necessary's No grant of special privilege for union organizers 20 is therefore necessary when it is suggested that they may use public facilities. as do other members of the public. Union organizers have been known to patronize department stores; others of the public, conversely, have been known to use courtesy facilities so-called, without at the same time shopping or making a purchase. Having exercised its property rights to make facilities available to the public, the Respondent may not interfere with its employees' oganizational activities by unreasonably denying to union organizers access to such facilities. Recognizing this principle, the Respondent does not exclude union organizers as such ; it does, however, exclude them when they attempt to organize anywhere in the store. If a restaurant patron may discuss with an employee the problems, and they are many, which confront the Chicago baseball teams, there is no reasonable basis for excluding a discussion of union membership between a union organizer and an employee. In fact, the Respondent does not appear to prohibit any other member of the public from discussing union membership with an employee off duty and off the selling floors, whether the Union be one which figures prominently in the national news of the moment or Local 1515. True, discussion of union membership in connection with solicitation efforts may become acrimonious or otherwise disturbing. But so can discussion of the parlous (in this year of grace) state of the local ball teams. The problem is thus one of technique, of manner and method, even of personality. Solicitation in restaurants, for example, can be inconspicuous not only to the Respondent but also to patrons (if not to the employees themselves), and seem- ingly incidental to the organizers' apparent role as patrons z1 of the restaurant. "Cf. W. T Ca) tei and Bi other, 90 NLRB 2020, cited by General Counsel. 18 The evidence adduced does not indicate that the delay in filing the complaint and affecting Clark's release was attributable to Loren E Edwards, manager of the special service department Nor are we here to hold the Respondent liable for the fact that the disorderly conduct statute includes reference to lewdness 19The record shows, and official notice may be taken, that the store welcomes members of the public who come in without intention to buy. There is no suggestion of any attempt or intent to exclude those who may use the store as a meeting place or to visit employees while the latter are off duty. 20 Unless otherwise indicated, reference in this subsection is to union organizers who are- not employees. u It should be recognized that, although, as hereinafter noted, it is not a selling floor, space in a restaurant is provided for those who patronize it At least some of the organizational activities in the restaurants took place when the organizers were not eating at all 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A department store may limit organizers in public areas to the same extent that it may limit solicitation generally, and for the reason that such activities interfere both with the public as it attempts to engage in business with the store, and with the latter in the pursuit of its business. If union organizers must be especially circumspect because their activities may arouse an emotional reaction out of harmony with the general environment,22 they are nevertheless not to be denied an opportunity to proceed with due consideration of the issue, the environment, and the reasonable possibilities 23 The distinction herein noted between selling floors and other areas open to the public is further supported by the Board's reference in the Meier & Frank case 24 to "appear [ance] upon the premises" while it barred activity on the selling floors only. The Respondent's rule, however, as promulgated and enforced, denies to non- employee 25 union organizers the right to solicit employees on behalf of a union on the employees' own time and in public areas other than selling floors. True, it was testified that the Respondent would not limit an organizer who had not been barred from the store and who met an employee by appointment and did not "move from that table to another." But this would be a situation, as stated, not within the Respondent's knowledge in any event. The exception, moreover, is too narrow : It would not permit discussion without appointment, which is not denied to others, or discussion with several employees seriatim, also other- wise permitted. (The rule is in sharp contrast to the position which the Respondent assumed on the occasions when it actually required organizers to cease their activities : in each such case it pointed to improper activities on the selling floor or in "Em- ployees Only" areas, and its exculpation, as noted herein, is based thereon.) The reasons for prohibiting solicitation on selling floors are not applicable to nonselling areas,26 and themselves constitute the basis for distinction between the two. Where, as in the Goldblatt case,27 employees of a restaurant are eligible for membership and have been solicited , the distinction evaporates and the area is in effect considered as a selling floor ; the Board so held in that case. But such is not the situation here, and in the absence of the reasons which sup- ported that conclusion, there is no basis for a similar finding here. - While a restaurant may in a sense be considered a selling area, that sense is limited in- deed. Contact between patrons and restaurant employees is relatively slight and is hardly, if at all, interfered with by discussion among the patrons whether they be employees or nonemployees; and there is here no corresponding reason for barring solicitation outside of employees' working time. Whereas employees would not be permitted to congregate and talk on selling floors on off-duty time, they are welcomed in the restaurant. 22 This is not to say that an organizer is chargeable to a greater degree than anyone else for an unreasonable reaction or outburst. 22 Further definition is not feasible inasmuch as such factors as the technique of organ- izers or, more generally , the personalities involved in any discussion , the background of events , both historical and current , and the immediate objectives sought, imposed on the atmosphere created by management and its patrons , are necessarily indeterminate. 24 Supra. 25 Employee organizers and the area limitation imposed upon them are considered in the second following subsection 2e For the reasons set forth , this phrase is employed to refer to public areas other than selling floors or selling space, such as aisles and corridors not immediately adjacent to selling floors, restaurants, elevators, escalators , stairways , waiting rooms, rest rooms, and a private street which is open for access to the store. 27 GKoldblatt Bros , Inc., 77 NLRB 1262. MARSHALL FIELD & COMPANY 115 Reference to solicitation for signatures on nominating petitions, for an em- ployee 28 described as a perpetual seeker of public office, may be noted in this connection. If an employee may solicit signatures for such petitions in public areas on employees' own time, there is no basis for refusing to permit other em- ployees to solicit signatures for petitions which interest them. Nor, when they are on their own time and in public areas, are employees under such circum- stances different from members of the public generally. But in the instances cited solicitation was in nonpublic areas, and the question is therefore part of that of general exclusion from such areas, hereinafter considered. Aside from the cases of organizers who had previously solicited on selling floors, the rule against solicitation in public areas was enforced earlier as in the case when Lennon was told in the summer of 1949 to leave a public corridor leading to the men's store. No unfair labor practice can be found in this con- nection because the incident falls outside the period proscribed by Section 10 (b) of the Act. But the existence of the rules as declared by the Respondent, and reference thereto made to an organizer, as it was again made in inclusive terms in May and June 1950 to him and to Clark, who evidently was directing the organization campaign, might without more be deemed to constitute clear and continuing notice of denial of access to public nonselling areas for the purpose of solicitation ; and such notice, given to the Union's representatives, might further be deemed to constitute actual denial of access within the pleadings as originally drawn. But any question in this respect was removed when the issue was directly presented by amendment of the complaint to allege that promulgation of the rule was an unfair labor practice.2° In short, to complement 30 the Board's construction of "the application of a no-solicitation rule to cover all types of union solicitation on the selling floor of a store, regardless of whether or not such solicitation takes place during non- working hours," 31 it is reasonable to conclude that solicitation as such during nonworking hours is permissible in the manner hereinabove 'indicated in nonselling areas of a store which are open to the public 9R It is found that the Respondent's rule and its enforcement have unlawfully interfered with the rights of employees to organize. D. Exclusion from areas closed to the public The identification hereinabove made, between nonemployee union organizers and members of the public generally, precludes distinction between them with respect to access to areas set aside for employees only. Concerning working facilities such as workrooms and stockrooms, there can be no reasonable dispute. As for the library, there appears to be valid reason for prohibiting discussion of 28 Where the solicitor was not identified, it would appear that he was that same employee ; there is no basis for finding that he was not an employee. 29 The finding in this connection is based on promulgation and enforcement of the rule. No finding is or need be made with respect to the "conclusionary" allegation of purpose to interfere. °° The question of solicitation off the selling floor appears to be one of first impression. Henry C Lytton & Company, 93 NLRB No 49 The questions raised in this and the second following subsection are important because of the general application of any rule in connection therewith There will, of course, remain problems concerning the application of any- rules • which are public areas , the extent of selling floors , the nature of permissible activity viewed in the light of the type of operation conducted, the point at which sanctioned conduct may become improper in regard to the nature of the business, etc. 31 Metier & Frank Company, Inc., footnote 6, supra. 32 Except for its attempt to extend the definition of selling floor beyond that herehiabove indicated, the Respondent agrees with so much of this conclusion as concerns employee organizers. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any kind, whether by employees or nonemployees. Nor is exclusion of all non- employees from cloak rooms and locker rooms unreasonable; presence of guards does not encourage or warrant a testing of their efficiency by invitation to non- employees. (See footnote 38.) The exclusion from nonpublic cafeterias" presents a more important, if not more difficult, problem since the opportunity for organizing, if permitted, would be far greater there, and exclusion therefore more seriously limits the general rights accorded by the Act. The Respondent, however, should not be required, in the absence of bad faith, to serve the public at the lower rates prevalent in the employee cafeterias or to increase such rates. Finally, it may be noted that some employees patronize the public cafeteria, where organizers should be per- mitted to function as indicated above. General Counsel submitted evidence to show that nonemployee guests have been taken to cafeterias designated for employees only. Whether this might have indicated discriminatory application of the Respondent's rules would de- pend on the frequency of such visits, the Respondent's knowledge thereof and action taken, if any, to prevent or terminate them, and similar factors. No findings need be made in this connection, however, since as stated above, it appears that each of the organizers excluded had violated a proper regulation against solicitation on the selling floors, and their exclusion was properly from the entire store; wt- can now confine ourselves to the general question of exclusion from cafeterias which are maintained for employees exclusively. There are here no such special circumstances as have been found to command limitation of the right to exclude union organizers along with other members of the general public.34 The instant case involves factors which are typical not only of this Respondent, but of large department stores generally ; in fact, to the extent that size of store, number of employees, busy location, various hours, and other factors were cited, the situation is typical of many plants in many businesses. The conclusion in Armour Fertilizer Wo,ks' is supported by the finding of unlawful intent and interference with employees' own activity on nonworking time. The issues in that case and the principle of the authorities there cited do not extend to a general finding that the type of restraint there imposed and in this subsection considered is per se violative of the Act in the absence of unlawful intent. It is found that the Respondent acted within its rights in excluding nonem- ployee union organizers from the selling floors and from areas closed to the public. H. Employee organizers and solecitees on working time The Respondent declared that it "probably wouldn't do anything about" union solicitation by employees "in employee areas" when both solicitor and solicitee are on their own time. While the time restriction is valid," the permissible area should, for the reasons hereinabove set forth, include all portions of the premises 33 While Clark testified that she did not see signs excluding the public from the twelfth floor and subway cafeterias , the references to "guests " being taken there and Clark's testi- mony that she undertook to become acquainted with the stole 's physical setup make it clear that all concerned were aware of the limitation . Edwards testified to the location of signs wherever the public is "not invited " See also footnote 11, supra - 31 Cf. N. L. R B. v. LeTourneau Company of Georgia, 324 U. S. 793, N. L. R B v. Stowe Spinntnq Company, 336 U. S 226; N. L. R B. v Cities Service 04 Company , 122 F. 2d 149 (C. A. 2) ; N L R B. v Weyerhaeuser Timber Company , 132 F. 2d 234 (C. A. 9). 35 69 NLRB I 30 Peyton Packing Company, Inc, 49 NLRB 828 MARSHALL FIELD & COMPANY 117 except the selling floors and such other areas as are reasonably closed to dis- cussion aT or to the employees involved." Allen D. Schwartz, a gvondain Saturday employee, had not been employed at the store for 7 weeks when he undertook to organize on February 3, 1951. Vali- dation of his discount card is evidence that he was an employee in at least a re- stricted sense ; his relation to the Respondent would certainly not meet the purpose for distinguishing between employees and others in connection with access to restricted areas. But it is unnecessary to determine whether he was properly in an area reserved for employees. He was admittedly in the store on his own time "talking about the Union," he had engaged in discussion of the Union with several employees on the selling floor just before, and he was speak- ing with a stockboy who was standing at the dumbwaiter. The circumstances of the latter conversation suggest that the stockboy was on working time. A presumption to that effect may be indulged in generally with respect to employees during working hours and when they are at normal employment stations. It is concluded that Schwartz was lawfully excluded from the store 39 F. Interrogation Dale Milnes, an employee in the traffic department, solicited on behalf of the Union on his own and on company time. The manager of the depart- ment, Earl F. Cosby, called him into conference on August 23, 1950. Immediately thereafter, Cosby prepared an "Incident Report," which Milnes signed the following day. While agreeing generally concerning the matters discussed, Milnes and Cosby differed on several material points. The former maintained that Cosby inquired about his solicitation on both his own and company time, while the latter insisted that he had asked with respect to company time activities only. While it is quite possible that Milnes may have overlooked the omission of reference to his own time in the report, the undersigned bases on such omission a finding that Cosby's version was.correct, and that Milnes in this connection was thinking of his later statement to Cosby that he would continue to organize on his own time but would refrain from doing so on working time. This finding is supported somewhat by the fact that Cosby's warning was admittedly directed toward company time solicitation. Both witnesses appeared to be truthful, but Cosby was at several points uncer- tain and not as clear in his recollection as Milnes, who impressed the undersigned as meticulous and thoroughly reliable except in the instance noted immediately above. The undersigned finds that Cosby, when he admittedly expressed surprise that Milnes was engaged in union activity, did tell Milnes that he couldn't understand why he was engaging in such activities, asked why he hadn't started earlier, and during the conversation referred to the possibility of Milnes becoming a supervisor. (Any absence of bias which may be spelled out of a subsequent promotion does not lessen the interference at the time of the reference under the circumstances of the conversation.) These statements do not contradict the report; they supplement it. It did not purport to include all of the details of a lengthy discussion, nor did Cosby urge that it did. Such areas as libraries sa Such areas as stockrooms or cashier's cages, to which access is limited. The argument that the presence of guards in such places represents an invitation or right to enter without authorization is curious indeed it may as well be argued that the absence of guards else- where warrants exclusion. Nor is there need to test the guards : their function is otherwise proven 89 The activities of Milnes, another employee, are noted in the next subsection. 998666-vol. 98-53-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nancy N. Sennett, employed by the Respondent until a short time before the hearing, testified that one afternoon in July 1950 a special service employee whom she could not further identify told her that he knew she had been stopped by a union representative that morning, and asked her whether she had signed a union card. The indefiniteness 40 of Sennett's identification, which left the Respondent little opportunity to meet her testimony , and her general uncertainty on the witness stand, in the face of the instructions given to members of the special service staff that if they observed an organizer speaking to an employee, they were to ask whether he had been solicited for the Union but not whether he had signed a union card , will not allow a finding of unlawful interrogation in this connection. It is found that, by interrogation and promise of benefit , Cosby interfered with union activities in violation of Section 8 (a) (1) of the Act. G. Trailing outside the store It was testified without contradiction that in June, Clark was ordered out of the store and then was followed by a special service employee as she circled it and reentered through another door. This matter can here be disposed of by noting that it is without the issues framed by the pleading Nor was it "fully litigated." 41 But if such objection be waived in the interest of obtaining greater definition of the rights of the respective parties, a determination can be made on the merits of the question. Where an organizer has, as in this situation, declared that he would return and has in fact repeatedly returned after being properly ordered off the premises, it is not unreasonable or unlawful to follow him off and in the immediate vicinity to see whether he will at once return . ( There is nothing in the record to indicate any other motive connected with the incident.) Under such circumstances, the suspicion that he will return is reasonable , and the correctness of that suspicionl was indicated by the fact that he did return.42 No violation is found in connection with trailing outside the store. IV. THE EFFECT OF THE UNFAIR LABOR PR ACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above , occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce , it will be recommended that it cease and desist therefrom and take certain affirmative action in order to effectu- ate the policies of the Act. It has been found that by prohibiting noneniployee union organizers from soliciting employees on the latter 's own time and in public areas , without limita- tion of such areas to the selling floors ; by limiting the activities of employee 40 Cf Heider Manufacturing Company, 91 NLRB 1185 . footnote 10. 41 Fulton Bag and Cotton Mills, 75 NLRB 8S3 , Stai sett Bi others and ELen, Inco; porated, 92 NLRB 1757. 42 Reference to the subsequent event is not made to prove that the suspicion had existed. The later occurrence does, however, indicate that the suspicion , and therefore the Re- spondent's motive, was neither incredible nor unreasonable. LEADER NEWS CO., INC.. 119 organizers to "employee, areas" and prohibiting such activities when all em- ployees involved are on nonworking time, not only on the selling floors and in such other areas as are reasonably closed to discussion or to the employees in- volved but in all other portions of the premises ; and by interrogation concerning and promise of benefit in connection with union activities, the Respondent inter- fered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. Beyond the rules against solicitation which the Respondent is testing and are here found to be violative of the Act, there is no evidence of frequent or system- atic interference or of such intent as would warrant reasonable apprehension of danger that it will commit unfair labor practices different from or not related to those found herein. It will therefore be recommended that the order herein be coextensive with the unfair labor practices actually committed by the Re- spondent, and be limited to any like or related conduct. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONcrtsIONS OF LAW 1. Retail Clerks International Association , Local No. 1515-M. F., A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By promulgating and enforcing a rule prohibiting nonemployee union organ- izers from soliciting employees on behalf of a union on the employees' own time and in public areas, without limitation of such areas to the selling floors ; by promulgating and enforcing a rule prohibiting employee organizers from solicit- ing for a union on nonworking time in any portion of the Respondent 's premises other than "employee areas" ; and by interrogation concerning an employee's union affiliation , activities, and sympathies , and promise of benefit in connection therewith, thereby interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act , the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and ( 7) of the Act. [Recommendations omitted from publication in this volume.] LEADER NEWS CO., INC. and OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL 153, AFL. Case No. 2-CA-1609. February 15, 1952 Decision and Order On August 7, 1951, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied because 98 NLRB No. 22.