The Falk Corp.

716 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD The Falk Corporation andDistrict No. 10, Internation- al Association -of Machinists and Aerospace Work- ers, AFL-CIO.-Case 30-CA-1226. August 18, 1971 DECISION AND- ORDER - On October 28, 1970, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Deci- sion with supporting briefs, and the Respondent filed cross-exceptions and an answering brief. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER BROWN, dissenting: I would find that Respondent violated Section 8(a)(1) of the Act by refusing nonemployee union organizers access to its property to distribute litera- ture. As I stated in my dissent in Monogram Models, 192 NLRB No. 99, I do not read the Babcock & Wilcox' decision to require more than reasonable efforts on the part of a union to communicate with employees. The majority and the Trial Examiner, by requiring the Union to record automobile license numbers and compare them to a state-supplied listing of licensed vehicle owners and addresses in order to initiate a dialogue with the employees, are clearly demanding the Union make more than "reasonable efforts." 1 N.L R.B. v. Babcock & Wilcox, 351 U.S. 105. TRIAL EXAMINER'S DECISION - STATEMENT OF THE CASE GEORGE J. BoTr, Trial, Exa.miner:,_Upon ;a charge of unfair labor practices filedby District No. 10, International Association of Machinists and Aerospace.;; Workers, AFL-CIO, herein called the Union, on April ,1, 1970, against the Falk Corporation, herein called Respondent or Employer, the General Counsel of the National Labor Relations Board issued an amended complaint on July 17, 1970, alleging that Respondent had violated Section 8(a)(1) of the National Labor Relations Act, herein called the Act, by refusing to grant access to nonemployee union organizers to distribute union literature to Respondent's employees on Respondent's Canal Street property. Respon- dent filed an answer admitting that it had refused access to nonemployee organizers as alleged, but denying the commission of any unfair labor practices. A hearing was held before me in Milwaukee, Wisconsin, on August 18 and 19, 1970, at which all parties were represented. Subsequent to the hearing, General Counsel and Respondent filed briefs which have been carefully considered. On the basis of the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT L RESPONDENT'S BUSINESS Respondent is a Wisconsin corporation with offices and plant facilities at Canal Street, Milwaukee, Wisconsin, where it is engaged in the manufacture of mechanical power transmission equipment. During the year prior to the issuance of the complaint, Respondent sold and shipped, in interstate commerce, products valued in excess of $50,000 to customers located outside the State of Wisconsin. Respondent is an "employer" as defined in Section 2(2) of the Act, engaged in commerce as defined in Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The setting Although Respondent's somewhat wedge shaped Panal Street complex is located in the City of Milwaukee, a knowledgeable witness employed by the City noted that it is situated "in a cul-de-sac," and General Counsel accuirately likens it to an island, as far as accessibility is con ed. The complex stretches from the 27th Street viaduct est to a line between 32nd and 33rd Streets, which appear to be approximately one-third of a mile, and, from no to south, it appears to be the same distance at its widest point. Although, part of the surrounding area is residen' , the complex is bordered by natural or manmade obstructions, 192 NLRB No. 100 THE FALK CORPORATION 717 such as the Menomonee River on the south and east, the Milwaukee Road railroad complex on the west, and, on the north, by railroad tracks and an elevated freeway.' - 'At the' time ' of the hearing, there was a total of approximately 1630 hourly-rated production and mainte- nance employees; and an undisclosed number, of supervi- sors and office -employees, employed at the Canal Street plant. The plant is a three-shift operation with staggered shift starting times. There are approximately 1082 employ- ees on the first-shift,, 341 on-the seconds and 207 on the -third. First shift employees begin work from 6 to 6:45 a.m. and quit from 2:,30 to 3 p.m.; second shift employees begin from 2:42 to 3:30 p.m, and-leave from 10:42 to midnight. Third`-shift employees -go -to work between 10:42 and 11 p.m. and quit from 6:42 to -7 a.m. Executive, office' and professional- personnel commence work at 7:45 a.m. and later, and generally leave work from 3:30 to 4:15 p.m. None of Respondent's'-employees leave the- complex during breaks or lunch periods. Milwaukee is the twelfth largest city in the nation and has a population; of 709,493. The population of Milwaukee County is 1,046;268. The population of the four county metropolitan area (Milwaukee, Ozaukee, Washington and Waukesha CCounties) is-1,393,260. In excess of 90 percent of Respondent's production and maintenance employees reside in an area extending approximately 3 miles east, 7 miles west, 7 voiles north and 7 miles south of the Canal Street plant, and the remainder reside within a'30-mite radius.'' There are three means by which employees enter and leave the Canal Street complex as follows: . There is only one vehicular entrance, consisting of a 2- lane viaduct 22 feet wide extending from Canal Street over the Milwaukee Road railroad tracks into the complex. Canal. Street is north of Respondent's complex and runs east and west along the Milwaukee Road property. The entrance to the viaduct on Canal Street is approximately 1 /2 block east of 32nd Street which runs north and south. Respondent owns and -maintains the entire viaduct up to the point where it enters-Canal- Street. There is a pedestrian -' walkway, also owned and maintained by Respondent,' extending along the east edge of the viaduct. The' only sidewalk on Canal Street is on the north side of the street across from the walkway into the plant. There is no 'public sidewalk on the walkway side. All pedestrians utilize the public sidewalk before crossing Canal Street to'the'walkway- entrance. The -'third entrance to the plant,, also - owned and maintained by Respondent, commences at a -public sidewalk on the 27th Street viaduct and extends from a public bus $tapon the elevated viaduct, downward on to Responde'nt's property. - An average of approximately 76 percent of first, 75 percent of second, and 90 percent of third shift employees enter and leave work each day by automobile over the privately-owned viaduct extending from Canal Street. There are only two vehicular approaches to the viaduct from the surrounding area, 32nd Street, a half block east of the viaduct, running north and south and ending at Canal I Most of the following findings are based upon a written stipulation of the parties and where they are not, I have tried to indicate the testimonial Street, and the eastern portion of Canal Street, which runs approximately 6-1/2 blocks east of the Falk viaduct where it intersects with Greves Street and eventually 25th Street at West St. Paul Street. The vast majority of Respondent's employees utilizing automobile transportation enter and leave the complex.-.area via 32nd Street. A, traffic count made on the afternoon of August 14, 1970, between 2 and 3:30 p.m. revealed that of thenumber of autos exiting-from the viaduct, 25 percent turned east and 75 percent, turned west toward 32nd Street. On an average day, approximately 15 percent of first, 13 percent of second, and 10 percent of third shift employees leave the complex via. the pedestrian walkway and the 27th Street viaduct stairway, and employees exit from public buses at the bus stop, and cross a public sidewalk before entering the stairway. It also appears that Respondent leases a bus to transport employees to and from certain locations in the complex and nearby points in the surrounding residential, area. On an average day, approximately 9 percent of the first, shift and 12 percent of second shift employees use this, method of transportation. Immediately to the west of Respondent's plant complex is an office and maintenance complex -owned by the Milwaukee Road railroad. The Milwaukee Road employs approximately 1030 employees at its Canal Street complex, with shift changes occurring as follows: 7 a.m. to 3 p.m. -(50 employees); 7:30 to 3.30,(745); 8 to 4 (125); 3 to.11, (50); 3:30 to 11 (10); and 11 p.m. to 7 a.m. (50). The employees enter and leave the Milwaukee Road complex by means of a viaduct intersecting Canal Street, located approximately 1 block west of the intersection of 32nd and Canal Street. The vast majority of Milwaukee Road employees use automo- biles to get to and from work via 32nd Street. In addition to, the -Milwaukee Road complex, it appears from the evidence that there are approximately a half-dozen smallmanufacturers along Greves-Street between 27th and 25th Street. Some of these employees use Canal, Street to reach their employers' places of-business. 2. The Union's organizational campaign and its efforts to communicate with Falk -employees In late 1968, Joseph Spehert, an organizer for the Union, made what -he described as an "informal' check" in his "spare' moments" of the number of employees entering the Falk complex by automobile. Spehert was not at the time involved in attempting to organize Respondent, and it appears from his testimony that his observation of the plant and the employees was merely a preliminary to a -later decision to make an organizing effort. As part of 'his "survey," Spehert conducted a license plate 'check. He visited the area of the plant on 8 to 10 different occasions over a month and a half period in the morning or afternoon, presumably 'at shiftchange time, and parked his carr, on the east side of 32nd Street, about 1/2 block north of the intersection with ' Canal ,Street, where' he proceeded to record on a tape recorder the licenseplate numbers of cars as they went by. Since his car was-pointed north, Spehert source. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used his rearview mirror in attempting to record , on north bound traffic, only, those cars coming around, ,the corner from the, east on Canal Street, presumably , from theFalk complex,,, He _ also, ,presumably, recorded the' license numbers of, all south bound traffic. Having obtained a list of license numbers, Spelled had them,alphabetized in order to determine car ownership. The State of, Wisconsin publishes a directory which lists the names and addresses of all automobile owners registered in the State, and from this directory Spehert discovered who,owned the automobiles he had observed on, 32nd' Street. Spehert's list contained the names of 593 persons, but he said that in checking the names ,against the Milwaukee City directory, he discovered that his list was inaccurate in that about half, the names were of persons not employed by Respondent. No effort had been made to update this list as of April 1970 when the Union made a'mailingto Falk employees. The, Union's organizational attempt seems to have; been launched on or about March 23, 1970, at approximately 5:45 a.m., when Spehert, accompanied by'six or, seven nonemployee assistants, attempted to hand union authori- zation cards to employees as they arrived for work. Two men were placed ,ow the 27th Street=viaduct, and the rest stationed themselves on the Falk viaduct, immediately to the south 'of where it joins Canal Street, to handbill employees entering the plant by auto or walking .on ,the Respondent's walkway on the' viaduct. Within a. few minutes; ' Respondent's security ^ guards , told the union agents they were on private property,,and ordered them to leave. Spehert doubted thathe and his men were onprivate property, and continued his, efforts toreach the employees, but, in a short while, City of Milwaukee policemen arrived and instructed them to leave because they were on private property. Spehert and his assistant left the viaduct area and stationed themselves elsewhere. Spehert placed one person at the northwest corner, of 32nd and Canal and another on the public sidewalk on the north side of Canal,just east of the point where the Falk viaductjoins Canal Street. Spehert himself and another assistant stood on the curb on the south side ,- of Canal Street, between the- 32nd Street intersection and the Falk viaduct. Although the Union had now covered all normal automobile approaches to the plant, Spehert, credibly !testified that since his, handbillers were unable, to successfully reach the drivers from where they were , stationed, he -,and others moved out into the middle of the street in order to go closer to them. However, policemen soon told the union, agents that they,, were violating traffic rules and would have to get out, of the street. Spehert and the others left the area between 6:15 and 6:30a.m. The Union made a second attempt to distribute literature on March 25, 1970. Spehert and four other employees of the Union stationed themselves on theviaduct at approximate- ly ;10:30 p.m. during the break between the second and third shifts, "but they were again ordered off Falk property by security guards., Spehert again-refused to comply, and Milwaukee police again arrived and convinced him that he should remove himself from Respondent's viaduct. It appears, however, that - a police officer, allowed -,union representatives to -distribute ,literature from each side of the Falk viaduct on- public property. This , was done by permitting the union representatives to stand at the points where the Falk asphalt joined the concrete of Canal Street, but in neither case were the representatives allowed,to stand in the flow of traffic,, according. to Spehert's undenied testimony, and, the Union again left the area with very little accomplished. After his unrewarding experiences on March 23 and 25, Spehert investigated the ownership ,of the Falk viaduct and found out that it was indeed owned by Respondent. He also visited Milwaukee District 3 police headquarters and was clearly told that,he and his men would not be permitted to distribute literature by standing "in the street.' He was also told, however, that he could stand on the public sidewalks and distribute literature. On March 30, the Union made its third and last attempt to distribute literature in the vicinity of the Canal Street viaduct. Spehert, assisted by eight or nine,other individuals, arrived at the plant complex at approximately 6:15-6:30 p.m. This time the union agents .did not attempt tostation themselves on any part of Respondent's viaduct, but tried to pass out handbills in the middle of Canal Street, until stopped by Milwaukee police. According to Spehert, and I credit his testimony, standing in, the middle of the highway was the only effective means by which the union representatives could hand literature to drivers of automo- biles. He said that before they left the area in approximately 45 minutes, he and his assistants had distributed about 200 notices of a union meeting.? In addition to the handbill advertising a union meeting, the union agents also had with them two 25-foot banners stating 'in, large yellow and,, red letters that the meeting would be conducted at Serb Hall on April 2. Ono of the banners was displayed from the public sidewalk on the north side of Canal Street, directly opposite from, the entrance to the Falk viaduct where it could be ,seen by Falk employees leaving, work.,-The other banner was displayed from the south side of Canal . Street, facing -north, at the intersection of Canal and- 32nd Street, so that it could be seen by employees who approach the plant down 32nd Street from, the north. Spehert testified without contradic- tion that shortly after the, banner on, the south side of Canal Street was unfurled, a Milwaukee Road agent told him-it was on Milwaukee Road property and would have to be removed. Spehert took the banner down, and he said that, frustrated and disgusted by the problems hewas encounter- ing, he decided to give up. He took both banners down and left the area. The Union conducted organizational -meetings-one in the morning and one in the afternoon-for Respondent's employees on, April 2, as had been announced in the March 30, banners and handbills. Approximately 50 employees attended the morning session and 150, came that afternoon. Spehert said that most , of those atending had, already signed authorization cards. On April 8, the Union mailed 700-800 introductory copies of the International Association of Machinists' 2 Several union agents were also stationed this morning on the 27th stairs leading, to the complex. As far as this, record is concerned, no Street viaduct to distribute leaflets to employees at both entrances to the difficulties were encountered there. THE FALK CORPORATION 719 newspaper to employees who had signed authorization cards, as well as to those whose names appeared on Spehert's list prepared in 1968 after his automobile survey, with-the exception of- those persons who were actually now known not to be employees of Respondent. As indicated earlier, the Union had made no effort to correct or update the list-sinceit was first prepared, and Spehert said he had no way ,of knowing what percentage of the April 8 mailing actually reached Falk employees. On the other hand, Spehert has used the list to make some home visits and telephone calls to employees on it. It also appears, however, that the Union has not used any kind of employee committee to distribute cards or literature in the plant, and communications with employees since April 8 seem to have been limited to isolated contacts with employees who happen to drop into the union office. On May 22, 1970, the Union wrote Respondent and, after describing some of the difficulties it had experienced in handbilling employees entering , and leaving the plant, requested that Respondent grant its organizers access to company property for distributional purposes. As an alternative to being granted access, the Union requested that Respondent furnish it with a list of names and addresses of its employees so that they could be contacted outside of the plant for organizational purposes. By letter dated June 1, Respondent, relying in part on "long standing Company policy concerning use of Falk property' and its assumption that the Union had numerous avenues of "communications with Falk employees" available to it, denied the Union's request. For several years Respondent has maintained and enforced a uniform, nondiscriminatory policy prohibiting nonemployees from entering any area of its property for the purpose of soliciting or distributing literature or printed matter in any form to, its employees . With respect to employees, Respondent maintains presumptively legal rules against solicitation during working time and distribution in working areas of the plant. It also appears that Respondent has made no response to,- its employees concerning the communications proffered to them by the Union during its organizational campaign as described above.3 B. Analysis, Additional Findings, and Conchesions In order to sustain the allegations of the complaint that Respondent interfered with, -restrained, and coerced its employees by refusing to grant access right to nonemployee union organizers to distribute union literature or to otherwise disseminate union information to Respondent's employees on Respondent's Canal Street property, General Counsel must establish that the Union is unable by reasonable efforts through other available channels of communication to reach the employees with its message 4 3 As- of April 1970, International Union, United Automobile, Aerospace a4c Agricultural workers of America (UAW), had been conductug, for approximately 2 years, organizational activities directed at Respondent's employees. The record contains numerous pieces of union literature sponsored by said organization and found in various areas of Respondent's plant. It is a fair inference that a UAW employee committee is responsible for transmitting these messages to employees in the plant. As with the Machinists Union, Respondent has made no response to its employees concerning these UAW communications during the 2 years that the campaign has been going on. If, as the Court said at another point in Babcock,& Wilcox, "the location of -a plant and the living quarters of the employees - place the employees beyond the reach of reasonable union efforts to communicate with them,, the employer must allow,the union to approach his employees on his property"5 I find on the basis of the whole record that it has not been shown by a preponderance of the evidence that, the Union cannot communicate with Respondent's employees effectively by the use of certain techniques and avenues, including a certain amount of advertising by placards or banners near the plant viaduct, which the record shows are available to the Union if it exercises "reasonable efforts" to utilize them. First of all, unlike the situations in certain cases relied upon by General Counsel, the Union in this case concededly is able to distribute literature to pedestrian employees who enter the plant via the walkway which runs along the Falk Canal Street viaduct from the public sidewalk extending along the north side of Canal' Street, and to those employees who^,use the stairway extending from the 27th Street viaduct by, standing at the public bus stop on the viaduct. I also find-that it is practical to distribute literature to employees, who are transported to and from work by the bus leased by Respondent by meeting them at the bus stops in the surrounding areas, and General Counsel concedes that there are no "insurmountable problems in distributing literature" to this group. Consequently, these two groups-those who use the pedestrian entrances and those who use the company bus--can be effectively reached, and - they together constitute almost 25 percent of Respondent's work force,6 In Babcock & Wilcox, 90 percent of the employees drove to work in automobiles. The only place in the plant area where leaflets could be distributedto employees was a long driveway where it crossed a highway. The Court agreed with the Board that it was "practically impossible" for union representatives to distribute leaflets safely to employees as they entered and left the plant. The Court also observed, however, that there were alternative methods of communication utilized by the- union, such as mailing literature to 100 out of 500 employees, verbal communica- tions on the streets of the city where the employees lived, home contacts, and home telephone calls. On the basis of these considerations, the Board had nevertheless concluded that "it was unreasonably difficult to reach the employees off company property." 7 The Court concluded on the basis of the same facts, however, that means of communication other than access to Respondent's property for distribution purposes were "readily available" and that, in the circumstances, the employer need not permit the use of his facilities for organizational purposes. Some of these "usual methods, of imparting information" which were available had, as indicated, been referred to by the Board, and the 4 N.L.RB. v. Babcock & Wilcox Company, 351 U.S. 105,112. eb Supra at 113. ® In Solo Cup Company, et at., 172 NLRB No. 110, reversed and remanded 422 F.2d 1149 (C.A. 7), 99 percent of the employer's employees entered the plant by automobile at a location where it was "virtually impossible to stand safely" and pass out literature. In Central Hardware Company, 181 NLRB No. 74, only a few of the company's employees walked to work. 7 Babcock & Wilcox supra at 106. ,720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court added to them the considerations that "various instruments of publicity are at hand" and the quarters of employees, although scattered, were in reasonable reach. I find and conclude that, in addition to being able to ,- effectively reach nondrivers and apart from any avenues available to the Union near the plant complex to carry its message to employees who use automobiles to get to and from work, alternative means of communication available to'' the Union are, essentially equal to those deemed adequate by the Courtin Babcock & Wilcox. They are: 1. Communication by mail In Babcock & Wilcox, the union was only , able to communicate by mail with , approximately 100 "out of 500 employees. In this case, as set out above, Spehert, the Union's business representative and organizer, did not attempt' to compile 'a comprehensive mailing list when he surveyed automobile traffic 'near Respondent's- plant in 1968,- and the list of addresses he did put together from a check of license plates has never been attempted to be brought up to date. ' Nevertheless, from that stale, incomplete, and probably inaccurate list, with the addition of persona who have actually signed union ' authorization cards, the Union has been able to mad 700400 pieces of union literature to persons it believes are Falk employees. Although Speherttestified that ha.had'no way of knowing whether the mailing was actually , received by Falk employees, it is a' fair inference, which I draw, that the Union is now reaching 'considerably ,more than a few hundred- Falk employees by'mail. But more important than this ability to reach by mail proportionately as many employees as the union in Babcock & Wilcox was able to contact, is the fact that the Union with a little more effort can compile a much more comprehensive list of names and addresses- of Falk employees who drive to work . I make this finding on - the basis of the credited and composite testimony ' of Ralph Brownlee, professor of marketing at Marquette University and expert in the field of marketing and advertising, and Robert Seaborn, Respondent's plant engineer, that a complete list of all license plates of all automobiles , entering and leaving the Falk complex via the Canal - Street viaduct can be easily recorded on a tape recorder by day or night by one or two persons standing on the public ' sidewalk directly across from the entrance to the viaduct; that the Motor Vehicle Department of the State of Wisconsin- maintains as a public record the name and address of each license owner; that plates are required on the front and back of each car; that said plates remain with the owner, not the car, in the event of transfer of title, and that the listings of names and addresses maintained by the State is kept up , to date with regular supplements and is available for purchase by the public. It also appears that the Union has utilized this service in the past for organizational purposes. It will be recalled that Spehert did not station himself in front of the viaduct, as suggested by Respon- 8 By appeals to persons who have signed cards to supply the name and address of another'employee, for example. 9 172 NLRB ,No. 110. 10 In Central Hardware Company, 181 NLRB No. 74, the Board, in affirming the Trial Examiner who relied in part on the difficulty the union encountered in trying to reach employees at home in Indianapolis. Indiana, dent's witnesses, but sat in. his car on 32nd Street. This undoubtedly explains why 'half of the names on his, original list were of persons who did hot work for Respondent,- for Milwaukee Road employees also'us'32nd Street to get, to and from work, at or around the time Spehert was making his license plate check. - General Counsel argues that any list of license plates and names and addresses developed therefrom as described, would , be incomplete and inaccurate 'because some employees ride in car pools, because `statistics show that persons change their addresses about once every 5 years, and because there is no way for an observer to tell a production and maintenance employee from a supervisor or office 'employee if he or she is driving a-car. It appears, however, that provisions,may be made for forwarding mail to persons who move, and it is also a fact that not only do no women work in production , and, maintenance, but the starting and quitting-times of ' office, ' executive and professional personnel do not coincide with production and maintenance employees. It may `be- that the' first list ,prepared,' or^ even subsequent lists, will contain the names of some nonunit employees, but there is no known reason why the union would not want a nonunit employee to $et its literature,, and the use of a city directory would help reduce this margin of error, for it lists .persons by occupation. As far as car pools are concerned , 30 percent of the employees drive alone, and it ' also well known-that car pool participants alternate. In any-4-se, if the driver gds the message, it is likely that the passenger will get it too This is not to say that the license ,plate survey method will result an a completely accurate list of names and addresses of all employees in the unit and of no one else. It is'to say that by this method, which I find not an r uneasonable burden, supplemented by various well -known' techniques for appealing for addresses,8 the Union can build a mailing list which Will be,fairly comprehensive. With this , li`s't and its opportunities for face-to-face contacts with pedestrian employees, it will have much more - than the unions had iii Babcock & Wilcox and in Solo Cup Company. 9 2. Visiting and telephoning employees at their homes, In Babcock,& Wilcox, only 40 percent of the employees lived in a nearby town and 60 percent lived within a 30-mile radius. In this case 90 percent of the employees live in residential- areas relatively close to the plant and the remainder live within a 30-mile radius. I find nothing in the cases to indicate that it is unreasonable to expect a union to attempt to reach employees at their homes merely because they live in a metropolitan area.in The Union's representa- tives have made some home visits, as well as some telephone calls, in this case, and it is to be expected that with an enlarged list of employee addresses they will be able to make more, if they choose.11 , in finding ;denial of access illegal, relied upon a variety of- considerations not present in, this case. I consider the case clearly distinguishable The Courtin Babcock & Wilcox, at p. 114, referred to home visits as "one of the usual methods of imparting information." 11 In Solo Cap, where most of the employees lived in Chicago , but some lived in Indiana, some 15 to 20 miles from the pleat, the Board said that, THE FALK CORPORATION 721 3. Group meetings The Union's organizer testified that "direct contact with individuals" in "group meetings" is "the best way" to communicate with employees, Yet the record shows that the Union has no meeting place in the vicinity of the plant and has arranged only one meeting of employees. As described in greater detail above, on March 30, the Union attempted to distribute handbills in the vicinity of the plant and erected two large banners all announcing a union meeting for April 2. Although the Union was not required to remove the banner it had placed across the street from the plant, as it was the one on Milwaukee Road property, where employees entering or leaving the plant could read it, it suddenly struck this banner in "disgust," left the area, and did not return to put the banner up again for the close of the first shift. Nevertheless, _ 150 employees attended the April 2 meeting, and Spehert attributed this attendance in part to the handbills his assistants had been able to get into the hands of employees and to the use of the banners. It also appears that the Union does not use an in-plant committee of employees for organizational purposes, and although some card signers made up part of the attendance at the April 2 union meeting, no employees distribute union literature in the plant. On this record, although-no one set of organizational techniques can control the result, it would seem that the Union has itself fallen short of making "reasonable union efforts" to meet with employees in groups.12 4. Newspapers, radio, and television In Babcock & Wilcox, the Supreme Court noted that, in addition to the various methods of communications already touched upon, the "various instruments of publicity" were also available for the union's use,13 and so the use of newspaper, radio, and television-advertisements as possible avenues of communication with Falk employees cannot be lightly dismissed as something to consider along with other methods of communication in determining whether the Union can not effectively communicate with Respondent's employees unless- it is permitted to use Respondent's facilities. There are two major newspapers in the Milwaukee metropolitan area consisting of a morning daily (the Milwaukee Sentinel), and an evening `daily (The Milwaukee Journal), which also' publishes a Sunday edition. According to a survey by the Journal Company, which owns both newspapers, the percentage household coverage of the above newspapers in Milwaukee County was 99 percent for the Sentinel and Journal combined, and 100 percent for the Sunday Journal and the daily Sentinel combined. There are also weekly newspapers published in a number of suburbs and the Milwaukee Labor Press, captioned as "The Largest Local Labor Paper in the Nation.- A full page ad in the Sentinel costs $1,152, and in the Journal, $2,112, but the cost of less than a full page ad would be proportionately reduced. Costs of advertising in "it would be virtually impossible for the Union, without a list of addresses, which Solo in a recent representation case has refused to supply, to meet the Solo employees away from the plant premusss and convey its message." (Emphasis supplied) the Sunday Journal are somewhat higher than in the daily Journal. There are 22 AM and 20 FM radio stations in the Milwaukee metropolitan area, with 4 AM stations having the highest market density. There are 3 VHF, 1 UHF, and I educational television stations in the metropolitan area. Radio spots start at $5.50 and television commercials range from $140 for I minute during sports events to $566 for a 1- minute announcement during an evening broadcast of a Milwaukee Brewers baseball game. In addition, production costs amount to approximately $250. General Counsel argues , that newspaper advertising suffers the disadvantage of being an "impersonal means of communication" and is otherwise impractical because the Union would have to place repeated ads at a cost far in excess of what could reasonably be expected in the-way of return. In addition to these prohibitive costs, he also suggests that "in spite of the newspapers' high percentage of household coverage," there is no guarantee that, all of Respondent's employees would read the ads placed. In the case of radio and television, he emphasizes the cost and the great number of stations available, which would make it difficult for the Union to decide which one to use. In my opinion, the Board in Solo. Cup, although stressing the cost objections and other problems relating, to the use of newspapers, radio, and television stations in a large metropolitan, - area (Chicago), did not hold that the availability of such media are to be cancelled out and ignored completely when balancing the factors which determine the result in these cases. No one, except perhaps the owners of the newspapers, radio, and television stations, would argue that their media are the only, most effective, and the most economical way to transmit the message, but this does not mean that these methods cannot be considered for their possible use in connection with, but only as a part of, a combined campaign. The size and extent of their roles will depend on how much a union wants to spend. 5. Handbilling or other communications in the vicinity of the plant directed toward automobile drivers The analysis to this point has not included a discussion of the Union's ability to effectively reach automobile drivers with its message as they approach or 'leave the plant, although I have found that the Union can effectively communicate with a substantial number of employees who walk or bus to work. It is clear to me from the entire record that successful distribution of literature is obviously impossible from anywhere at the intersection of the Falk viaduct and Canal Street without-endangering the lives of union representatives, even assuming that the police would permit them to stand anywhere in the street or even on the "crack" which separates the viaduct from the public road. In addition to risk to the lives and safety of the distributors, automobile drivers hurriedly entering or leaving, a narrow driveway into the plant could cause accidents or traffic 12 N.L.R.B. I v. Kutsher's Hotel and Country Club, Inc., 427 F.2d 200 (CA_ 2). 13 351 U.S. at 114. 722 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jams if their attention is diverted and their progress is impeded. It is unnecessary to minutely detail conditions at the viaduct and Canal Street the record is clear from the testimony and the exhibits. It is enough to say that cars suddenly flow in and out in large masses, and-they may blend with some other automobile traffic on Canal Street; the drivers come from both the east and the west and they leave the same way, 75 percent going west and 25 percent east. In neither case can the driver be reached with a written message unless the union representative puts himself in the middle of the viaduct, which Respondent forbids,-or in the street which the police wisely prohibit; or unless the driver stops his car, slides over and lowers his window, which, it seems to me,' is no way to start a driver on what is probably a high-speed trip on a freeway.14 I also agree with General Counsel that the intersection of Canal Street and 32nd Street is not a suitable place to distribute literature to employees conning to or leaving work. There is a stop sign on the southwest corner of 32nd Street, but there is no sidewalk on the west side of the street, so union- representatives would have to stand in the street to reach the driver. In addition, 32nd Street is four lanes wide, and drivers turning east toward the Falk complex would be in the inside lane, thereby making it doubly difficult to reach'them unless the solicitor walked out into the middle of the street to reach the driver's side of the vehicle. After the driver turns off 32nd Street going east to the plant there is no stop- sign or other obstacle in his path until he reaches the plant. There is nowhere in that area therefore where the Union may effectively distribute literature. ' The, intersection of 32nd Street and Canal is also not a satisfactory place to try to distribute literature to employees leaving work by automobile. Although there is a public sidewalk on the north side of Canal Street, and on the east side of 32nd Street, there is no stop sign for westbound traffic at the 32nd Street intersection, and so it is unlikely that anxious motorists would stop to take leaflets from persons standing on the sidewalk. Moreover, when union representatives tried to handbill by standing in the street at the intersection of 32nd and Canal, they were prevented by the police, because they were obstructing traffic and risking their own persons. An additional problem of distribution at 32nd and Canal is, caused by some commingling of cars driven by Falk employees and other persons at that intersection. Milwau- kee Road employees, for the most part, drive south on 32nd and turn west on Canal on their way to work and retrace this route on the way home. Although shift changes of the two employers do not coincide, there is bound to be some overlapping, as a traffic survey in evidence reveals. I also reject Respondent's suggestion that the Union could effectively distribute literature to driving employees at certain arterial stop signs located from three to eight blocks away from the plant, for I agree with General 14 Respondent's own witnesses for a number of good reasons were concerned about the traffic problem that distribution at the entrance to the viaduct would cause. 18 In Excelsior, approved by the Supreme Court in N.L.R.B. v. Wyman- Gordon Company, 394 U.S. 759, with the Court noting that all United States Courts of Appeals that had passed on the question had approved the disclosure requirement, the Board, in partial support of its holding, compared its new requirement with the practice of providing stockholder Counsel's theory that it, may, be safely assumed that employee interest in or willingness to stop to accept a handbill would bein inverse ratio to the distance the driver has travelled from the plant. In addition, there would again be a substantial intermingling of .traffic at these points, union representatives (and there would be need for many) would not be able to determine where the cars came from, and since they would not be able to distribute in the street, they would be faced with the same problems in reaching the drivers as they would be at 32nd and Canal. C. Summary It has been foundthat the Union is unable, legally, safely, and effectively, to distribute literature to employees who drive to work, but it has been found that' there is no impediment to its reaching in the same fashion approxi- mately 25 percent of the employees who do not use that mode of transportation, and it has also been found that, in addition to the practicality of compiling a comprehensive mailing list of employees, all of the "other methods of communication, listed by the Court in Babcock-& Wilcox are readily available to the Union. It ought to be apparent, but perhaps it must be emphasized4in evaluating availabili- ty and general' utility, that it is not-the existence of any one method of.`communication that is controlling, but its effectiveness ' in combination that ' is significant, and I conclude' that the combination in this case tips the result in favor of no access. In this connebtion,"° a word 'about communications by mail is not irrelevant, for there is a suggestion in General Counsel's brief and in a case or two that this method of communication ranks low in effective- ness on the communications ladder, but in Excelsior Underwear Inc., 156 NLRB 1236„the Board, in-establishing a rule requiring an- employer, to file with the .Regional Director a list of names and addresses of all employees eligible. to, vote in a representation election within 7 days after a direction of election, which list would be available,to all parties participating in the election,-noted that "lack of information" -impedes a free and. reasoned choice in an election, and that.by giving the union the same opportunity the employer has through his possession of names and addresses of informing the electorate of his view, the union would also be certain of reaching all, employees with its arguments, thereby resulting-in an informed electorate. Although the Board did, not limit the union to the use of, the mails, it was, clear from the decision, that the Board considers a mailing list as an effective communication tool and for that matter so does the Union in this case, because Spehert so testified.15 Reference, to the Excelsior rule raises the, question of its possible bearing on ,the issues in this case, a question which I have not seen mentioned in;any of the access cases. If the Union is able to secure sufficient "evidence of representa- tion" (evidence, usually signed authorization cards, that 30 lists in corporate elections, or,other proxy contests, and the publication of voting lists in political elections. The use of the mails and telephone in these contests is,well known. The Board also'noted'that, any candidate for union office is 'by law entitled to have the union "distribute-his campaign literature to all members," and it concluded that it saw no reason, why similar opportunities should not be available in representation election." See Excelsior, supra, at 1242. THE FALK CORPORATION percent of the eligible employees desire union representation),16 it may file a petition, and the Board will direct an election. If the Union, therefore, can secure the support of only 30 percent of the electorate, it will not face the impediment _ that faced all unions when Babcock & Wilcox was decided and which' Excelsior removed in part.17 Although clearly a union has to be able to communicate with employees in order -to` secure a showing of- interest among them, the fact that it need secure only a 30 percent showing before it will be provided with an accurate list of all employees-before the election for campaign purposes is something the Board-may wish to consider when it assigns weights to each of the available means-of communication as it balances the statutory right of employees to organize and the right of an employer to control the use of his property.ls I conclude that Respondent did not violate Section 8(a)(1) of the Act when it refused to grant access rights to nonemployee union organizers to distribute union literature or otherwise disseminate union information to its employ- 1s Rules and Regulations and Statements of Procedure , National Labor Relations Board, Sec. 101.18. 17 Recall that the Board in Solo Cup, -supra, in finding that the union was unable by "reasonable attempts" to reach employees through "other 723 ees on. the Canal Street plant property, as alleged in the complaint. - CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. Respondent did not violate Section 8(axl) of the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. available channels of commummications," observed that the company had refused to supply the Excelsior list in a recent representation case. 18 N.L.R.B. v. Babcock & Wilcox, supra at 112.