Scholle Chemical Corp.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scholle; Chemical Corporation, Scholle Container Corporation, Scholle Northlake , Corporation, Scholle Atlanta Corporation, Scholle Dallas Corpo- ration, Scholle Long Beach Corporation, and Scholle Ridgefield Corporation and Oil, Chemical & Atomic Workers International Union, AFL-CIO. Case 13-CA-9501. August 18, 1971 DECISION AND ORDER On August 11, 1970, Trial Examiner Milton Janus issued his Decision in the above-entitled proceeding, finding that the Respondents, Scholle Chemical, Container, and Northlake, had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed 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 this 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 Respondents, Scholle Chemical Corporation, Scholle Container Corporation, and Scholle North- lake Corporation, Northlake, Illinois, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.2` IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges the commission of unfair labor practices by Scholle Atlanta Corporation, Scholle Dallas Corporation, Scholle Long Beach Corporation, and Scholle Ridge- field Corporation. CHAIRMAN MILLER, concurring in part and dissenting in part: Like my colleagues, I agree that the Respondents' 1 The Respondents' request for oral argument before the Board is hereby denied as the record and briefs adequately present the issues and positions of the parties. 2 In footnote 8 of the Trial Examiner's Decision, substitute "20" for representatives exceeded the: limits of permissible conduct by escorting nonemployee' union organizers across property'owned by Automatic Electric Compa- ny to the public domain along North Avenue, near the Respondents", plant. However,' I am not prepared to say that the Respondents violated the Act by ,refusing the :Union 'access to its own property,, asthere has been no showing that access to,the Scholle.property itself is the only reasonable means of reaching Scholle employees. Nor, am I constrained to decide, in the circumstances of this case, whether the`Union's right of access to the employees it seeks to organize is paramount to the right of Automatic Electric to exclude such nonemployee union organizers from its property -under principles established in Babcock & Wilcox. 3 The facts are uncomplicated and are not in dispute. The Respondents' plant is located in a suburb of the Chicago metropolitan area. Access to this plant can be gained only by means of a three-lane road which is owned and maintained by Automatic Electric Com- pany, another employer with a place of business on the same industrial tract .4 The Respondents and the other employers located on this tract and their business invitees and guests use the access road, known as Railroad Avenue, pursuant to an easement granted by Automatic Electric. The latter permits no advertisement or solicitation of any kind on Railroad Avenue, which has never been dedicated to any public use. However, there is no evidence that the employers using Railroad Avenue, including Scholle, have any authority or responsibility to enforce against others these restrictions established by Automatic Electric. Vehicular traffic over the road extends only between the public, thoroughfare, known as North Avenue, and the places of business located on the industrial tract. The intersection of Railroad and North Avenues is less than 500 feet from the Respondents' plant which is clearly visible from that point. A 50-foot strip of unpaved, state-owned land runs alongside North Avenue, between it and the Respondents' property. On October 30, 1969, the Union decided upon a campaign to organize the Respondents' employees. On the following day, two union representatives entered the Respondents' property and began to distribute campaign materials and solicit employee support. They were interrupted by the Respondents' officials who escorted them past Railroad Avenue to the public domain along North Avenue and advised them that entry onto both their property and Railroad Avenue is forbidden to the general public. Thereupon, the Union, having come to the conclusion that it "l0" days. 3 N.L.R.B. v. Babcock & Wilcox Company, 351 U.S. 105 (1956). 4 See diagram, appended hereto. 192 NLRB No. 101 SCHOLLE CHEMICAL CORP. 725 would not be "feasible" to engage in organizing activities on public property at or near the intersection of North and Railroad Avenues, requested permission from the Respondents to enter upon their property for that purpose. The Union's request was denied. The record does not indicate whether the Union made a similar request of Automatic Electric , nor was the record likely to, as Automatic Electric was not joined as a party respondent in the instant proceeding. In my view, this failure ,to join Automatic Electric prevents the Board from answering a central question in this case : namely, what constitutes reasonable access to employees which a union must have in order that employees may exercise their rights under the Act and, accordingly, to what extent, if any, must property rights be circumscribed in order to obtain an accommodation between these opposing rights with as little destruction of the one as is consistent with the maintenance of the other. This leaves for determination the question of the Respondents' conduct in asserting dominion over Railroad Avenue by excluding nonemployee organiz- ers therefrom. No right to engage in such conduct devolves on the Respondents fpm any acknowledged source. I would find that, by so acting, the Respon- dents exceeded the limits of permissible conduct and, by thus interfering - with employees' rights to self- organization, violated Section 8(a)(1) of the Act. Accordingly, I would prohibit the Respondents from themselves interfering with nonemployee union or- ganizers who solicit or distribute campaign materials along Railroad Avenue beyond the confines of the Respondents' property. MEMBER KENNEDY , concurring in part and dissenting in part: I agree with Chairman Miller's conclusion that Respondents violated Section 8(a)(1) by excluding nonemployee organizers from Railroad Avenue. I would reverse, however, the finding of the Trial Examiner that Respondents interfered with the statutory rights of employees by prohibiting distribu- tion and solicitation by nonemployee organizers on Respondents' property. The Supreme Court held in Babcock & Wilcox, 351 U.S. 105, that an employer could validly post his property against nonemployee distribution of literature if reasonable efforts by a union through other available channels of communi- cation would -enable it to reach employees with its message. The record herein demonstrates that the Union in fact has reasonable access to the employees. The Trial er found that during the period from January 28, 1970, through March 30, 1970, the Union had compiled a mailing list of about 220 of the approximately 350 hourly paid employees of the Respondents. The record includes a letter addressed by the Union to Respondents' employees on March 30,1970, in which the Union stated: "A good move on our part would be to have 75 to 80% of the employees signed up and at the trial [on the complaint herein] demand recognition. The National Labor Relations Board might well order Scholle to recognize Oil, Chemical and Atomic Workers as the exclusive bargaining agent for you employees at that time." Under these circumstances, it is difficult to conclude that the Union had no effective means of reaching the employees with its message. The General Counsel, in my judgment, has not met the burden of showing that the Union was deprived of reasonable access to the employees. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MILTON JANus, Trial Examiner: Oil, Chemical & Atomic Workers International Union, AFL-CIO (hereafter called the Union or the Oil Workers), filed its original charge on December 3, 1969, against Scholle Chemical Corporation, an amended charge on January 16, 1970, adding Scholle Container and Scholle Northlake as additional named employers, and a second amended charge on February 18, 1970, adding the other four employers listed in the caption of this case. The original complain based on the charge and the first amended charge, was issued on January 19, 1970. On March 3,1970, an amended complaint was issued, based on the second amended charge. The amended complaint alleges three specific violations of Section 8(a)(1) of, the National Labor Relations Act, herein the Act, by the Respondents. On the last day of the hearing, the General Counsel moved to amend the complaint to, add another instance of a violation of Section 8(a)(1), which I denied for reasons to be explained later. I conducted a hearing in this matter at Chicago , Illinois, on April 28 and 29, and on May 12,1970. After the hearing, the General Counsel and the Respondents filed a motion to correct the transcript in two respects. The motion is. hereby granted. The General Counsel and the Respondents also filed briefs, which I have considered in my determination of this matter. Upon the entire record in this case, and from ,my observation of the witnesses and their demeanor, I make the following: Fn nn.Ios OF FACT 1. THE BUSINESS OF THE EMPLOYERS The seven corporations named in the amended complaint are duly organized and authorized to do business by the laws of State of Illinois. Scholle Chemical is engaged in the manufacture and We of nitrocellulose base solution and other related products. It and two other of the corporations, Scholle Container and Scholle Northlake, are the only Scholle entities which employany hourly paid employees at the plant which they occupy in Northlake, Illinois. The three corporations have the same directors , president, executive vice president, secretary and treasurer, as well as 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same personnel manager who administers a common labor relations policy on their behalf. During ; the past calendar- year, Respondents have manufactured and shipped goods and products valued in excess of $50,000 from Northlake, Illinois, to points outside the,State of Illinois, and have purchased and had delivered to the, Northlake plant goods and materials valued in excess of $50,000 from States other than Illinois. Based on the foregoing, -I find that Scholle Chemical, Scholie Container, and Scholle Northlake constitute a single employer which is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I shall hereafter refer to these three corporations collectively as Scholle, and when they need to be differentiated, as Chemical, Container, and Northlake. As the other four corporations had no hourly rated employees at the Northlake plant, and as the General Counsel has not shown their participation in, or their connection with, the events described below in any manner, I hereby grant the motion' of'Respondent's counsel to dismiss the complaint as to them. 11. THE LABOR ' ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Complaint and the ' Issues The complaint alleges that Scholle violated Section 8(a)(1) by (1) interfering with union officers and agents who were distributing literature to Scholle employees at the entrance to its plant and parking lots on October 31, 1969; (2) by threatening, on the same date, the union officers and agents with arrest and prosecution for trespass if they persisted in distribution of literature and solicitation of employees at the location described above; and (3) by refusing, in 'a letter of December 2, 1969, a request of a union official for permission to distribute union literature at the Scholle plant'entrances. 'The only access to the Scholle plant and its parking lots is through a private road owned and maintained by another employer in the area, Automatic Electric Company. That company prohibits all solicitation or distribution of material on its private road. The question to be decided is whether, under the circumstances here, Scholle may validly deny to nonemployee union organizers access to its property for purposes of distribution 'of literature and oral solicitation of its employees. Railroad Avenue and its Adjacent Area The Scholle plant is located in Northlake, Illinois, a suburb of ' Chicago, close to the intersection of North Avenue and Railroad Avenue. North Avenue is a major thoroughfare and state route running east and west through Chicago and certain of its western suburbs. It has a posted speed limit of 40 miles per hour. Its average traffic load in x The lots can also be entered from Wolf Road, a public road east of the Automatic Electric plant and parallel with Railroad Avenue. The lots are closed off during hours when employees are not entering or leaving the both directions is about 38,000 vehicles per day. The private road owned by Automatic Electric is known as Railroad Avenue. It runs north of North Avenue, perpendicular to it, and dead-ends into the parking lots of Automatic Electric. Railroad Avenue is a paved, three-lane highway, posted for a 30- mile-per-hour speed limit. There are traffic control lights at the intersection of North and Railroad Avenues. Traffic and other signs on Railroad Avenue are owned by Automatic Electric. The Scholle plant area is on the west side of Railroad Avenue. Between North Avenue and the Scholle plant buildings is an unpaved strip of state-owned property about 50 feet wide, an unpaved strip of Scholle property about 170 feet wide, and a parkinglot about 100 feet wide. These are all south of the plant. North of it is another Scholle parking lot, while in front of the plant and its main entrance, facing Railroad Avenue, is another parking area for about 30 cars. Behind the Scholle property on the west are railroad tracks, running parallel with Railroad Avenue. Also on the west side of Railroad Avenue and to the north of the Scholle property are buildings and parking areas of three other employers. On the east side of Railroad Avenue but without access to it is a residential area, and immediately north of that is the plant and parking lots of Automatic Electric. Scholle employes about 350 people at its Northlake plant and Automatic Electric about 11,000, most of whom arrive and leave by private automobile. The official of Automatic Electric who is in charge of plant engineering and security, including supervision of its parking lots, estimated that about 40 percent of its employees use Railroad Avenue in entering or leaving the parking lots.' - Of Automatic Electric's factory and office employees, about 7,600 work on the day shift, with starting times staggered from 6:30 to 8:30 a.m. That shift leaves from 3 to 5 p.m., just as the second shift of about 1,800 employees comes to work. A smaller third shift reports from 11 p.m. to 12:30 a.m., and leaves as the day shift comes in. Of the Scholle entities, Chemical and Northlake operate only a day shift, from 7:30 a.m. to 3:50p.m., with about 50 employees, while Container has 3 8-hour shifts and a fourth overlapping shift of about 6 hours, which together employ about 300 workers. Container day-shift employees number about 130. Thus, Scholle's employees on all-shifts report to and leave work in the stream of those Automatic Electric employees who use Railroad Avenue in coming to and leaving work. Taking the day shift as representative for all shifts, the Scholle employees who turn off North Avenue onto Railroad Avenue in their private cars are a small' percentage of the total traffic carried by that road, roughly 180 as compared to about 3,000, the number of Automatic Electric day shift employees who use Railroad Avenue. There is no way to distinguish the two groups as their 'cars turn north 'onto North Avenue from both directions, to enter ''Railroad Avenue. Furthermore, as the day shifts end and the second shifts report, it is obvious that many plant, so vehicles are unable to use them as a link for any through movement df traffic via Railroad Avenue. SCHOLLE CHEMICAL CORP. hundreds of cars are entering or leaving Railroad Avenue within a relatively short period of time. The Union's Efforts to Organize Scholle Employees Attempts at Handbilling Hall, an International Representative of the Union, met two Scholle employees on October 30, 1969, to discuss possible organization, and it was decided that Hall would distribute some union literature at the plant. Hall and another Union representative, Ryan, arrived at the plant the next day about 3 p.m. Hall stood near the plant's main entrance, in the small parking area directly in front of the building, while Ryan stood at the entrance to the north parking lot. They spoke with employees and passed out envelopes containing a handbill and authorization card for 5 or 10 minutes when several men came out of the main entrance to talk with Hall. One of them was Pettinger, Scholle's personnel manager, who, after some preliminary conversation, advised Hall that Railroad Avenue was a private road and that distribution of literature was prohibited on it. Another man, Mascarella, a Scholle supervisor, then approached and repeated that Railroad Avenue was a private road. Mascarella is a part-time officer in the Northlake Police Department, and in response to Hall's vocal doubts that Railroad Avenue was private, showed him his police badge. There is some conflict in the testimony of Hall, on the one hand, and Pettinger and Mascarella on the other, as to whether the latter threatened Hall with arrest for trespass, intimated that trespassers were subject to arrest, or merely identified himself and directed Hall to the Northlake town hall where he might satisfy himself that Railroad Avenue was a private road. In any event, Hall and Ryan left the parking area and stood on the 50-foot strip of unpaved State property at the northwest intersection of North and Railroad Avenues to assess the feasibility of handbilling from there. They felt it would not be productive because of the heavy traffic on Railroad Avenue and the impossibility of telling which of the cars passing by contained Scholle employees. Hall met again with his two employee contacts on November 6 and reported his lack of success. He asked them about arranging a meeting with other employees and about obtaining a mailing list. One of the employees suggested that he come out to the plant early on Veteran's Day, when officials might not be around. Hall did so from 6:30 to 7:30 a.m., stood near the plant entrance, and was able to pass out about 120 handbills. Two days later Hall again met his employee contacts who brought him an old Christmas mailing list, which they decided was useless because it was out of date and contained mainly supervisors' addresses. On November 21, Hall sent Scholle a letter requesting access to the plant entrances for distribution of leaflets, and on December 2 Pettinger responded, asking him to refrain from using the private road (Railroad Avenue) for distribution. Pettinger also pointed out that "traffic conditions are intense on this road during the hours of change of shift," something which Hall had already discovered for himself on October 31. Pettinger also noted 727 that in the past organizers and picketers had respected the private ownership of the road and had remained on the public domain of North Avenue., Pettinger closed his letter by a formal offer of further assistance or information if needed. On January 12, Hall again wrote Pettinger asking him to supply the Union with a list of names and addresses of all current hourly rated Scholle employees, but he never received an answer. Hall did not go out again to the plant until April 21, 1970, when Automatic Electric employees were on strike. Hall figured he would therefore be able to -contact only Scholle employees. He stood on the public area, just at the intersection of North and Railroad Avenues, trying both the east and west sides of Railroad, Avenue for over 2 hours, overlapping shift changing time. He was unable to get anyone to stop or to accept a handbill. Hall tried again the next morning at the same spots but was able to get only 5 handbills accepted out of the hundreds of cars passing by. Mailings to Employees As of December 5, 1969, Hall had obtained only 12 signed authorization cards. On that date, he sent letters to the card signers, telling them that he had filed charges with the Board and that he would be phoning them soon in order to arrange to meet them. As a matter of fact, Hall did call all of them but was never able to get to'see anyone except his two original employee contacts. On January 28, 1970, Hall sent a letter to about 40 employees asking them for help in compiling a complete mailing list of employees, enclosing an authorization card and self-addressed envelope. The same letter was later mailed to additional employees. On February, 12, Hall sent another letter, this time to about 70 employees, saying that their names had been suggested by a fellow employee, as being possibly interested in organization, and again enclosing authorization cards. On February 24, Hall sent another letter to 120-150 Scholle employees, inviting them to sign cards and asking for the correct. addresses of 16 named employees, previous letters to whom had been returned. On March 30, Hall sent another, letter to 200-220 employees, again enclosing authorization cards and asking for names and addresses of other employees. There is no evidence in the record as to how Hall came into possession of the names and addresses of those to whom his letters from January through March were mailed, but it is probable that they came from the letter solicitations. Hall testified that he was never sure of the accuracy either of their names or addresses, and it is obvious that some of the addresses were in fact incorrect. On the other hand, I must assume that as the mailings became larger, more employees in fact were being reached by that mmans. At best, however, Hall was never able to get the names and addresses for more than about 220 employees out of 350 and could not be certain how many of these were correct. Of the Scholle employees about 27 percent live in Northlake, the town where the plant is located. About 58 percent live in other Chicago suburbs, and 15 percent live in Chicago. 728 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD Other Possible Means of Reaching Employees The Respondent introduced evidence to show that service and charitable organizations , such as the Kiwanis Club, have used the intersection of North and Railroad Avenues to sell articles to, or to solicit contributions from passing motorists, using solicitors who wore brightly colored ponchos with identifying insignia. The solicitors walk between lanes of cars which are waiting for the traffic signal to change, step off the median strip on North Avenue to approach drivers, and stand in or near the turning lane. Al! this has been done to the financial success of the organization without intruding onto Railroad Avenue. The solicitation is done 1 day each year, and the witness who did the job at the North and Railroad Avenue intersection testified that there were five solicitors strategically placed there for about 2 hours to approach as many motorists as possible between traffic light changes. Respondent also brought out through Hall that the Union had not attempted to communicate with Scholle employees by newspaper or radio advertisements or announcements, by distributing bumper stickers, by carrying or wearing identifying placards, by using an airplane with a streamer behind it, by ascertaining license numbers of vehicles used by Scholle employees, or by using loudspeakers to attract their attention. Solicitation inside the Plant Hall was apparently unable to get any Scholle employees to undertake any distribution of union handbills inside the plant or on the parking lots. Whether this was because of a lack of employee -interest, or fear, is impossible to say. During the Last day of the hearing, while General Counsel was cross-examining Pettinger, Scholle's personnel manag- er, he testified that ' Scholle had a rule against employee solicitation within the plant and on its property. The rule was contained in a foreman's handbook but was also given to employees on some basis not fully developed on the record. On the strength of Pettinger's testimony on this point, the General Counsel moved to amend the complaint to allege as an additional violation of Section 8(a)(1), the promulgation and maintenance of a rule prohibiting employees from soliciting on behalf of a labor organization or from distributing literature on Respondent's property at any time. Respondent objected to the amendment, and I denied the General Counsel's motion to amend, even though I was satisfied that the matter was within thegeneral scope of the charge. I did so because Pettinger's testimony referred to new matter which, if it were to be fully litigated, would have entitled Respondent to a postponement of the hearing in order to defend itself properly. It also seemed to me to be outside the general theory of the complaint, namely, that nonemployee union organizers had no reasonable means of communicating with employees unless they could speak with them-and distribute literature to them on the private property of either Scholle or Automatic Electric. Oral solicitation or distribution of union literature undertaken by employees in the employer's plant ori on its parking lot is governed by different principles and rules, relating to nonworking areas and nonworking time, than those applicable to solicitation or distribution by nonem- ployees outside industrial plants. Whether nonemployee organizers may be prohibited from entering on private property to distribute union literature cannot'depend on whether there is also in effect an invalid employer rule against employee solicitation or distribution. In fact, up to the point when Pettinger revealed the existence of a possibly invalid rule against solicitation and distribution by employees, the General Counsel was trying the case on the premise that Respondent was improperly barring nonem- ployee organizers from private property regardless of the nonparticipation by employees in the union's organizing activities. In sum, I thought then, and still do, that this case should not have been further prolonged 'to try a new allegation which could not affect its ultimate resolution. Analysis and Conclusions The General Counsel and Respondent agree that the Supreme Court's decision, 1V L.R.B. v. Babcock & Wilcox Company, 351 U.S. 105 sets out the standards which determine the legality of an employer's posting his private property against its use bynonemployee organizers who are attempting to communicate with his employees. Each quotes from the decision those portions which best fit its view of the facts, and in the interests of impartiality, I set out below the parts quoted by either party, with connecting language. It is our judgment, however, that an employer may validly post his property against nonemployee distribu- tion of union literature if reasonable efforts by the union through other available channels of communica- tion will enable it, to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution. In these circumstances the employer may not be compelled to allow distribution even under such reasonable regulations as the orders, in these cases permit. This is not a problem of always open or always closed doors for union organization on company property. Organization rights are granted to workers by the same Authority, the National Government, that preserves property rights. Accomodation between the -two must be obtained with as little destruction of one as is consistent with the maintenance of the other,, The employer may not affirmatively interfere with organiza- tion; the union may not always insist that the employer aid organization, But when the: , inaccessibility of employees makes ineffective the reasonable,attempts by nonemployees to communicate with,, them through the usual channels, the right to exclude' from property has been required to yield to the extent needed to permit communication of information on the right to organize. ... The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Conse- quently, if the location of aplant and the living quarters of the employeees place the employees beyond thei reach of reasonable union efforts, to communicate wit hi them, the employer must allow the union, to approacch his SCHOLLE CHEMICAL CORP. 729 employees on his property. No such conditions are shown in these records. The plants are close to small well-settled communi- ties where a large percentage of the employees live. The usual methods of imparting information are available. See, e.g., note 1, supra. The various instruments of publicity are at hand. Though the quarters of the employees are scattered they are in reasonable reach. The Act requires only that the employer refrain from interference, discrimination, restraint or coercion in the employees' exercise of their own rights. It does not require that the employer permit the use of its facilities for organization when other means are readily availa- ble. (351 U.S. 105,112-113.) The Board has applied the principles of Babcock & Wilcox to a few cases, where, as here, the issue was an employer's right to prohibit the distribution of union literature by nonemployee organizers within an industrial tract in a metropolitan area .2 In General Dynamics, 137 NLRB 1725, a large industrial tract in Rochester, New York, bounded by public streets but bisected by a private road, was owned and wholly occupied by a single employer. The tract had five entrance gates, one of which opened onto a public street, and two of which were reached from the intersection of a boundary public street with the private road. These two entrances were the most heavily trafficked means of ingress to the plant area and were used daily by a little less than half of the total employee complement of 4,500 employees. The Union engaged in handbilling at all five plant entrances, being barred by the employer from distribution only on the private road itself. The private road was clearly posted as such and had never been dedicated as a public street, although for the convenience of the public, the employer permitted limited use of its road as a passageway between the public streets at each end. The Board, reversing the Trial Examiner, upheld the employer's right to bar union distribution of handbills on the private road itself, finding that the employees were not beyond the reach of reasonable union efforts to communi- cate with them. The Union could do so, according to the Board, by handbilling employees in automobiles on the two public streets at the intersection with the private road, as well as those employees who walked to work or used public transportation. The Board also pointed out that the Union had been able to visit employees in their homes and to reach them by mailings during its 4-year campaign. The second Board case involving distribution of union literature by nonemployees within an industrial tract is Solo Cup Company and Calumet Industrial District Company, 172 NLRB No. 110. Here, the tract within which Solo's plant was located included a private street owned by Calumet. The only way to communicate with Solo's employees, without entering on Calumet's property, was to pass out handbills to the employees at the intersection of the private street and the boundary public highway. The Board found that it was virtually impossible to stand safely at this 2 Cases involving organization by nonemployees at resort hotels, lumber camps, company towns, company housing, shopping centers, or retail stores, with their surrounding parking areas, present some aspects of the limited issue here, but are sufficiently distinguishable that they need not be discussed further. intersection and successfully pass out literature of any kind because cars approaching the intersection turned both right and left onto the private street.3 The Union also had no list of addresses of employees, so that it could not reach them by letter. Further, the Board said, even assuming that cost was no object, the Union would have a problem communicating with Solo employees in view of the large number of newspapers, and radio and television stations operating in Chicago and its surrounding area . The Board therefore found that the Union was not reasonably able to reach Solo's employees through other available channels of communication, and that the Respondents' rule of absolute exclusion of union organizers from their premises was invalid. The Board also held in that case that the entire industrial tract, including the private road, had become a quasi-public area because there were no indications that access to the property was barred by Solo or Calumet to the general public other than union organizers. The Board analogized the situation to that of a privately owned _ suburban shopping center, which is the "functional, equivalent" of a "normal municipal business district" with unrestricted rights of access to the property on the part 'of the public. The Board based this analogy on the Supreme Court's decision in Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza, Inc., 389 U.S. 911, in which the Court held that a privately owned shopping center to which the public was invited could not exclude nonemployees who sought to peacefully picket and distribute literature on the premises. The Board thereupon ordered both Solo and Calumet to grant access rights to union organizers on the 'outside of the plant premises located in Calumet's industrial tract. (Although it does not state so explicitly, the decision seems to mean that the union organizers would have a right of access to Calumet's private road as well as to the parking lots, used by Solo employees.) After the Board instituted enforcement proceedings against Solo and Calumet, the latter agreed to comply with the Board's Order by allowing union organizers to solicit employees on the private road. The Court of Appeals then refused enforcement of the Board's order against Solo, holding that the industrial district was not the functional equivalent of either a municipal business district or of a shopping center, since it did not hold itself out as being open to the public, nor did the public have any reason to enter the area . Since the industrial tract was not quasi-public, . Solo committed no discrimination against nonemployee organizers by barring them from its property. Furthermore, the Court held that the Union now had a reasonable means of soliciting Solo employees on the private road since they were readily distinguishable from other employees in the area because they were the onlyones whose quitting time was 2 p.m. The Court therefore saw no necessity to allow nonemployee organizers to solicit employees on the steps of the Solo plant or in their parking lot 4 The Court remanded the case for modification of the 3 From the figures 'given in, fn.' V of the Board's decision, -it can be presumed that traffic at the intersection of the private and public roads was much lighter than, in the instant case, at the intersection of North and Railroad Avenues. 4 N L.R.B. v. Solo Cup Co., 422 F.2d 1149 (C.A. 7). 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's order as to Solo, in accordance with its opinion, and this has since been done, 182 NLRB No. 101. The revised order requires Solo not to interfere with union solicitation of its employees "on property other than that which it leases from ' the Calumet Industrial District Company." I presume this means that distribution by nonemployees may be barred in Solo's parking lot and at the entrances to its plant. As for the Board's finding in Solo Cup that the Calumet Industrial District is a quasi-public area, I am bound thereby, despite the holding of the Court of Appeals to the contrary,5 since the public's access or use of the Calumet tract is not significantly different from that in the instant case. Although in neither case can the private road be used by automobiles as a connection between public highways, yet certain governmental services such as police, fire, and mail were " provided or available, 'while employees of business organizations furnishing services to the industrial firms within the tract were freely permitted to enter. In any event, the Board's reliance on the quasi-public nature of the industrial district in Solo Cup is in fact subordinate to its primary holding, that nonemployee organizers were not able to reach Solo's employees other than by _communicating with them within the industrial tract., In Solo Cup, the owner of the private road within the industrial tract, Calumet, was joined as a Respondent, and its eventual compliance with the Board's order granting union "organizers-the right to distribute literature to Solo's employees on the private road gave the union in effect a reasonable method of communicating with them. In the present case, however, Automatic Electric, which owns Railroad Avenue, was not joined as a Respondent. Its policy prohibiting any solicitation or distribution on Railroad Avenue is not under attack here, nor can an order be issued against it. The Union is thereby foreclosed from contacting Scholle employees on the only access road leading, to their place of employment. The General Counsel recognizes this by making no contention that the Union organizers should be -allowed' on Railroad Avenue, arguing rather 'that tliey should be allowed on Scholle's private property, at or near the plant entrances or, in the alternative, in, its parking lots or at their entrances. Granting then, that the Union had no justification for demanding, the pri vilege of distributing literature on Railroad Avenue in view of Automatic Electric's nondiscri- minatory ban. on all° distributions or solicitations on its private property, what means did it have to bring its message to, Scholle employees? For direct handbilling, as one available channel of communication, Scholle would relegate the Union to the public part of the intersection of North and Railroad Avenues; It also argues that the Union had additional means available to it-the names and 'addresses of about 220 of its 350 employees, which the union could use to reach them by mail, telephone, or home visiting. It compares these available means to those which the union had at the Babcock & Wilcox plant, where the Supreme Court noted the Board's finding that the union See Iowa Beef Packer.% Inc., 144 NLRB 615, 616. 6 The fact that the Kiwanis peanut vendors solicit for 2 hours or so once a year does not prove that they do not run the same risks, but only that had mailed its literature to over 100 of the 500 employees in that plant, had talked to them on the streets of the town nearest the plant, and had visited and phoned them at their homes. The differences however, as to the relative accessibility of the employees at the Babcock & Wilcox plant, and in this case, is that in the former, the plant was close to small, well- settled communities where a large percentage of the employees lived. Here, although the plant is located in a small town, Northlake, the town itself is only a small segment of the complex, widespread Chicago metropolitan area with a population of more than 5 million. Although about 25 percent of the employees live in Northlake itself, fairly close to the plant, neither they nor the 75 percent of the employees who live in Chicago or other suburbs can be approached in the informal manner possible in small towns which are located in rural areas. The impersonality and isolation of living in a large metropolitan area makes it extremely difficult to reach employees away from their place of employment. Nor can the Union effectively reach the employees with literature or by oral solicitation at the intersection of North and Railroad Avenues. It cannot identify the Scholle employees, since they enter and leave Railroad Avenue among the thousands of cars and employees who are coming to or leaving the Automatic Electric parking lots about the same time, nor can it even pass-out handbills at the intersection without running inordinate risks to the physical safety, of its organizers as well as disrupting traffic and hazarding collisions if car drivers slow down to accept its'handbills 6 Furthermore, unlike the situation in General Dynamics, supra, none of the Scholle plant entrances face a public road where distribution to at least some employees would be possible, nor can the Union direct its efforts to reaching only Scholle employees, by distributing handbills to all cars as they enter or leave the private road. The problems in communicating with employees which the Union faces here are much more like the union's problems in Solo Cup than they are with those in General Dynamics.Here, as in Solo Cup, the industrial tract is the work place for employees' of many employers; the traffic problem is the same in that there is only one means of automobile ingress to the property, with a heavy surge of traffic at the beginning and end of every shift; while the lack of any reasonable means of reaching the employees away from their place of employment is the same. I therefore hold, on the authority of Solo Cup, that Scholle's normal right to post its property against nonemployee distribution of literature must be accommo- dated to the Union's right to inform the employees of the advantages of self-organization. Other Allegations of the Complaint A second allegation is that Scholle violated Section 8(a)(1) by threatening the union organizers with arrest and prosecution for trespass on October 31,1969, if they persisted in their distribution efforts on Scholle's private they are welling to take these risks in order to accomplish their limited goal of ' i indiscrumnate solicitation of every car moving on North Avenue during those few hours. SCHOLLE CHEMICAL CORP. property. I find that Mascarella's announcement that he was a police officer and that Hall was a trespasser on Scholle property and on Railroad Avenue placed Hall in fear of arrest and prosecution. However, Hall was indeed trespassing, and Masearella's warning was not excessive under those circumstances. This was the date of Hall's first visit to the plant. The Union had made no earlier attempt to reach the employees other than by soliciting on private property, and it was therefore uncertain whether the Union should be accorded -the privilege of encroaching on Scholle's dominion over its property under the principles of Babcock & Wilcox. On this initial visit of the Union organizers, Scholle was justified in pointing out that they were on private property and forbidding distribution of their literature. I therefore recommend dismissal of this allegation of the complaint. A third allegation relates to the charge that Scholle refused Hall's request of December 2, 1969, for permission- to distribute literature at its plant entrances.' The refusal was simply an aspect of Scholle's contention that it was under no obligation to allow its property to be used in the Union's organizing efforts. Since I have found to the contrary, and since my proposed order will provide access for the Union to the Scholle parking lots and building entrances, I see no need to regard the allegation as stating a separate offense, or as requiring any additional remedy. Accordingly, I find that Respondent interfered with the rights of its employees under Section 7 of the Act by denying the Union organizers access to its premises for the purposes of distributing literature, otherwise communicat- ing with the employees, and soliciting membership in the Union. Conclusions of Law 1. Scholle Chemical Corporation, Scholle Container Corporation, and Scholle Northlake Corporation constitute a single employer which is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical & Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to permit the Union's nonemployee organizers to distribute leaflets and handbills and to solicit Scholle employees within its parking lots, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, I make the following: RECOMMENDED ORDER Scholle Chemical Corporation, Scholle Container Corpo- ration, and Scholle Northlake Corporation, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting or interfering with nonemployee Union organizers in distributing union literature and in soliciting union adherence or membership, in its parking lots and 731 parking areas at points reasonably adjacent both to their entrances from Railroad Avenue and to plant entrances for employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Allow Union organizers to distribute union literature and to solicit union adherence or membership, at points within its parking lots and parking areas which are reasonably adjacent to Railroad Avenue and to employee entrances to the plant. (b) Post at its plant in Northlake, Illinois, copies of the attached notice marked "Appendix." Copies of said notice 7 on forms provided by the Regional Director for Region 13 shall, after being duly signed by an authorized representa- tive, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. - (c) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.8 T In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 8 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TILE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Recommended Order of a Trial Examiner 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 allow organizers and agents of Oil, Chemical & Atomic Workers International Union, AFL-CIO, to distribute their literature and to solicit the support of our employees in our parking lots and parking areas at points which are reasonably close to Railroad Avenue and to the employee entrances to our plant. All our employees are free to become, or to refrain from becoming, members of any labor organization. 732 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD SCHOLLE CHEMICAL CORPORATION, SCHOLLE CONTAINER CORPORATION, SCHOLLE NORTHLAKE CORPORATION (Employers) (Representative) (Title) This is an official notice and must not be defaced by anyone. This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this Notice or compliance with its provisions. may be directed to 'the Board.'s,Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572. AVAUVOal Oft