Meier & Frank Co.

MEIER & FRANK CO. 491 May Department Store Company d/b/a Meier & Frank Co. and Retail Clerks Union Local No. 201, affiliated with Retail Clerks International Associa- tion, AFL-CIO. Case 36-CA-1981 July 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 21, 1971, Trial Examiner Leo F. Lightner issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs I and has decided to affirm the Trial Examin- er's rulings, findings, and conclusions only to the extent consistent herewith. Respondent excepts to the Trial Examiner's finding that Respondent's no-solicitation rule, which prohib- its all nonemployee solicitation within Respondent's department store, is unduly restrictive of employee Section 7 rights and violative of the provisions of Section 8(a)(1) of the Act. We find merit in Respondent's exception. As Respondent correctly points out, the Supreme Court's decision in N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, which the Trial Examiner failed to consider in his Decision, is controlling authority. In Babcock, the Court stated, "[The Act] does not require that the employer permit the use of its facilities for organization when other means are readily available."2 The Court further stated, . . . an employer may validly post his property against nonemployee distribution of union litera- ture if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution.3 There is no contention that Respondent's no- solicitation rule discriminates against the Charging Party by allowing other distribution. Nor does the Charging Party contend that there were no other available channels of communication enabling it to reach the employees with its message. Indeed, the facts show otherwise. As the Trial Examiner found, Respondent's rules 198 NLRB No. 85 require that the employees use the employee en- trance, and no other entrance, when they report for work and when they leave at the conclusion of the workday. On at least six occasions, the Charging Party distributed leaflets to employees as they entered and left Respondent's store. The leaflet distributors were at the employee entrance at times when the traffic was heaviest, in terms of employees arriving or leaving. The Charging Party admits that there was no interference with its program of passing out leaflets. Based on the above, we do not believe there exist any extraordinary circumstances which necessitate additional union access to the Respondent's facili- ties, and we find that the Respondent, by denying the Union access to its facilities, has not thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Accordingly, we shall dismiss the instant complaint.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. I As the record and the briefs adequately present the positions of the parties, Respondent's request for oral argument is hereby denied. 2 351 US at 114 9 Id at 112 4 We find no merit in Charging Party's reliance on Amalgamated Food Employers Union, Local 590 v Logan Valley Plaza, Inc, 391 U S 308 See also Central Hardware Co v N L R.B, 407 U S 539 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Portland, Oregon, on October 19, 1971, on the complaint of General Counsel, and the answer of May Department Store Company d/b/a Meier & Frank Co., herein referred to as Respondent.' The complaint alleges violations of Section 8(a)(1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. 151, et seq. ), herein called the Act. The parties waived closing argument and briefs filed by the General Counsel and Respondent have been carefully considered. Upon the entire record, all of which was received by stipulation, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT Respondent is a New York corporation which operates retail department stores at various locations throughout the United States. The store involved in this proceeding is A charge was filed on January 26, 1970 A complaint was issued on July 15, 1971 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Meier & Frank Eugene Store, located in the Valley River Shopping Center, Eugene, Oregon. During the year preceding the issuance of the complaint, a representative period, in the operation of its Eugene store, Respondent did a gross volume of business in excess of $500,000, and received goods valued in excess of $10,000 directly from points outside the State of Oregon or from suppliers who obtained the goods directly from outside the State of Oregon. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in commerce, and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Retail Clerks Union Local No. 201, affiliated with Retail Clerks International Association , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the complaint and answer, and litigated at the hearing, is whether Respondent engaged in conduct violative of the provisions of Section 8(a)(1) of the Act by promulgating, publishing, and enforcing a no-solicitation rule, on January 26, 1970, or, alternatively, by continuing in effect an identical rule, promulgated and published on August 4, 1969, and enforced thereafter, providing, inter alia: Solicitation by nonemployees of the Company is prohibited at all times in the Company's stores and service buildings. Respondent admits the promulgation and publication of the rule in question, but denies that such promulgation and publication constitutes an unfair labor practice. B. Stipulated Facts On August 4, 1969, a "weekly bulletin", identified as Vol. 2 No. 32, was issued by Respondent at its Eugene/Spring- field store. It was the first such weekly bulletin issued at that store and contained inter alia- 1. A special welcome to the new Eugene/Springfield employees.! -IV. - Solicitation Rule: Solicitation by employees of the Company is prohibited while any employee involved (either the person soliciting or the person being solicited) is on working time, and at all times in non-public areas of the store where noise or talking is not allowed. Solicitation by employees is also prohib- ited during all hours when the store is open, in selling and customers' service areas, in public areas adjacent thereto, and in waiting and rest z rooms used by the public. This Rule applies to all stores and service buildings and to solicitations for all purposes, including miscellaneous raffle schemes, lottery tickets, magazine clubs, labor organizations, societies, lodges, and the like. Solicitation by non-employees of the Company is ^J prohibited at all times in the Company's stores and service buildings. Remember, it is a violation of the Rule either to solicit or be solicited in a prohibited manner. Any violation of this rule should be reported at once to your immediate supervisor or the Personnel Office. We are herein concerned solely with the third paragraph. An identical rule was promulgated and published, in the weekly bulletin, issued on January 26, 1970.2 Respondent is in the business of a retail department store for the general sale of merchandise at retail, in a number of locations, including the Eugene, Oregon, installation involved herein. Eugene, Oregon, is a city of approximately 80,000 population. The store in question is located on the outskirts of the city, and on the outskirts of another small city, Springfield, Oregon.3 The store consists of two stories, with 80 departments. It is located in a` shopping center where there are approxi- mately 60 other retail establishments. Respondent is a tenant of the shopping center, the real estate being owned by a separate enterprise, which has no connection with the Respondent. This store and the other stores, in the shopping center, cater to the buying public, and access to the store is gained by the public, and by employees, by the use of a series of sidewalks, which are part of the shopping center. The store has a number of entrances, one of which is designated as an employee entrance. Company rules require that employees, when they are reporting for work initially, each day, and when they are leaving work, at the conclusion of their workday, that they use the employee entrance and no other entrance. A small number of customers, members of the public, also use the employee entrance, but the majority of individuals using the entrance are employees, not customers. Employees, at times, use other entrances than the employee entrance, such as when they are leaving to go to lunch or returning from lunch. If employees are carrying packages and leaving the premises they are required to use the employee entrance. Approximately 90 percent of the employees are residents of the Eugene/Springfield area. The combined area exceeds 100,000 population. The hours of work for employees are vaned, they work varying shifts, both part- time and full-time. The heavier traffic into and out of the employee entrance occurs in the ,morning between 9 and 10 a.m., at the changing of shifts, between 4 and 5:30 p.m., and when the store closes at 9:30 p.m. The latter applies five nights a week. On Saturday the I find of no consequence some changes in punctuation, and the 3 Rand-McNally reflects that Springfield had a population of approxi- separation of the last paragraph into two paragraphs, in the later mately 20,000 in 1961 publication MEIER & FRANK CO. store closes at 7 p.m. On Sunday it is open from noon until 5 p.m. The store features a number of restaurant facilities. One is an employee cafeteria which is open only to employees. There is also a series of restaurants, divided into a formal restaurant, a coffee shop, a liquor bar, and a snack bar, all of which are in the same part of the store. These facilities are open to the public and to the employees. The employees who staff these restaurants are employees of Respondent. They occupyjob classifications of chef, cook, culinary personnel in the kitchen, waitresses, waiters, busboys, and cashiers. There are also rest room facilities and toilet facilities utilized by employees, which are also open to the public. There is a room designated as a hospital, or first aid dispensary, with a nurse on duty, for the use of either customers or employees, who may become ill while the store is open. There are stock areas which are open to employees but not to the public. There are locker rooms where employees can change clothes or rest while off duty. These are not open to the public. The Charging Party inaugurated a union organization effort in early 1970, no such effort existed at the time of promulgation of the rule, in August 1969. During the course of the organizing effort, the Union passed out leaflets, or union literature, to employees, at the employee entrance on at least six occasions.4 There was no interference with the Union's program of passing out leaflets, which were distributed to individuals entering and leaving the store, on at least six occasions. One of the leaflets related to a union meeting which was held in Eugene. The leaflet distributors were at the employee entrance at times when the traffic was heaviest, in terms of employees arriving or leaving. No incident has arisen by reason of the existence of the rule. Accordingly, there has been no occasion for enforce- ment. Respondent asserted the rule is the precise language which became part of Meier & Frank personnel policy shortly after Meier & Frank and May Department Store Company merged in 1966. Respondent also asserted that May Department Store Company has had the same personnel policy for in excess of 15 years. Respondent acknowledged that the no-solicitation rule was promulgat- ed approximatley four times each year, and publicized through the medium of the weekly bulletin. C. Contentions of the Parties and Concluding Findings At the outset of the hearing, Respondent contended that since the Regional Director made a determination to dismiss the original charge, filed herein, that there was no charge to support the complaint which was issued. It is patent that the Act vests determination of the existence of probable cause, warranting the issuance of a complaint, in General Counsel.5 The action of a Regional Director, 4 While it is asserted that the sidewalks are private property, I attach no importance to that fact in the light of the decision of the Supreme Court in the Logan Valley case Amalgamated Food Employees Union v Logan Valley Plaza, 391 U S 308 5 Sec 3(d) provides, in part "He [General Counsel) shall have final 493 being subject to appeal, is at most, tentative and not necessarily final. I find no merit in this contention. Respondent, in its brief, urges that the subject of the complaint, its no-solicitation rule, is not sufficiently related to the charge filed herein to present a legal basis for this proceeding. Respondent urges that the typed portion of the charge, which was dismissed, sets forth alleged violations of Section 8(a)(3). It is patent that they are also allegedly derivative violations of Section 8(a)(1). In addition, the form, in printing, alleges, "By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act." In the Fant Milling cases the Supreme Court held: A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. N.L.R.B. v. I. & M. Electric Co., 318 U.S. 9, 18. The responsibility of making that inquiry, and of framing the issues ►n the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce, as this Court has recognized from the beginning. N.L.R B v. Jones & Laughlin, 301 U.S. 1. Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investiga- tory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge... . What has been said is not to imply that the Board is, in the words of the Court of Appeals, to be left "carte blanche to expand the charge as they might please, or to ignore it altogether." 258 F.2d at 856. Here we hold only that the Board is not precluded from "dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board " The Board has held the "charge is not a pleading, but merely serves to initiate an investigation to determine whether a complaint shall issue. Further, because Section 10(b) requires that a charge be filed before any complaint may issue, and the courts have consistently held that the Board may not initiate complaints on its own motion, it follows that some relationship is required between the charge and the allegations of the complaint. . . . However, apart from this limitation, the charge need not serve notice upon the Respondent of the particular conduct by which authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board 6 NLRB v Fan[ Milling Co, 360 U S 301, 307-308 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [it] is alleged to have violated the Act [Fns. omitted.]" Triboro Carting Corporation, 117 NLRB 775, 777-778.7 It is well established that the Board may base an unfair labor practice finding on any conduct which occurred within the 6-month period prior to the filing of a charge if the complaint issuing thereon alleges the conduct to be an unfair labor practice even though the charge itself does not specify such conduct as a violation of the Act. Stainless Steel Products, Incorporated, 157 NLRB 232, 234.8 I find, for the reasons set forth, no merit in this contention of Respondent. The contention of General Counsel is that a violation arises by reason of the following wording in the Company's no-solicitation rule: "Solicitation by non-employees of the Company is prohibited at all times in the Company's stores and service buildings." General Counsel asserts a general broad prohibition against all nonemployee solicitation in a department store with nonselling public areas which include restaurants, coffee shop and snack bar open to the general public and employees is unduly restrictive of the employees' Section 7 rights. Respondent asserts that the same rule was considered by the Board, and the Sixth Circuit, in May Department Stores Co. (Cleveland), 136 NLRB 797, enforcement denied 316 F.2d 797 (C.A. 6). Therein a no-solicitation rule contain- ing, inter alia: "A person who is not in the employ of the May Company is not permitted to solicit for any purpose inside the Company's store, buildings, or property" appears, at 798, in fn. 2. However, the Board's decision related the Union's solicitation in the selling areas of the store during employee's working and nonworking time. In addition, it appears that the Employer made preelection antiunion speeches to the employees in the selling areas, but refused the Union's request for an opportunity to reply on equal terms. The Board did not pass upon the portion of the rule related to the problem herein. This decision is inapplicable. Respondent also urges that a similar rule was considered by the Board in May Department Stores Co., d/b/a Famous- Barr Co., 174 NLRB No. 109. In that case, the Board held A ' 1. 1 1d H h R sense, are sales floors also, they are included within the nonselling areas. The Board disagreed with Respondent's general contention that prohibition of all solicitation in public restaurants is lawful. The Board said that while it is true that sales of merchandise, in this case food, are made to customers in the restaurants, the situation with regard to store restaurants is otherwise markedly different from that existing in the admittedly selling portions of the store. Customers patronizing the restaurants, for the most part, are placed at separate tables and are served by restaurant employees who are not, and who have not been, the subject of solicitation by the Charging Union. The comparative isolation of customers from each other, coupled with the fact that no solicitation is carried on among employees on duty in the restaurants, make remote the possibility of substantial interference with the Respondent's business by solicitation of off-duty employees. The Board found Respondent's rule regarding solicitation in public restau- rants lawful, by reason of the nature of the restrictions imposed, which the Board found are designed to insure that solicitation is carried on in the public restaurants only as an incident to the normal use of such facilities. Id. at 94. The Board found that Respondent's blanket prohibition on solicitation in public rest rooms and waiting rooms in the store was unlawful, as they clearly could not be considered selling space nor do they present problems peculiar to the aisles or other avenues of interior store traffic. The Board held: In the absence of any showing of harm or undue burden to the Respondent, and we find no such showing herein, the barrier thus erected by exclusion of nonemploy- ee organizers from the employee restaurants and cafeterias must be considered an unreasonable impediment to employees' self-organization, outweighing the property rights incident thereto. Id. at 98. The Board has found that a broad no-solicitation rule which prohibited union organizers from soliciting employ- ees in a restaurant, on Respondent's premises, was unlawfully broad and in violation of Section 8(a)(1) of the Act. Montgomery Ward & Co., 162 NLRB 369, 379. Accordingly, for the reasons stated, I find that a general broad prohibition against all nonemployee solicitation, in a at t espon ent s no-so (citation rue was va i . owever, department store with nonselling public areas , to the extent the Trial Examiner's Decision setting forth the provisions it applies to restaurants, coffee shop, or a snackbar which li i l i l d f i k citat on ru aine of the no-so e comp o conta ns aster s s for an omission of the contents of paragraph 2.9 There is no basis for finding that the Board considered the portion of the Rule which was omitted from the decision. Accordingly, this decision is inapplicable. In the Marshall Field case 10 the Board found that the retail department store was divided into three areas: (1) selling areas; (2) nonselling public areas; (3) nonselling closed areas. The Board at 89, fn. 3, found that while restaurants operated by the Respondent within the store premises are, in many cases, open to the public and, in a T Accord. Westinghouse Electric Corp, 188 NLRB No 126, fn 2, and cases cited 8 Respondent relies on the Board findings in Russell Newman Manufac- turing Co, 167 NLRB 1112; and Star Expansion Corp, 164 NLRB 563 These decisions merely contain additional explication 9 In what Respondent terms a "reply brier' Respondent seeks to submit, for consideration and inclusion in the record, what Respondent asserts is a copy of G.C Exh 10 in the St Louis case, which includes the provisions of par 2, which does relate to solicitation by nonemployees are open to the general public and employees not on duty, is unduly restrictive of the employees' Section 7 rights and violative of the provisions of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set, forth in section III, above, occurring in connection with the operations of the Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and it should be observed that Respondent was afforded an opportunity to enter this as evidence during the hearing I find it unnecessary to receive or consider the "reply brief " It is reasonable to infer that the provisions of par 2 of Respondent's no-solicitation rule, in that case, was not considered by either the Trial Examiner or the Board is Marshall Field & Company, 98 NLRB 88, enforcement denied in pertinent part 200 F 2d 375 (C A 7) With all due respect to the court, I am constrained to adhere to the Board's decision MEIER & FRANK CO commerce, among the several States and tend to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged, and is engaging, in certain unfair labor practices , I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices committed, the commission of like and related unfair labor practices reasonably may be anticipated . I shall therefore recommend that Respondent be ordered to cease and desist from, in any like or related manner , infringing upon rights guaranteed to its employees by Section 7 of the Act. CONCLUSIONS OF LAW 495 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Clerks Union Local No. 201 , affiliated with Retail Clerks International Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in conduct constituting Interference, Restraint and Coercion, to the extent herein found, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]