Lee Wards

LEE WARDS Dexter Thread Mills, Inc., d/b/a Lee Wards and Retail Clerks Union, Local 98 Retail Clerks International Association, AFL-CIO. Case 13-CA-10236 October 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge I and amended charge 2 duly filed by Retail Clerks Union, Local 98 Retail Clerks Inter- national Association, AFL-CIO (herein called the Union), against Dexter Thread Mills, Inc., d/b/a Lee Wards (herein called Respondent), the General Coun- sel of the National Labor Relations Board, by its Regional Director for Region 13, on May 28, 1971, issued and served on the parties a complaint alleging violations of the National Labor Relations Act, as amended. In substance, the complaint alleges that Re- spondent violated Section 8(a)(1) of the Act by refus- ing to allow nonemployee union organizers to distribute literature on the parking lot of Respondent's Elgin, Illinois, property. Respondent's answer admits certain factual alle- gations of the complaint but denies the commission of unfair labor practices. Thereafter, on November 18, 1971, the parties entered into a Motion To Transfer Proceeding to the National Labor Relations Board and Stipulation of Facts wherein they agreed that certain documents shall constitute the entire record herein ,3 expressly waived all intermediate proceedings before a Trial Examiner, and submitted this case directly to the Board for its decision and order, reserving to them- selves only the right to file briefs . By order dated December 9, 1971, the Board granted the motion, approved the stipulation, transferred the proceeding to itself, and set a date for the filing of briefs. There- after, briefs were filed by all parties. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the entire record here- in and the briefs, and makes the following: 1 The original charge was filed on November 24, 1970, and served on Respondent on November 25, 1970. 2 The amended charge was filed and served on Respondent on December 22, 1970. 3 The stipulated record consists of the charges, complaint , Respondent's answer, and the stipulation of facts with attached exhibits FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT 543 Respondent, a Delaware corporation, is engaged in the manufacture and retail sale of hobby craft prod- ucts and other related goods and merchandise at its Elgin, Illinois, facility. During the past calendar year Respondent, in the course and conduct of its opera- tions, had a gross volume of business in excess of $500,000. During the same period, Respondent pur- chased and had delivered to its Elgin, Illinois, facility, goods and materials valued in excess of $50,000 di- rectly from suppliers located outside the State of Illi- nois. The complaint alleges, Respondent's answer admits, and we find that Respondent is, and at all times material has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer ad- mits, and we find that the Union is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts Respondent's property consists of a large parking lot in front of its building which contains a retail store, a distribution center, and a manufacturing section. The only access to this property is by means of a four-lane public highway with a speed limit of 40 m.p.h. which runs adjacent to the parking lot. There are no fences or other similar barriers between the highway and the parking lot, but there is a 10-foot wide, grassy tree-filled public easement separating the lot from the highway by means of a curb. The parking lot is reached from the highway by three entrances. During November and December 1970 4 Re- spondent employed between 350 and 450 employees. Five of these employees worked a 7:30 p.m. to 3:30 a.m. shift, 208 employees worked a 7:30 a.m. to 4 p.m. shift, 96 employees worked a 9 a.m. to 5:30 p.m. shift, and 48 employees worked a 12:30 p.m. to 9 p.m. shift. All of these employees come to work in private auto- mobiles and 60 percent of them live in Elgin, Illinois. The remainder reside in surrounding communities. Respondent's retail store is usually open to the general public from 9 a.m. to 5:30 p.m. although it is open until 9 p.m. on each Wednesday throughout the 4 All dates hereafter are 1970 unless otherwise indicated. 199 NLRB No. 113 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year and every day during the Christmas season (No- vember 3 to December 1). Respondent's customers and employees can park anywhere on the lot and there are no special markings on the automobiles of Respondent's employees to distinguish them from those belonging to the customers. On November 12, an employee of Respondent informed the Union that Respondent's employees were interested in obtaining union representation. The next day Colaizzi, business agent for the Union, and Russo, the Union's secretary-treasurer, entered Respondent's retail store to acquaint themselves with the physical layout. They remained for one-half hour during which time they attempted to make a list of Respondent's employees by copying down names from the tags worn by the employees. Thereafter, Co- laizzi and Russo went to the parking lot and copied automobile license numbers for the purpose of ob- taining more employee names and addresses. Later during the day, Colaizzi and Russo met with five of Respondent's employees, obtained signed union au- thorization cards, and asked these employees to ob- tain as many cards as possible from their fellow employees. On the afternoon of November 18, Colaizzi, Rus- so, and two other union organizers stood on the park- ing lot in front of the employee entrance to Respondent's building and distributed approximately 200 handbills and authorization cards. While they were engaging in this activity, the union organizers were approached by Slade, Respondent's controller, who stated that they were on private property and asked that they leave. Slade was told by the union organizers that they had a right to be on Respondent's property and Slade replied that he would check into the matter. On November 19, the union organizers returned to the parking lot and distributed approximately 100 handbills and authorization cards. The following day, the union organizers were again distributing literature on the parking lot when they were informed by Respondent's officials that they were trespassing. When the organizers refused to leave, Respondent called the police. After the police arrived the union organizers left the parking lot. Thereafter, on two occasions, the union organiz- ers stood on the public easement between the parking lot and the highway and attempted to distribute litera- ture to employees as they entered and left the lot in their automobiles. The Union discontinued these ef- forts because (1) very few automobiles stopped to receive literature, (2) it was difficult to distinguish the automobiles belonging to employees from those be- longing to customers, (3) traffic was halted when the entrances were thus blocked, and (4) there was a risk of physical injury from this activity. After being denied access to the parking lot, the Union attempted to use other means to reach Respondent's employees. Thus, the Union, using a list of employee names and addresses obtained by check- ing automobile license numbers and by its organiza- tional activity on the parking lot, mailed literature to employees. Forty percent of the literature sent by mail was returned because of incorrect addresses. House calls likewise proved ineffective inasmuch as only 14 percent of the employees on the list were found at home on the first visit and 65 percent of the remaining employees on the list were not found at home after two or three visits. Moreover, between November 30 and December 30, the Union made over 300 phone calls in an attempt to verify addresses and to set up meetings. Those employees reached by telephone stat- ed that they were reluctant to meet with the Union either in their own homes or in any other location. Eighty percent of the authorization cards in the Union's possession were obtained from the organiza- tional activity on the parking lot, 15 percent of the cards were obtained as a result of Respondent's em- ployees contacting their fellow employees, and the remainder were obtained through house calls and the Union's mailing efforts. B. Contentions of the Parties In their briefs, the General Counsel and the Union make a two-pronged argument. First, they rely on the Board's decisions in Solo Cup 5 and Central Hard- ware 6 and contend that, just as in those cases, in the instant matter the Board should rely on the Supreme Court's decision in Logan Valley Plaza? and find that Respondent, by denying the union organizers access to its "quasi-public" property, violated Section 8(a)(1) of the Act. Secondly, General Counsel and the Union con- tend that the Union had no reasonable alternate channels of communication with Respondent's em- ployees other than its parking lot. Thus, they rely on the Supreme Court's decision in Babcock & Wilcox 8 in arguing that Respondent's actions violated Section 8(a)(1) under the principles outlined in that case. Respondent, on the other hand, contends that the facts in the instant case are distinguishable from those in Central Hardware and Logan Valley Plaza. Respondent argues that the Board should be guided by Babcock & Wilcox in evaluating the circumstances of this case and that, in applying those tenets, the S Solo Cup Company, Calumet Industrial District Company, 172 NLRB No. 110, enforcement dented 442 F.2d 1149 (CA. 7, 1970). 6 Central Hardware Company, 181 NLRB 491. 7 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308. 8NL.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105. LEE WARDS 545 Board should find that Respondent did not violate the Act. C. Discussion and Conclusions The first contention which the General Counsel and the Union advance in their briefs is now moot in light of the recent reversal of the Board's decision in Central Hardware by the Supreme Court.' There, the Court stated that the large commercial shopping cen- ter in Logan Valley Plaza had replaced the functions of the normal municipal "business block" to which, under the principle of Marsh v. State of Alabama,10 the 1st and 14th amendment free-speech rights extended. The Court held, however, that in Central Hardware single-store situations the privately owned property did not "assume to some significant degree the func- tional attributes of public property devoted to public use." Thus, the Court held that Logan Valley Plaza did not apply to single-store cases and remanded the case to the Eighth Circuit for consideration in the light of Babcock & Wilcox. Inasmuch as Respondent's establishment is in all significant respects identical to that of the employer in Central Hardware, we shall evaluate the alleged unfair labor practices in this case only under the General Counsel's and the Union's alternate theory. As the Supreme Court stated in Babcock & Wil- cox and reaffirmed in Central Hardware, Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation be- tween the two must by obtained with as little destruction of one as is consistent with the main- tenance of the other. The employer may not af- firmatively interfere with organization; the union may not always insist that the employer aid or- ganization. But when the inaccessibility of employ- ees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from proper- ty has been required to yield to the extent needed to permit communication of information on the right to organize. [Emphasis supplied.]" The Board reiterated its interpretation of the Babcock & Wilcox principles in the recent case of Monogram Models, Inc.12 There, as here, the conten- tion was made that refusing to allow nonemployee union organizers on the parking lot was unlawful be- cause such refusal placed the employees beyond the reach of reasonable efforts on the part of the union to communicate with them. In Monogram, as here, com- 9 Central Hardware Co v. NLRB, 407 U.S. 539 (June 22, 1972). 10 326 U.S. 501. 11 351 U.S. at 112. 12 192 NLRB No. 99. munication with employees at the entrances to the employer's property was alleged to be ineffective be- cause the traffic on the road running adjacent to the plant made contact between the union and the em- ployees at that location unsafe and impractical. Not- withstanding these considerations and in spite of the fact that the plant's location presented some other obstacles to easy contact with the employees, the ma- jority of the Board held that the employer in Mono- gram Models did not violate the Act. The Board majority said that the test established by Babcock & Wilcox was not one of relative convenience, but rather whether the location of the plant and the residences of the employees placed them beyond the reach of reasonable union efforts to come into contact with them. Here, as in Monogram Models, Respondent's place of business is located in a large metropolitan area. However, 60 percent of Respondent's employees live in the city of Elgin. The stipulation of facts shows that the Union met with little success when it attempt- ed to contact at home those employees on its incom- plete list. This may be explained, in part, by the fact that the Union was making these efforts during a holiday season when the employees may have been engaging in personal business outside their homes. Moreover, the fact that those employees the Union managed to reach were reluctant to meet with it, standing alone, may signify nothing more than disin- terest on their part. The stipulation of facts also shows, however, that the Union did have an alternate means of obtaining employees' names and addresses. Thus, during the initial stages of the Union's organizational campaign, it copied the license numbers of several automobiles on the lot. No reason appears in the record why the Union could not have utilized this method to a greater extent. More than three-quarters of Respondent's em- ployees come to work at Respondent's establishment well before the 9 a.m. opening time of the retail store. Consequently, it can be assumed that the only auto- mobiles going into Respondent's parking lot prior to 9 a.m. would belong to employees. Thus, it would have been relatively easy and safe for the union or- ganizers to stand on the public easement between the lot and the highway and copy the license numbers of the cars entering the lot. From this, and through a greater utilization of sympathetic employees, the Un- ion could have obtained a fairly complete list of em- ployees for direct home contact or for distribution of literature through the mails. In short, we are not persuaded that there did not exist in this case reasonable, albeit perhaps more ex- pensive and less convenient, means of reaching em- ployees and thus Respondent did not violate Section 8(a)(1) of the Act by refusing the union organizers free 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD access to its parking lot. Accordingly, we shall dismiss the complaint. CONCLUSIONS OF LAW 1. Dexter Thread Mills, Inc., d/b/a Lee Wards, is, and at all times material has been, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 98 Retail Clerks International Association, AFL-CIO, is and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to allow nonemployee union or- ganizers to distribute literature on the parking lot of its Elgin, Illinois, property, Respondent did not vio- late Section 8(a)(1) of the Act. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed.