Montgomery Ward & Company, Inc.

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Company, Inc. and Warehouse Mailorder, Office Technical, and Professional Employees, Local No. 743, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 13-CA-17109 June 22, 1981 DECISION AND ORDER On January 25, 1980, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge, as modified herein. 1. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) by discriminatorily maintaining and enforcing its no- solicitation rule' against nonemployee organizers in its Buffeteria, a public cafeteria, located in a section of Respondent's department store. However,she did not rule on the contentions raised by the Gen- eral Counsel and the Union that even a nondiscri- minatory no-solicitation rule may be unlawful if ap- plied in a manner to prohibit nonemployee union organizers from meeting with off-duty employees in a department store restaurant, so long as they conduct themselves in a manner consistent with the purpose of the restaurant. The Administrative Law Judge declined to make this determination, finding it to be a theoretical question only, in view of the impracticality of enforcing such a limitation in a cafeteria where the public is invited to eat, and where all sorts of social conversations ensue, in- cluding nonunion solicitation. The General Counsel excepts, contending that the question is not theo- retical, and should be decided because of the statu- tory right involved. We agree with the General Counsel. Respondent's Buffeteria is a cafeteria type restau- rant housed within its retail facility, which is locat- ed within an enclosed shopping mall that contains four department stores and several smaller stores. Buffeteria customers sit at movable tables, each seating two people and ordinarily placed together in groups of two to four tables. There is no counter at which customers sit, and there are aisles between the tables of 3 to 3-1/2 feet. Respondent's employ- i The pertinent section of the rule. schich the parties stipulated '*as in effect at all relevant times, is: "Solicitation by non-employces of the Company is prohibited at all times in the store and store operated build- ings." 256 NLRB No. 134 ees, from whom the restaurant derives about 10 to 20 percent of its sales, pay full price for their food and are treated the same as members of the public. The Administrative Law Judge found that the Buf- feteria is the dining facility that enables the credit center employees interested in union organization to spend the most time discussing the Union during their 30-minute lunch breaks. This is based upon the distance to their dining facilities in the mall, the crowds in the mall and at other facilities, and the time saved by the cafeteria format. In Marshall Field & Company,2 the Board held that public restaurants in a retail store are consid- ered nonselling, public areas, rejecting Respond- ent's contention that it could lawfully prohibit so- licitation in its public restaurants because such ac- tivity would disrupt its business. The Board's rationale was: 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 charg- ing Union. The comparative isolation of cus- tomers from each other, coupled with the fact that no-solicitation is carried on among em- ployees on duty in the restaurants, make remote the possibility of substantial interfer- ence with the Respondent's business by solici- tation of off-duty employees. 3 The Board there found Respondent's existing rule lawful because it allowed outside organizers to meet by appointment with off-duty employees in the restaurants, provided the organizers did not move from table to table and conduct themselves discreetly. As such the restrictions imposed were lawful and suitable to the particular situation, de- signed as they were to insure that solicitation was carried on only as an incident to the normal use of such facilities. We find the situation in this case similar to that in Marshall Field. Union Organizers Polk and Garcia met with sev- eral credit center employees at another restaurant a few days before the Buffeteria incident occurred. At that meeting they arranged to meet three em- ployees in the Buffeteria at noon, during the em- ployees' lunch break, and to meet other employees 9 Nl.RB 88 (1952). mlodified on ther ground. and cnfd 2(X) F 2d 375 (7th ir 1q52) : /id at 94 MONTGOMERY WARD & COMPANY, INC. 801 at 12:30, the beginning of their lunch break. When Personnel Manager Harvey and Operating Man- ager Ruhl approached the table at which Polk and Garcia were sitting, they were chatting with the first group of employees with whom they had an appointment. The organizers did not move from table to table, try to distribute literature, speak to employees who were not offduty, or in any other way create a disturbance. They did not attempt to solicit Buffeteria employees. 4 We conclude, there- fore, that they were attempting to use the cafeteria in a manner consistent with its purpose. In Montgomery Ward & Co., Incorporated,5 the Board found a similar, but unwritten, no-solicita- tion rule which was an absolute prohibition against outsiders in public sales areas, including the restau- rant, to be unlawfully broad. 6 There, the Board struck down the rule itself, because it had been un- lawfully promulgated. The written rule in the cur- rent Montgomery Ward case appears identical in scope to Respondent's unwritten rule in effect in 1964 at its Rome, New York, stores. One of the issues in the earlier case concerned an incident in a store restaurant and involved an employee who had punched out at 6 p.m. and was having coffee with the recording secretary of the Union. The two were told by a supervisor that they were "not permitted to discuss the Union on company proper- ty at all and they would have to leave if they were going to discuss it further." Then Trial Examiner Downing concluded that the two men "were as much entitled to patronize the restaurant as any other members of the general public." He found that "Respondent orally announced and promulgat- ed an unlawfully broad no-solicitation rule which prohibited all union solicitation on Respondent's premises, in violation of Section 8(a)(1)." (162 NLRB at 379.) The Board adopted that decision without comment on this issue. We conclude that the written rule in the current case is likewise an unlawfully broad no-solicitation rule, prohibiting all union solicitation on Respond- ent's store premises. Respondent in its brief consist- ently refers to what it considers the appropriate rule for "selling areas" and avoids the distinction recognized by the Board in the 1966 Montgomery 4 The Administrative Law Judge found, and we agree, that the Union had no desire to organize any of Respondent's retail or other employees not employed in the credit center, nor did its representatives speak to or attempt to speak to any of the Buffeteria employees. 5 162 NLRB 369 (1966) o See also Oertle Management Company. Inc and IFO # Inc . 182 NLRB 722 (1970). in which the Board reiterated its position in Montgonm- ery Ward, supra, disavowing the Trial Examiner's iev that the ernploG er, an operator of a department store, could lass full) prohibit solicitation by outsiders in its public cafeteria. It adopted the Trial Examiner's con- elusion that the Employer's surveillance was not unlawful only because the evidence did not support a finding that it was for a purpose other than enforcing its rule as to cafeteria employees then worlking Ward case, to wit, that prohibiting all union solici- tation on department store premises, including a store's public restaurants, constitutes an impermissi- bly broad rule, in violation of Section 8(a)(1) of the Act. Respondent urges the applicability of N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1956), with its requirement-in the context of a manufacturing plant facility to which the public is not invited-that access to an employer's plant premises may be denied organizers unless they can demonstrate significant difficulty in reaching the employee complement with their message. On this issue the General Counsel has anticipated that Re- spondent, in its brief, might urge the applicability of May Department Store Company d/b/a Meier & Frank Co., 198 NLRB 491 (1972), wherein the Board applied the Supreme Court's language in Babcock to the effect that the Act does not require that an employer permit the use of its facilities for organization when other means are readily availa- ble. That, however, was a case where the Board noted the lack of contention that the no-solicitation rule discriminated against the Charging Party, as well as the fact that the Employer had permitted the distribution of leaflets by the Union on numer- ous occasions at the employee entrance. We find merit in the contention of the General Counsel that the Babcock & Wilcox rationale typically controls in situations where union organizers use "private" property to which the public is not invited in a manner inconsistent with the property's intended purpose, rather than use of a public restaurant for personal discussion while dining.7 2. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) by engaging in surveillance of Union representatives Polk and Garcia while they were soliciting in the Buffeteria. As she relied upon W. T. Grant Company,8 we in- terpret her finding, consistent with that decision, as involving surveillance of employee and union orga- nizer actions and association having a tendency to inhibit employee interest and participation in union- ization. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and from any like or re- 7 In its brief the General Counsel also refers to Read'i Inc., 205 NLRH 302, 310 311 (1973), invollving a posted rule against nonemployee "solici- tation oir trespass for any purpose inside this store, its building, or on its property " The Hoard's agreement with the Administrative I.av Judge that the case involved a alid rule applied n an insalid manner" result- ed fronm Ihe particular circumstances to wit, n contentlon unlike this case-thai the rule as posted .as invalid " 19 NlRH I((tX. I(X)i (1972) 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated conduct, and that it take certain affirmative action, set forth in the Order below, which is de- signed to effectuate the purposes and policies of the Act. AMENDED CONCIUSIONS OF LAW In Conclusion of Law 3 insert the following as paragraphs a, b, c, and d: "a. Maintaining and enforcing a rule against non- employee solicitation in the store that prohibits so- licitation of off-duty employees in the Buffeteria. "b. Maintaining and enforcing in its Buffeteria a rule against solicitation of off-duty employees by nonemployee union representatives with a purpose to discriminate against solicitation for unions as dis- tinguished from solicitation for other organizations or projects. "c. Engaging in surveillance of off-duty employ- ees and nonemployee union representatives in the Buffeteria while soliciting the employees in the aforesaid manner concerning union membership. "d. Threatening to call the police and have non- employee union representatives removed from the Buffeteria if they refused to leave voluntarily, and summoning the police for that purpose." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Montgomery Ward & Company, Inc., Lombard, Il- linois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing its rule against nonemployee solicitation in its department store that prohibits solicitation of off-duty employee in the Buffeteria by nonemployee union organizers who conduct themselves consistently with the pur- poses of the cafeteria. (b) Maintaining and enforcing in its Buffeteria a rule against solicitation of off-duty employees by nonemployee union representatives with a purpose to discriminate against solicitation for unions as dis- tinguished from solicitation for other organizations or projects. (c) Engaging in surveillance of employees and nonemployee union organizers who solicit in a per- missible manner as described in paragraph l(a) of this Order. (d) Attempting to prevent nonemployee union organizers from soliciting off-duty employees in the Buffeteria by threatening to call the police and have nonemployees removed if they refuse to leave voluntarily, and by summoning police to arrest such organizers. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Post at its Lombard, Illinois, operation copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 9 In the event that this 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 Boars" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT maintain a rule against non- employee solicitation in the store that prohibits solicitation of off-duty employees in the Buffe- teria by Warehouse, Mailorder, Technical and Professional Employees, Local 743, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of America, or any other union, by nonem- ployee union organizers who conduct them- selves consistently with the purposes of the cafeteria. WE WILL NOT maintain and enforce in the Buffeteria a rule against solicitation of off-duty employees by nonemployee union representa- tives with a purpose to discriminate against so- MONTGOMERY WARD & COMPANY, INC. 803 licitation for unions as distinguished from so- licitation for other organizations or projects. WE WILL NOT engage in surveillance of em- ployees and nonemployee union organizers who solicit in a permissible manner in the Buf- feteria. WE WILL NOT, for the purpose of pre- venting such solicitation, threaten to call the police and have nonemployees removed if they refuse to leave voluntarily, or summon the police for that purpose. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by the Act. MONTGOMERY WARD & COMPANY, INC. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This case was heard in Chicago, Illinois, on July 31, 1978, through August 2, 1978, pursuant to a charge filed on December 7, 1977, and amended on December 22, 1977, and a complaint issued on April 13, 1978. The question presented is whether Respondent Montgomery Ward & Company, Inc., which operates a department store in a shopping mall, violated Section 8(a)(l) of the National Labor Relations Act, as amended (the Act) by maintain- ing an overly broad no-solicitation rule; demanding that agents of the Warehouse, Mailorder, Office, Technical, and Professional Employees, Local 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), re- frain from soliciting Respondent's employees and leave Respondent's property or be arrested; threatening, in the presence of Respondent's employees, to cause the arrest of such union agents, and summoning police for such purpose, in order to prevent such solicitation; engaging in surveillance of union agents while they were soliciting employees in Respondent's public cafeteria during their nonworking time; and thereafter refusing to allow union agents to engage in such solicitation. Upon the entire record, including my observation of the witnesses, and after due consideration of the excel- lent briefs filed by Respondent, the Union, and counsel for the General Counsel, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Respondent is an Illinois corporation which sells mer- chandise at retail in Lombard, Illinois. During the calen- dar and/or fiscal year preceding the issuance of the com- plaint, a representative period, Respondent's gross rev- enues exceeded $500,000 and its Lombard facility re- ceived goods and materials valued in excess of $50,000 directly from points outside Illinois. I find that, as Re- spondent concedes, Respondent is engaged in commerce within the meaning of the Act, and that assertion of ju- risdiction over its operations will effectuate the polices of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Physical Setting The Yorktown Shopping Center is located on a dia- mond-shaped lot at the intersection of Highland Avenue on the west, and Butterfield Road on the southeast, in Lombard, Illinois. There are no sidewalks on either side of either Highland Avenue or Butterfield Road. On the southeast side of Butterfield Road opposite the shopping center is an expressway; on the west side of Highland Avenue opposite the shopping center is a builders' devel- opment and a cemetery. Strips of public land, separated from the shopping center by a chain-link fence, bound the east side of Highland Avenue and the northwest side of Butterfield Road. These strips are 15 to 20 feet wide, are covered with grass, and are sloped for drainage pur- poses.' Highland Avenue and Butterfield Road are both four-lane highways, with speed limits of 30 miles per hour, and 50 miles per hour, respectively. Ward's employee Kabat, who at the time of the hear- ing had worked in Respondent's store in the Yorktown Shopping Center for at least 8 months, credibly testified that she had never seen any pedestrian walking along the grassy strips separating the shopping center from High- land Avenue and Butterfield Road, had never seen anyone selling anything in such strips, and could not recall seeing anyone selling anything on the other side of either road. Ward's employee Janet Piscule, who at the time of the hearing had worked at Respondent's York- town store for at least 8 months, credibly testified that she had never noticed any pedestrians crossing either road. There is no evidence that any pedestrians ever crossed either road in the general area of the shopping center, that any pedestrians ever walked along the grassy strips in that area, or that anyone ever sold anything on either side of either road in that area. Both Kabat and Piscule credibly testified to the belief that it would be unsafe to walk in the grassy strips. No witness testified to a contrary opinion. Two entrances lead into the shopping center, one from Butterfield Road and one from Highland Avenue. Both of these entrances have traffic lights which control the flow of traffic entering and leaving parking lots adjacent to Ward's facility in the Yorktown mall. Traffic entering at either of these entrances is routed to a 40-foot wide access road on the interior of the center's parking lots. Most of the retail facilities in the Yorktown Shopping Center are within a completely enclosed, two-level shop- ping mall which contains 4 full-line department stores (including Ward's) and about 100 specialty stores. The My finding as to the Highland Avenue slope is based on the testimo- ny of employees Geraldine Kabat and Judith Leatherman. I credit them over the credit operating center manager, Douglas Ruhl for demeanor reasons and because Kabat had better reason than Ruhl to notice the slope 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enclosed mall is completely surrounded by parking lots. Ward's facility is a two-story rectangular building at one end of the mall, in the portion nearest to the intersection of Highland Avenue and Butterfield Road. Ward's owns the land on which its store is located and also most of the parking lot area between the chain-link fence and the southwest and southeast sides of its store. These parking areas are separated from the store by sidewalks on Ward's property. An ordinary visitor to the mall has no way of knowing whether he has parked in a parking area owned by Ward's.2 The Ward-owned land totals about 17 acres. The instant case centers around incidents in Ward's "Buffeteria." The Buffeteria is a cafeteria-type restaurant which sells only food and beverages and is located on the second floor of Ward's facility. Customers can enter the Buffeteria directly from the mall or directly from the parking lot area owned by Ward's, but cannot enter the Buffeteria from Ward's retail store area owing to stan- chions placed by Ward's to prevent such traffic. The Buffeteria opens for breakfast during the week about an hour and 10 minutes before Ward's retail store is open for business, and closes about an hour and a half before Ward's retail store is closed.3 The Buffeteria has a de- partment manager and employs 10 to 14 employees, none of whom is a waiter or waitress. Its total floor area is about 3,875 square feet. It has a carpeted floor, and con- tains a number of tables which seat two people, are ordi- narily placed together in groups of two to four, but can be readily moved. The aisles between these groups of tables are 3 or 3-1/2 feet wide. There is no counter where customers can sit and eat. The total seating capac- ity is 170. The Yorktown Buffeteria, and all similar store Buffe- terias nationwide, are operated by Ward's food service department, whose nationwide 1977 sales exceeded $33 million, with profits exceeding $2 million. In 1977, food sales in the Yorktown Buffeteria amounted to almost $170,000, with net profits exceeding $45,000. On Friday, December 2, 1977, the date of the incident at issue in the instant case, Yorktown Buffeteria sales totaled about $650. At the Yorktown Buffeteria, Ward's periodically installs displays of merchandise for sale in the store. Also, Ward's automotive center issues coupons for free coffee at the Buffeteria to customers who are waiting for their cars to be serviced. The Buffeteria is open to the public during all its oper- ating hours. Ten to twenty percent of sales in the Lom- bard Buffeteria are generated by Ward's own employees. With respect to Buffeteria use, such employees are treat- ed the same as members of the public. Employees pay the same prices as other customers, although most Ward's departments give a discount to Ward's employ- ees. Except during the Christmas shopping season, the only eating room in Ward's Yorktown facility available 2 Ward's brief asserts that the rest of the mall parking lot is divided into sections which, although not visibly separated, are individually owned by the remaining three major "tenants" of the mall. 3 Ward's first began to operate its Yorktown Buffeteria before the rest of the Yorktown mall had been completed, and before Ward's retail store had begun operations. Ward's opened the Buffeteria operation at this early date in order to obtain trade from the construction workers who were constructing the mall. to Ward's employees is the Buffeteria, so far as the record shows. Except for a "canteen" area which con- tains coin-operated food-dispensing machines, the Buffe- teria is, so far as the record shows, the only place in Ward's Yorktown facility where ready-to-eat food can be purchased. 4 In addition to space set aside for retail sales, the lower level of Respondent's Yorktown facility houses offices for a credit center. The credit center consists of two credit service centers, each of which employed about 100 employees as of August 1978, and a credit operating center, which as of August 1978 employed about 80 em- ployees.5 The credit operating center handles accounts receivable for 100 to 150 different facilities operated by Respondent. The two credit service centers are responsi- ble for handling individual customer accounts. 6 Custom- ers are directed by signs to the areas where their ac- counts can be discussed with Ward's representatives in the credit service centers. Credit center employees can and usually do use two unlabeled outside entrances, opening onto the sidewalks owned by Ward's, to enter and leave the credit center without going through the retail facility. The credit op- erating center is totally walled off from the retail facility. The area which houses the credit operating center and one of the two credit service centers can be entered from the lower level of the retail facility, but with the inferen- tial exception of the customer conference area; access re- quires going through two sets of doors, which are usual- ly if not always closed and are marked "Authorized Per- sonnel Only." 7 There is no specific record evidence about access to the other credit service center. Inferen- tially, the portion of that credit service center which is not used for conferences with customers can be reached from the retail facility by means of entrances which indi- cate, by signs or otherwise, that the public is supposed to stay out. B. The Union's Organizing Efforts, the Events of December 1977 In early November 1977, 8 an unidentified employee in Ward's credit operating facility telephoned the Union to obtain information about union organization. A few days later, Regina Polk, who is employed by the Union as an organizer, began an organizational campaign at the facili- ty. Polk credibly testified that Local 743 does not orga- nize retail employees, and that it had no desire to orga- 4 On weekends during the Christmas shopping season, Ward's opens a room here employees can eat "hbrown bag" lunches. There is no evi- dence that food can he purchased there Retail employees are requested. but not required. to eat there rather than in the Buffeteria. No such re- quests are made to credit center employees, the group involved here A custlomer serice center where customers pay their bills is not part of the credit center. " Which center serves a particular account depends on the customer's address. 7 Employee L.eatherman, who worked in the credit operating center from September 1975 until December 1977, credibly testified that she had never seen any customers in the area. On an undisclosed date during this period, Nancy Kelly. whom Leatherman identified as a supersisor, told her nobody except employees was allowed in the part off the building behind the closed door. 8 All dates hereafter are 1977 unless otherwise stated MONTGOMERY WARD & COMPANY. INC. 805 nize such employees or any other employees not em- ployed in the credit center. By letter dated November 22 to Leonard Hunlock, manager of Respondent's credit op- erating center, the Union stated that its Office Employ- ees' Division was conducting an organizing drive among Respondent's "Credit Operating Center" employees. About November 28 or 29, Polk and Union Organizer John Garcia met with several credit center employees after work in a restaurant, the Golden Bear, on the pe- rimeter of the mall area. During this meeting, the em- ployees asked Polk and Garcia if thcy could make them- selves available for some conversation during a lunch period. Then, Polk and Garcia arranged to meet credit center employees Leatherman, Kabat, and Rosaline Sim- mons in the Buffeteria on December 2 at noon, the be- ginning of these employees' half-hour lunch break. The union organizers also arranged to meet other credit center employees in the Buffeteria at 12:30 p.m., the be- ginning of their half-hour lunch break. On the morning of December 2 Polk and Garcia sta- tioned themselves on the Ward-owned sidewalk outside Ward's store and started to distribute union literature. The credit group personnel manager, Reed Harvey, saw them engaging in this activity, testified to having heard "through the grapevine" that they were coming to the cafeteria that lunch hour, and testified that he decided to eat lunch at the Buffeteria that day because he was ex- pecting them.9 Douglas Ruhl, who is operating manager of the credit operating center, testified that he and Harvey arranged early that morning to have lunch to- gether, and that this was a normal social date. At or about noon on December 2, Polk and Garcia en- tered the Buffeteria. When they entered, they saw that employees Leatherman, Kabat, and Simmons had already been through the cafeteria line and were eating at two tables close together. The employees waved them over, and the union organizers went directly to an adjacent table and sat down. At this time, the cafeteria was about half full, and the other Buffeteria patrons seated nearest to the organizer-employee group were about 15 feet away. The employees told the union organizers that two members of management were there, and pointed out Harvey and Ruhl, who had ordered their food and were waiting for it in the cafeteria line. After joining the employees, the union organizers chatted briefly with them. Simmons asked for a union card; Polk went through her purse and then said, "... this is really embarrassing, but I don't seem to have one." Then, Leatherman gave a card to Simmons. Harvey testified that he saw the group talking, but that he was about 10 feet away from them and could not overhear their conversation. He further testified that he approached them immediately because, that morning, he had seen these same two organizers standing on "my" sidewalk and passing out union literature. Upon reaching the organizer-employee group, Ruhl and Harvey said that they would like to talk to the person in charge. Polk said that she would be glad to talk to them away from the employees and outside of the 9 However, he had eaten there on many previous occasions, and testi- fied that it was possible he would have eaten there that day even if he had not expected the organizers perimeter of the cafeteria. IO Harvey, Ruhl, and the two organizers then left the cafeteria and went into an aisle in the retail store area, at a point near the cafeteria and within eyeshot, although not earshot, of the employees left at the table. The four exchanged their respective names and capacities. Harvey said that the organizers' being there soliciting was contrary to company policy. Harvey also said that Polk and Garcia were trespassing; that he would not permit them to talk to employees about the Union or to distribute literature in the cafete- ria; that he was requesting Polk and Garcia to leave; and that, if they did not leave, he would call the police and have them removed. Polk said that she had no intention of leaving, that this was a public cafeteria and she was certainly part of the public, that the employees with whom she was meeting were on their own time, that they were punched out, and that they had a right to do what they wanted, including engaging in any union ac- tivity. It Harvey responded that, if Polk and Garcia did not leave, he would call the police. Polk said that she felt strongly that he was violating the employees' rights and that he had better be very sure of what he was doing. She suggested that, before doing anything, he had better call Company Vice President Schiedt, who is head of Ward's labor relations. Harvey said that he had al- ready done that, and that it was at Schiedt's direct direc- tion that Polk and Garcia should be removed by the police if necessary. Polk said, "So be it" and to do what he had to do. During this conversation, Harvey did not ask why Polk and Garcia were in the Buffeteria.' 2 Nor did Polk indicate that she had arranged in advance to meet with certain employees that day; however, Ruhl and Harvey had seen the organizers from the time they entered the Buffeteria and, as previously noted, the seated employees had waved them over to their table. At the end of this conversation, Harvey and Ruhl can- celed their food orders. Harvey went to telephone the local police from a company telephone in the Buffeteria, and Polk and Garcia returned to the tables where the employees were sitting. The employees asked what the conversation had been. Polk said that she and Garcia were likely going to have problems meeting the employ- ees in the cafeteria, would have to make other arrange- '0 My finding that this suggestion proceeded from Polk is based on her testimony, partly corroborated by Kabat. Polk testified that she made this proposal because she did not know the purpose of the conversation and thought that its tone might not be friendly, that being confronted by top management personnel when sitting with a union representative is a trau- matic and intimidating experience for an employee, that she did not want the employees to be intimidated by being confronted by top management personnel standing over them saying that they and the union organizers had no right to be there, and that she did not want the employees to be embarrassed or put under any kind of pressure. For demeanor reasons, I do not credit Ruhl's testimony that the proposal emanated from Harvey. II My findings in this sentence are based on Polk's and Harvey's testi- mony. For demeanor reasons and in view of the probabilities of the situa- tion. I do not accept Ruhl's testimony that Polk said she was not in viola- tion of Respondent's policy. 12 This finding is based on Polk's testimony, which is indirectly cor- roborated by Harvey's testimony that he "assumed" they were there for union solicitation and by Ruhl's testimony that he so inferred from their prior literature distribution and their failure to buy food before sitting down. For demeanor reasons, I do not accept Ruhl's testimony, to some extent corroborated by Harvey, that Harvey asked the organizers why they were there 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments, and would talk to the employees about that later. Polk asked the employees to tell the other employees whom Polk and Garcia had intended to meet that a meeting was not a good idea, that Polk and Garcia were going to have problems, that Ruhl and Harvey had told the organizers to leave and were going to call the police, and that Polk did not want any employees to be embar- rassed. Then, Polk and Garcia went through the cafete- ria line, purchased some food, returned to the table which they had occupied before, and began to eat. After they had reseated themselves, two uniformed policemen arrived. While standing at a point in the Buffeteria apart from the union organizers' table, Harvey and Ruhl began to tell the police about this situation and why manage- ment felt the union organizers were in violation of com- pany policies. During this conversation, employees Leatherman, Kabat, and Simmons finished their lunch and left the Buffeteria. On the way back from lunch, these three employees encountered six employees who had arranged to meet with the union organizers at 12:30 p.m. in the Buffeteria. Kabat or Leatherman told them that police officers and Ward's officials were in the Buffeteria, and that the em- ployees should not join Polk but should sit at another table. The six employees then proceeded to the Buffe- teria, where they saw management talking to the police and the union organizers sitting at their table with their food. Polk waved them away, and they sat down about 8 feet from her. After conversing for about 10 minutes, Harvey, Ruhl, and the two police officers came over to the union orga- nizers and, possibly excepting one policeman, sat down. Harvey said that he had decided that the organizers would be allowed to finish their lunch, but that if they stayed any longer or solicited any employees while the organizers were eating he would have them removed. The organizers said that they would leave after finishing their lunch. Harvey said that he and Ruhl would be sit- ting there to make sure that the organizers did not talk to any employees; that if they persisted in speaking to employees in the cafeteria area, he would have a com- plaint issued against the organizers; and that if they did not leave, he would have them removed and have a complaint issued against them. One of the policemen, a lieutenant, told the organizers that the land on which the parking lot was located, the sidewalks, and the cafeteria were all Respondent's property, that Respondent had a right to have the organizers removed, that if Respondent decided to swear out a complaint against the organizers the police would have to arrest them for trespassing, and that they should keep a $100 bond available.'3 Polk said that Federal labor law guarantees the employees the right to organize, and that this means that a union must have access to the employees. Harvey said that he had no intention of allowing the organizers on the property, either in the cafeteria, in the parking lot, or on the sidewalk, and that, if the organizers persisted, he would have them arrested for trespassing. The police asked the 13 The parties stipulated that preemption considerations aside, upon Respondent's revocation of its invitation to Polk and Garcia they had become trespassers under Illinois law. See May Department Stores Co. v. Teamsters Union Local 743, 64 111.2d 153, 355 N.E.2d 7 (1975). organizers for their names and addresses, and for identifi cation; and then left. The policemen had been at the table for 15 or 20 minutes. Harvey and Ruhl remainec sitting at the table next to the organizers while they fin ished their lunch.' 4 When the organizers got up about IC minutes later to leave, they were escorted out through the retail store by Harvey, Ruhl and someone who ap- peared to be a plainclothes security policeman. The six employees who had originally arranged to meet with the union organizers in the Buffeteria at 12:30 p.m. were sit- ting at their table throughout the entire conversation be- tween the organizers, the police, Harvey and Ruhl. but could not overhear much of what was said. At this time, the cafeteria was still about half full. '5 That day, the only employees to whom the organizers spoke were the three whom they met at noon. The orga- nizers did not speak or attempt to speak to any of the retail store employees or the cafeteria employees and did not move around between tables in the cafeteria. Nor did the organizers distribute any literature in the Buffeteria. Polk and Garcia wore no insignia which would identify them as union agents. Nor do any of Respondent's credit center employees wear uniforms or nameplates which would advise third persons that they are employed by Respondent. C. The Union's Subsequent Organizational Efforts; Alleged Alternative Means of Communication By letter to the credit operating center manager, Hun- lock, dated December 9, a week after the Buffeteria inci- dent, the Union referred to its campaign to organize Re- spondent's credit center, and stated: We feel strongly that your denial of our rights to make contact with employees (1) by distribution of literature before working hours, and (2) on employ- ees' lunch breaks in your public cafeteria, is con- trary to the Act]. Therefore, we . . . request that you allow us to engage in the above mentioned activities with the provision that no such activity interfere with the business operation of the company. The letter went on to say that, if Respondent did not "agree to give us access to your property to distribute literature and talk to employees," the Union was request- ing a list of names and addresses of all eligible employees in the "credit operating center." The letter alleged that such a list was necessary to allow the Union to commu- nicate with all of Respondent's employees "so that they may exercise their rights to join or support the Union of their choice." 14 This finding is based on Polk's and employee Linda Sandford's testi- mony. For demeanor reasons, I do not accept the testimony of Harvey and Ruhl that they kept an eye on the organizers from a point about 30 feet away. '1 My findings as to the sequence of the events after management's conversation with the union organizers outside the Buffeteria and until the police left are based on the testimony of Ruhl, Harvey, Leatherman, Kabat, and Piscule, and inferences therefrom. I believe Polk was mistak- en as to the order in which some of these events occurred. MONTGOMERY WARD & COMPANY, INC 807 By letter to the Union dated December 15, Hunlock stated that Respondent would respect its employees' right to join or not join a union, and expressed doubt that the employees at the "credit center" wanted a union. Respondent rejected, on the ground of the em- ployees' right to privacy, the Union's request for the em- ployees' names and addresses. Further, the letter stated: The company has the legal right to prevent non employees from distributing literature on its own property if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message. . . The company does not have an obligation to provide non employee union organizers access to our employees on company property when there are reasonable alternatives to your union. We feel that attempts by non employee organiz- ers to distribute literature in the cafeteria is a poten- tially disruptive activity. It not only hinders the or- derliness of our employees eating their lunches but it potentially could disrupt the activities of our cus- tomers and subject them to union arguments that may be somewhat offensive to our customers. In view of these facts and the desire of the com- pany to maintain discipline and order throughout our facility, the company respectfully denies your request to use company property for personal rea- sons. Polk testified that the Union was interested in organizing all employees who worked in the credit operating center, but that until the August 1978 hearing she was not aware that there was a credit service center. (As previously noted, there are in fact two credit service centers.) Later, union counsel stated that the Union had not previously known of "the specific relationship between the three credit centers," and that the Union was interested in rep- resenting all the employees who worked on credit mat- ters, whether in the operating center or in the service center. Respondent's retail store is open for business from 9:30 a.m. to 9:30 p.m., including Saturdays. The mall closes at 9:30 or 10 p.m.' 6 About 98 percent of Respondent's full- time credit operating employees arrive at the facility be- tween 6:15 and 8:30 a.m. and leave between 2:45 and 5 p.m. The vast majority of these full-time employees work from 8:30 a.m. to 5 p.m. Most of Respondent's retail store employees leave after 6 p.m. Part-time credit operating employees, perhaps 20 in number, work a varying number of hours within varying timespans, usu- ally beginning after full-time credit operating employees start work and in some cases after full-timers leave for the day. Most, but not all, full-time credit operating em- ployees do not work on Saturdays. The only persons who have occasion to come to the mall as early as 6:15 a.m. are credit operating employees employed by Re- spondent, except that Respondent's shipping and receiv- ing employees work a night shift whose hours Ruhl did not know and are not shown by the record. The Union was advised as to about when Respondent's credit oper- 16 The record fails to show whether it is open on Sundays. ating center employees began to come in and when the last group came in, but not when the bulk of them came in. Further, the Union was advised that some of the credit operating center employees work on Saturdays. Leatherman's testimony suggests that the credit operat- ing employees and the credit service employees work the same hours, but she had limited opportunity to observe and the record in this connection is unclear. All full-time credit center employees have a half-hour unpaid lunch period, which usually begins at noon or 12:30 p.m., and two 15-minute paid breaks a day. Although there is a bus stop near or on the Yorktown mall, about 95 percent of the credit center employees drive to work. They use cars which bear no indication that the drivers or passengers work for Respondent. The record fails to show the extent, if any, of carpooling be- tween credit center employees, between them and other personnel of Respondent, or between them and persons who work in or around the mall and are not employed by Respondent. Respondent has issued instructions to its employees-including credit center employees, Buffeteria employees, and retail employees-to park only in certain portions of the parking lot which serves the entire mall area. These areas are frequently if not always indicated by markers whose significance is supposed to be under- stood by employees, but such markers would not tell a nonemployee which spaces are supposed to be used by employees. Moreover, employees sometimes park in spaces where they are not supposed to park. Further- more, customers can and do park in the areas which em- ployees are supposed to use. Also, Respondent makes no effort to prevent employees of other stores in the mall from parking in the areas where Respondent's employees are supposed to park. After December 2, the Union was told that most of the credit operating center employees parked in a designated area of the parking lot. The record fails to show whether the Union was told what these portions were. In November 1977, these areas consisted of two areas which were mostly if not entirely on land owned by the Yorktown mall itself. These areas were adjacent to But- terfield Road and Highland Avenue, respectively. In the former area, first-row cars were parked with their bump- ers facing Butterfield Road, but the others were parked diagonally. I credit the testimony of employees Kabat and Piscule and discredit the testimony of Ruhl in this connection, and conclude that persons who stationed themselves on the publicly owned grassy strip between Butterfield Road and the parking lot fence would be able to see the license plate numbers on the first row of cars only. Ruhl testified without contradiction that car license plate numbers could be observed in the parking area ad- jacent to Highland Avenue by a person on the grassy strip between that street and the parking lot fence. There " Partly because of periodic changes in the areas which employees are supposed to use, the testimony of credit center employee Kabat indicates that she was confused about which parking spaces she was supposed to use Credit center employee Leatherman credibly testified that, for rea- sons related to personal safety, when reporting to work at 6:30 a m she frequently parked in an area supposed to be used by customers only Credit center employee Piscule credibly testified that she sometimes parks in such an area because it is "closer 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no record evidence about whether the Yorktown mall permitted union representatives to enter its own parking lots in order to obtain the license numbers on cars. In December 1977, the employees were instructed to stop using much of the latter parking area, including the part nearest to Highland Avenue, and to use instead an area much of which is owned by Respondent and is about 400 feet from the nearest public road and from areas not owned by Respondent. Cars in this newly added area were parked facing each other, and at a slant, on either side of parallel lines drawn on the pavement without ref- erence to the distance from Highland Avenue. As to this newly added area, I credit the testimony of employees Kabat and Piscule and discredit the testimony of Ruhl in this connection and conclude that persons could not see the numbers of any of the license plates on cars parked in this area without entering land owned by Respondent. During December 1977, the mean temperature in the area was 24.2 degrees Fahrenheit, a temperature some- what lower than the December normal in the area. Also, during November 1977, December 1977, and January 1978, an unusual amount of snow fell in the area." During these months, 2 or 3 feet of snow accumulated on the publicly owned grassy strips next to the shopping center, because the adjacent public roads and the inter- secting egress roads into the shopping center were snow- plowed. 19 After December 2, the Union took some license num- bers off some cars that it thought were perhaps regis- tered to Respondent's credit center employees, obtained addresses listed for those license numbers, and mailed union literature to such addresses. The Union received no authorization cards or telephone calls in response to this mailing. None of the employees ever supplied the Union with the names and addresses of other credit oper- ating center employees. Polk testified that she received "very vague information" from credit operating center employees concerning individuals and what department they worked in, and that "Some employees . . . in some departments are apparently very much confined and don't have information in other areas." 20 Leatherman, 1' My findings in these two sentences are based on certain climatologi- cal data, prepared by the United States Department of Commerce, which are attached to the General Counsel's and the Union's briefs. Respondent having filed no objection to opposing counsel's request that I take judi- cial notice of this material, the request is hereby granted. This material shows that at the Chicago Midway Airport, about 25 miles from Lom- bard, the mean December temperature between 1958 and 1977 was 26.8, and the mean December temperature between 1938 and 1977 was 29.3. This material further shows that, in the same location, 6.3 inches of snow fell in November 1977, 19.2 inches fell in December 1977, and 323 inches fell in January 1978. Between 1938 and 1977, the mean November snow- fall was 2.9 inches, the mean December snowfall was 10.8 inches, and the mean January snowfall was 9.9 inches. 19 The shopping center parking areas were also cleared by snowplows, which left piles of snow 2 or 3 feet high inside the fence along Butter- field Road, in the new employee parking area, and around the light posts. The snow raised both the eye level of a person who chose to stand on the grassy strips and the eye level necessary to read license plates on cars parked in the shopping center. 20 One of the two credit service centers is adjacent to the credit oper- ating center; the other is on the opposite side of the building. As previ- ously noted, until the hearing Polk was unaware of the existence of any credit service center. who worked in the credit center for about 2 years, credi- bly testified that she did not know all of the employees in the credit operating center by name; knew the "big- gest majority," but not all, by face; and did not know which municipalities most of them lived in. Sometime in December, Polk read to a group of 10 or 11 employees a list of 75 to 85 names which, Polk said, she had obtained from the parking lot license plates. 21 Piscule recognized three or four, at least one of whom was a retail clerk. Collectively, the group recognized no more than five names. Piscule never provided the Union with the names, addresses, or telephone numbers of her fellow employees. The employees in the credit center have one-half hour for lunch. The mall contains about four cafeterias in ad- dition to the Buffeteria and several restaurants where pa- trons are served at a table. The eating facility most dis- tant from the credit center, Penney's cafeteria, requires a 10-minute walk each way. 22 Leatherman credibly testi- fied that she ate lunch in the Buffeteria more often than anywhere else, and that she ate lunch at the Harvest House cafeteria and at Walgreen's2 3 only once or twice because they were so crowded. In view of her testimony in this respect, employee Sandford's testimony that the Buffeteria is a 2- or 3-minute walk from the credit center, and Ruhl's testimony that he frequently ate lunch and usually ate afternoon snacks there, I infer that the Buffeteria was the public dining facility which enabled the credit center employees to spend the most time dis- cussing the Union while eating lunch during their lunch break, taking into account the distance and crowds be- tween the credit center and other eating facilities, the crowds within those facilities, and the time saved by a cafeteria format in obtaining a table. However, Piscule's testimony that she has in fact eaten lunch at four restau- rants (other than the Buffeteria) in the mall, and on occa- sion outside the mall, and Ruhl's testimony about the principal location of other eating establishments on the mall and that he normally takes his morning snack at Walgreen's "since it's quicker to get in and out," lead me to conclude that the union organizers could have dis- cussed the Union during the credit center employees' lunch at one of these other establishments, at least if they do not have the same solicitation ban as Respondent al- leges that it has.2 4 In fact, Polk testified that she could have used some of the other public cafeterias in the mall to meet Respondent's employees. Moreover, Polk did conduct two meetings after work in a public restaurant called the Golden Bear, which she believed to be owned by Respondent, on the perimeter of the mall area; an- other meeting at one of two restaurants next to the Golden Bear; and yet another meeting at a restaurant in Oak Brook. More than three-fourths of the credit center 21 There is no evidence, other than hearsay evidence, that she in fact obtained the names in this manner. 22 Leatherman credibly testified that she ate there only when she was given a longer lunch break, because "it takes so long to walk there." 23 Ruhl testified that this is not a cafeteria Sandford testified other- wise. z4 Harvey testified, in effect, that he would have stopped the union organizers if they had solicited employees not employed by Respondent. MONTGOMERY WARD & COMPANY, INC. 809 employees are women. The record fails to show how many of them have family responsibilities. On at least two occasions between December 2, 1977, and the end of July 1978, the Union attempted to distrib- ute literature on Respondent's sidewalks next to its store. On two occasions the police were called, and on one oc- casion, about early May 1978, the union president was arrested. As of about October 1978, Respondent's credit operat- ing center and credit service centers employed about 222 full-time employees who lived in 45 different communi- ties. Of these communities, 33 housed 5 or fewer employ- ees each; 9 of these communities housed 6 to 20 employ- ees each; and the remaining 3 communities housed 21 to 34 employees each. The most distant of these communi- ies (Midlothian, which housed one employee) is about 37 miles from Lombard. About 137 of these employees- that is, about 61 percent-live within a 10-mile radius of Lombard.25 About 163-that is, about 73 percent-live within a 15-mile radius.2 6 Practically all the communities where these employees live are located in the metropolitan area of Chicago, which has two major newspapers and a number of radio and television stations. The single community housing the largest number of these employees (34 or about 15 percent) is Lombard, which has a local newspaper. Bow- lingbrook and Romeoville, with a total of two credit center employees, have a semiweekly newspaper. So far as the record shows, the Union never tried to further its organizational campaign by advertisements in newspa- pers, on the radio, or on television. D. Respondent's No-Solicitation Rule The parties stipulated that the following rule was in effect at all relevant times: DISTRIBUTION OF LITERATURE AND SO- LICITATION ON COMPANY TIME FOR NON-COMPANY ACTIVITIES Employees may not distribute union literature or solicit membership in unions, or fraternal, religious, social, or political organizations on Company time, or while employees to whom literature is being dis- tributed, or whose membership is being solicited, are on Company time. Company time is that time which the employee is scheduled to be on duty and for which the employee is being paid, excluding rest periods, lunch periods, and time before and after the employee's working day. Solicitation by employees is permitted on Compa- ny property so long as the employees, both those soliciting and those being solicited, are on their own time and the solicitation is conducted in a quiet and orderly manner and does not interfere with the op- 2 These communities are Addison (11 employees). Bellwood (2). Bloomingdale (I), Carol Stream (5), Clarendon Hills (2), Downers Grove (14), Elmhurst (7), Glendale Heights (1), Glen Ellyn (18). Hinsdale (1). Lisle (9), Lombard (34), Oakbrook (I). Villa Park (21), Westchester (2), and Wheaton (8). 26 In addition to those listed supra. fn. 25, these communities are Brookfield (I), Darien (4), LaGrange (1), Maywood (I). Melrose Park (I), Naperville (6), West Riverside (2), and Woodridge (10) eration of the Company's business. Meetings or speeches are not to be permitted; solicitation which results in disturbing or interfering with the work or function of any of the employees or department is forbidden; solicitation which is detrimental to main- taining the premises in a clean and attractive condi- tion is forbidden. Solicitation by non-employees of the Company is prohibited at all times in the store and store operat- ed buildings. It is a violation of the Company's No Solicitation rule either to solicit or be solicited in a manner pro- hibited by this rule. Solicitations for charity drives and fund raising campaigns are to follow the guidelines for solicita- tion as outlined above. The Company generally sup- ports one all-out community charity drive. Prior ap- proval is required for any additional charity drive held on Company property. There are times when expressions of friendship or goodwill for co-workers are permissible, but in order to protect employees from too frequent collections for such purposes written permission for such solicitation must be ob- tained from the store manager or personnel man- ager. Any violations of the Company No Solicitation rule should be reported at once to your immediate supervisor or a store staff member. The rule is not given to employees when they are hired. The record fails to show when and where, if ever, it was posted. 27 Employee Sandford, who began work- ing at the Yorktown facility in October 1975, credibly testified that she never saw this rule before meeting with Polk in the cafeteria on December 2, 1977; that she first saw the rule a few days after the meeting; and that before seeing this rule she had never been told that Re- spondent had any solicitation or distribution rules in effect. E. Analysis and Conclusions I. Whether the no-solicitation bar was intended to discriminate against union solicitation The General Counsel and the Union contend that Re- spondent's bar against solicitation by nonemployees was intended to discriminate against union solicitation. Re- spondent's brief denies that the bar had such a purpose, and further states that "one" purpose of the bar "is to prevent the disruption, or the threat of disruption, of the selling function of Respondent's retail store and to avoid customer confusion and interference which would, or could, be caused by solicitations within the Lombard fa- 2z Farly during the first day of the hearing, the parties stipulated that the rule had been posted at all relevant times. A few minutes later, the General Counsel moved for leave to withdraw from the stipulation, on the ground that during a recess she had obtained evidence that t was not posted until after the uffeteria incident. Union counsel stated that he had no objection to the motiron Upon the concession of Respondent's counsel that he ould suffer no prejudice if the motion were granted. I granletl the rotion I,rer his objection 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cility." 28 Some of the evidence lends support to Re- spondent's contention regarding the bar's purpose in con- nection with the Buffeteria. Thus, upon being asked for the second time to give the purpose of the rule, Person- nel Manager Harvey testified, "The purpose of the rule is to prevent any type of disruption of activities in terms of normal functions in terms of our normal business oper- ations."2 9 Further, Harvey testified that the rule would lead him to prohibit a representative of the American Cancer Society from soliciting contributions from per- sons in the Buffeteria, either orally or by displaying a sign on his lunch table. In addition, Harvey testified that the rule would lead him to prohibit representatives of charity groups from discussing a charity drive with em- ployees in the Buffeteria. Moreover, operations Manager Wall testified that the purpose of enforcing the no-solici- tation rule in the whole store, including the Buffeteria, is that "We just don't want the interruption of the custom- ers, the inconvenience of the customers." Further, he credibly testified that, about February 1977, Respondent told an "outfit" to leave the store because it was "both- ering" employees in the store by "trying to sell [them] some stuff." Also, he testified that Respondent needs turnover in the Buffeteria and cannot afford to have people filling chairs "all the time" in the Buffeteria when they do not need to be seated in order to eat the food they bought there. However, other evidence in the record is difficult, if indeed not impossible, to reconcile with any contention that as to the Buffeteria the bar's only purposes are to avoid disturbance of customers and to insure turnover by paying customers. Moreover, much of such evidence in- dicates that Respondent administered this bar in the Buf- feteria for a purpose of preventing the subject of union organization from being discussed between nonem- ployees and employees, and that Respondent would not attempt to bar nonemployee "solicitation" of employees, in the manner which the union representatives adopted here, so long as unionization was not the subject matter of the "solicitation." Thus, at least where (as here) restaurant patrons would have no way of knowing whether the parties to solicita- tion conferences are employees of Respondent, whether they are such employees could not affect any impact of such solicitation upon patrons.3 0 Respondent's written no-solicitation rule implicitly recognizes this by imposing a blanket prohibition on all solicitation by nonemployees, without limitation based on the status of those solicited. However, the record indicates that Respondent inter- prets its solicitation ban so as to forbid certain nonem- ployee solicitation of employees but not nonemployees. Thus, when asked the purpose of the no-solicitation rule, Personnel Manager Harvey initially testified, "The pur- pose . . . is to prevent any type of solicitations of em- 28 Respondent's brief does not set forth other purposes of the bar. 28 Harvey's initial response to this question is discussed infra. a0 In connection with the Buffeteria incident, Respondent abandoned an attempt to show that the employees did not have coats with them. Indeed, persons who worked in other mall establishments might well have regarded coats as unnecessary for a walk along an enclosed mall into the Buffeteria. In any event, I doubt that other Buffeteria patrons would have noticed the absence of coats, or if they did, would have trou- bled to ponder its significance ployees by non-employees on company property and time" (emphasis supplied). Moreover, Harvey testified that the no-solicitation rule did not call for the expulsion from the Buffeteria of a nonemployee who, while eating with a nonemployee friend, tried to induce him to join the American Bar Association; but that the rule would call for such expulsion if the inducement was directed at an off-duty employee who had just finished law school. Furthermore, Harvey's testimony indicates that the scope of the ban on solicitation of employees depends partly on the kind of organization being solicited for; thus, he testi- fied, in effect, that he was unsure whether he would have taken any action if the December 2 solicitation by nonemployees had been directed toward the formation of a Girl Scout troop by employees. Indeed, when asked about whether the no-solicitation rule would be violated by a nonemployee who asked an off-duty employee to join the American Bar Association, Harvey initially re- plied that his decision would hinge on "what that solici- tation involved." That Respondent discriminatorily administered the ban for an antiunion purpose is further shown by Harvey's testimony that upon seeing the union representatives in the Buffeteria he immediately "assumed they were there for union solicitation," that "their being there soliciting employees for for union membership was the issue," and that "their being there soliciting for union membership was contrary to company policy. That is why I did what I did" (emphasis supplied). Additional evidence of the rule's discriminatory purpose is Harvey's testimony that, if he saw a group of people in the Buffeteria talking, he would not approach them to find out what they were talking about, that he had never approached a nonem- ployee in the Buffeteria to find out what he was talking about, and that he approached Polk and Garcia in the Buffeteria without knowing what they had been saying to the employees whom they had joined but because he recognized them as union organizers. Discriminatory intent is further indicated by the testimony of Ruhl, who approached the union organizers in the Buffeteria be- cause he had seen them earlier that day passing out union literature on a Ward-owned sidewalk next to the store, that Respondent's written no-solicitation rule for- bids nonemployees to distribute literature on Ward- owned sidewalks and parking lots. That rule, which he read before so testifying, merely forbids nonemployees to solicit "in the store and store operated buildings." Fur- ther suggestive of a discriminatory intent is Manager Hunlock's December 15 response to the Union's Decem- ber 9 request for access to certain portions of Respond- ent's property. Hunlock rejected this request in toto on the ground that distribution of literature in the Buffeteria is a "potentially disruptive activity" which, inter alia, "hinders the orderliness of our employees eating their lunches," even though the Union's letter did not request permission to distribute literature in the Buffeteria and Harvey testified that he had not seen the union repre- sentatives distribute literature there. Also suggestive of discriminatory application is Respondent's toleration of the conduct of employee Simmons, one of the employees who was present during the first part of the Buffeteria MONTGOMERY WARD & COMPANY, INC. 811 incident, in using working time to solicit other credit center employees to buy jewelry and cosmetics from a catalog order firm other than Ward's, even though this activity occurred under circumstances where Supervisor Lorraine Francischini and other credit center supervisors must have been alerted thereto. Respondent's written rule forbids employees to solicit during working time for any purpose, and Ward's itself also sells jewelry and cos- metics. 31 Furthermore, by stating on the record that Respondent would have barred the union representatives from coming into the premises to buy food and, while eating, to solicit the employees, Respondent's counsel in effect admitted that Respondent's exclusion of the union repre- sentatives from the half-empty Buffeteria was not moti- vated by a desire to insure paying-customer turnover.: 2 Indeed, Operations Manager Wall's testimony at one point that employees are not informed that they should get out of the cafeteria so other people can come in3: and the absence of any posted notice forbidding employ- ees to eat brown bag lunches in the Buffeteria without buying anything there3 4 indicate that Respondent is not particularly concerned by problems relating to Buffeteria turnover and the use of Buffeteria chairs and tables by persons who have not bought any food there. In view of the foregoing considerations, I conclude that a purpose of Respondent's rule against solicitation by nonemployees was to discriminate against "solicita- tion" of non-Buffeteria employees by union organizers where, as here, such "solicitation" was part of an order- ly, discreet conversation by appointment with willing employee patrons over tables where they were eating during their unpaid lunch periods. Because of this dis- criminatory purpose, Respondent's maintenance and en- forcement of this rule to this extent violated Section 8(a)(1) assuming arguendo that a nondiscriminatory re- striction of Buffeteria solicitation under such circum- stances would be permitted by L.R.B. v. Babcock & Wilcox Company, 351 U.S 105, 112 (1956), and related cases. The foregoing evidence further shows that Respond- ent did not in fact administer its no-solicitation rule so as to bar nonemployee patrons from attempting to discuss with other patrons (employees and otherwise) the merits of joining organizations other than unions, where such discussions were conducted in the Buffeteria in a manner externally indistinguishable from other conversations a] Personnel Manager Harsey credibis testified that he s.as unaware of this activity, and there is no evidence that Wall and Ruhl knew about it. However, see Westinghouse Electric Corporation. 240 Ng RB ')5, 915 916 (1979), modified 612 F.2d 1072 (th Cir 1979) a2 Polk credibly testified that, when the union representatives entered the Buffeteria, they had already decided to at lunch there There is no evidence that Harvey and Ruhl knew this hen first approaching the union representatives, who were then seated at a table ithout having bought any food Nor is there any eldence that tlarve, or Ruhl asked whether the union representatives planned to buy food or referred at all to the fact that they were not then paying culstomers 33 This testimony is consistintl ith that of Leatherman. who ofTle ale lunch there '4 The record fails o shoe whether Respondenl ha,, ans rltteln rule to this effect However, from time to time managenletl approilches such employees i the Buffeteria and requests, lhen nr t enlgage in this prac- tice normally incident to a meal. Nor would it be practicable for Respondent to enforce such a limitation in a cafeteria where the public is invited to eat, and where patrons would normally expect to engage while eating in social conversations which would sometimes include nonunion "solicitation" activity. So long as the patrons externally conduct themselves as Polk and Garcia did here, the only ways that Respondent could effectively police re- strictions on conversations about the merits of any orga- nizational activity (union or otherwise) would be to eavesdrop systematically on all Buffeteria conversations including nonemployees, who generate 80 or 90 percent of Buffeteria sales, or to ask one of the patrons partici- pating in each conversation involving a nonemployee whether any nonemployee was then asking anyone to join anything. I do not believe that Respondent would engage in any conduct so time-consuming and so poten- tially annoying, if indeed not infuriating, to customers.3 5 Thus, aside from the Polk-Garcia incident, there is no evidence whatever that Respondent ever made any effort even to find out whether seemingly ordinary social con- versations including nonemployee Buffeteria patrons in- volved requests to join any organization, let alone that Respondent threatened any nonemployees with expulsion from the Buffeteria for engaging in such "solicitation." Indeed, there is no evidence that Respondent's no-solici- tation rule is posted where even employees, let alone nonemployee Buffeteria patrons, can see it. In short, the General Counsel and the Union tender an essentially theoretical question when they urge that Re- spondent could not lawfully enforce even a nondiscri- minatory nto-solicitation rule to the extent of forbidding union organizers to meet with off-duty employees in the Buffeteria to discuss the Union, so long as they conduct themselves consistently with the purposes of the cafete- ria. In view of the academic nature of the parties' dispute about the legality of such a nondiscriminatory ban, I need not and do not determine whether the legality of such a restriction would depend on the Babcock standard of whether "reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message" (351 U.S. at 112).36 Accordingly, neither do I determine whether that standard has been satisfied here. However, because after receiving this Decision the parties may wish to ad- dress before reviewing bodies the propriety of such a nondiscriminatory rule, evidence allegedly material to that standard has been summarized herein. 2. Other issues presented by the pleadings I have found that Respondent violated Section 8(a)(l) by discriminatorily maintaining and enforcing in its Buf- feteria a ban against nonemployees' union solicitation of employees during nonworking time in the manner adopt- ed by Union Representatives Polk and Garcia. Accord- I fact, ()perltionsl Manager Wall testified that Respondeint was oIxnable to preent it onl retil employees fronm using the Buffeteria during the Christmas shsppilig eason :i Ct .flt )arhimcnt .Si,r ('Crnpane d/h/a .34ier & 'rani Co, 198 NI RIB 41 (i1172) Rcadr, Inr,. 205 N.R 3102, 31t) 311, 313 314 (19731 ()'rih .'fitia r',,tenrt (' tnipt Inc .1 182 NLRB 722 (197(0) 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, Respondent further violated Section 8(a)(1) by en- gaging in surveillance of these union representatives while they were engaging in such solicitation. W. T. Grant Company, 195 NLRB 1000, 1008 (1972). Further, I agree with the General Counsel that Respondent also violated the Act by threatening to call the police and have these union representatives removed if they refused to leave voluntarily; and by summoning the police for that purpose. Scott Hudgens, 192 NLRB 671 (1971), 205 NLRB 628 (1973); 37 Priced-Less Discount Foods, Inc. d/b/a Payless, 162 NLRB 872 (1967). Although much of the conversation during these events was inaudible to employees, I am persuaded that what they could see and hear enabled them to infer what Respondent was doing. CONCIUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(l) of the Act by the following conduct: (a) Maintaining and enforcing in its Buffeteria a rule against union solicitation of employees by nonemployees, with a purpose to discriminate against solicitation for unions in a particular manner as compared to solicitation for other organizations in the same manner. a7 End 501 F2d 161 (th Cir 1974), reversed with instructions to remand to the Board 424 U.S 507 (1976), initial decision adhered to on remand 230 NLRB 414 (1977) (b) Engaging in surveillance of nonemployee union representatives in the Buffeteria while they were solicit- ing employees in the aforesaid manner to join the Union. (c) Under circumstances where employees could from their own observation infer what was happening, threat- ening to call the police and have these union representa- tives removed from the Buffeteria if they refused to leave voluntarily, and summoning the police for that pur- pose. 4. The foregoing unfair labor practices affect com- merce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and from like or re- lated conduct. Affirmatively, Respondent will be re- quired to amend its no-solicitation rule so as to permit nonemployee solicitation in the Buffeteria on behalf of unions in the same manner that Respondent in fact per- mits nonemployee solicitation in the Buffeteria on behalf of other organizations. In order to forestall the possibly coercive exposure of employees to employer efforts to expel representatives of Local 743 and other unions from the Buffeteria, Respondent will also be required to post, at locations where nonemployee organizers and employ- ee patrons are likely to see it before entering the Buffe- teria, any no-solicitation rule applicable to nonemployees in the Buffeteria. In addition, Respondent will be re- quired to post appropriate notices for inspection by em- ployees. [Recommended Order omitted from publication.]