General Dynamics Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1962

137 N.L.R.B. 1725 (N.L.R.B. 1962)

GENERAL DYNAMICS/TELECOMMUNICATIONS , ETC. 1725
members rather than to the electrical mechanics employed by Cleve-
land Electric Illuminating Company and represented by Local 270,
Utility Workers Union of America, AFL-CIO.
[MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.]
MEMBER RODGERS, concurring :
I agree that the Employer's employees are entitled to perform the
work involved herein.
General Dynamics/Telecommunications , a Division of General
Dynamics Corporation and District No. 6, International Asso-
ciation of Machinists , AFL-CIO. Case No. 3-CA-1573. July
30, 1962
DECISION AND ORDER
On December 21, 1961, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner only to the extent consistent
herewith.
The complaint herein alleges that the Respondent interfered with its
employees in the exercise of their organizational rights in violation
of Section 8 (a) (1) of the Act by prohibiting the International Asso-
ciation of Machinists, hereinafter referred to as the Union, from dis-
tributing union literature on Carlson Road. Specifically, the Gen-
eral Counsel contends that the Respondent violated Section 8(a) (1)
by prohibiting the distribution of literature by nonemployee organi-
zers of the Union on Carlson Road, which he urges is a "public
thoroughfare" despite the fact that it is privately owned and main-
tained, while simultaneously permitting such distribution by the
Rochester Independent Workers, the exclusive representative of the
Respondent's production and maintenance employees. The Trial Ex-
137 NLRB No. 183.
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer found the violation essentially for the reasons alleged by the
General Counsel.'
The Respondent Company is engaged in the development, manu-
facture, and sale of electronic communication and radio equipment
products. Its principal office and operating facilities are located in
Rochester, New York, a city of 350,000 people. The only facility in-
volved in the instant proceeding is the Respondent's Carlson Road
plant in that city.
Approximately 90 percent of the Respondent's 4,500 employees, of
which 3,000 production and maintenance employees are currently rep-
resented by the R.I.W., live within the "metropolitan area" of Roch-
ester and the remaining employees live within a 50-mile radius. The
vast majority of these employees either drive or are driven to work
in private automobiles. There are five plant entrances (referred to
as the Radio Center, Building 8, and Humboldt Street gates and the
Humboldt-Carlson and Blossom-Carlson entrances) through which all
the Respondent's employees may pass. The record is clear that, al-
though the Respondent prohibited the Union from distributing its
literature on Carlson Road, the Union was not precluded from and
did in fact engage in handbilling activities at each of these five plant
entrances. Thus, the Union distributed literature on Humboldt Street,
a public road adjoining the Respondent's premises, at the Radio Cen-
ter, Building 8, and Humboldt Street gates as well as at the Humboldt
Street entrance to Carlson Road. Likewise, it distributed literature
on Blossom Road, another public street adjoining the Respondent's
premises, at the plant entrance to Carlson Road from that particular
street.
While conceding that an employer, under the rule in N.L.R.B. v.
The Babcock € Wilcox Company,' is not obligated to permit the use
of its facilities to nonemployee organizers provided that the employees
are not beyond the reasonable reach of union efforts to communicate
with them through other available channels of communication, the
Trial Examiner was of the opinion that "the Union had endeavored
without success to reach the approximately 3,000 employees of the
Respondent in the appropriate unit by personal contact for several
months preceding the handbilling on February 14, 1961," and hence
the Respondent was obligated to allow the Union to distribute its
literature on Carlson Road. Furthermore, the Trial Examiner was
of the opinion that because the Respondent had permitted the use of
Carlson Road as a "public thoroughfare" it had no "cogent reason"
I in addition to finding a violation of Section 8(a) (1) based on the General Counsel's
allegation that the Respondent unlawfully enforced its no-distribution rule against non-
employee union organizers , the Trial Examiner also found that the Respondent violated
the Act by promulgating such rule. The complaint did not allege the promulgation of
this rule as a violation of the Act nor was such issue litigated . Accordingly, there is no
basis for such finding.
2351 U.S. 105, 113-114.
GENERAL DYNAMICS/TELECOMMUNICATIONS, ETC. 1727
for denying its use to the Union and under the rule of the Marshall
Fields case its denial of the use of the street to the Union in such
circumstances constitutes an unlawful interference with employee
rights to be solicited for organizational purposes. Finally, the Trial
Examiner pointed to the fact that the Respondent had permitted em-
ployee members of the R.I.W. to distribute literature on company
property while refusing to permit the union organizers to engage in
such distribution on Carlson Road. In view of all the foregoing
considerations, the Trial Examiner found that the Respondent violated
Section 8 (a) (1) of the Act. We do not agree.
In Babcock & Wilcox the Supreme Court held that "an employer
may validly post his property against nonemployee distribution of
union literature if reasonable efforts by the union through other avail-
able channels of communication will enable it to reach the employees
with its message and if the employer's notice or order does not dis-
criminate against the union by allowing other distribution." It is
not disputed that Carlson Road is a privately owned and maintained
street.4 Clearly "posted" as private property,-' it has never been dedi-
cated as a public street although for the convenience of the public the
Respondent has permitted limited use of the street as a passageway for
pedestrians and motor vehicles. All other uses, including the dis-
tribution of any form of literature, have been prohibited without
exception.-'
Although the use of Carlson Road for the distribution of literature
was denied the Union, we disagree with the Trial Examiner's con-
clusion that, in the circumstances of this case, such denial placed the
Respondent's employees beyond the reach of reasonable union efforts
to communicate with them. Thus, as set forth in the record, for a
6-month period commencing on February 14, 1961, 10 or more non-
employee organizers of the Union, without any interference from the
Respondent, distributed handbills every Tuesday morning at the
Respondent's 3 aforementioned entrance gates which opened on
Humboldt Street and at the Blossom Road and Humboldt Street
'Marshall Field & Company, 98 NLRB 88 . We find Marshall Field distinguishable
This Board has uniformly recognized that department stores, like lumber camps and com-
pany towns , present special situations in which the controlling principles do not lend
themselves to routine application See Livingston Shirt Corporation, et at, 107 NLRB
400, and the later discussion herein
4 Thus, the record reveals that Carlson Road was built in 1924 by the Respondent and
named after one of its founders and that the cost expended for private security guards,
the posting of traffic control signs , and general street repairs have always been the ex-
elusive responsibility of the Respondent
In order to preserve its clear legal title to the road despite limited public use, the
Respondent has also traditionally exercised its prerogative by closing Carlson Road to
the public 1 day each year.
6 From the early 1930 's until January 1961, the Respondent 's broad ban on the distribu-
tion of any literature on company premises was applied to employees and nonemployees
alike. However , in January 1961 , the Respondent , acting on advice from counsel , deviated
from this policy and permitted its employees to distribute the R I.W. newspapers during
nonworking time at various building exits within the plant boundary lines.
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrances to Carlson Road. The latter two entrances, the most heavily
trafficked means of ingress to the Employer's plant, are used daily by
"a little less than half" of the total employee complement of 4,500
workers.
Although traffic entering Carlson Road was admittedly heavy at
certain hours of the morning and reaching the occupants of the auto-
mobiles turning off the public highways into Carlson Road presented
some difficulty, it is not disputed that the Union, presumably on each
day it engaged in soliciting the Respondent's employees, "got a hand-
bill in almost every fourth car" arriving at the plant via the two
entrances at Carlson Roard. Moreover, the union organizers had no
difficulty getting handbills to some 300 employees who walked to work
and entered the plant through the Humboldt Street gate, or to the
large groups of employees (both automobile passengers and pedes-
trians) who used the Radio Center and Building 8 gates. Finally,
union organizers without interference from the Company distributed
handbills on Rochester Transit buses which used Carlson Road to
transport about 150 employees to the plant every day.
In addition to reaching a very substantial number of employees by
these methods, the record shows that during the past 4 years the Union
has pursued its organizational campaign into the homes of employees
by conducting meetings among and sending literature to small groups
of workers for the purpose of soliciting membership. The record also
shows that the Union did not avail itself of other channels of com-
munication such as newspapers, radio, or television.
We cannot, on the basis of all the record in this proceeding, agree
with the Trial Examiner's finding that the Respondent's employees
were beyond the reach of reasonable union efforts to communicate
with them. As the Supreme Court has stated in Babcock cC Wilcox,
supra, "The Act requires only that the employer refrain from inter-
ference, discrimination, restraint, or coercion in the employees' exer-
cise of their own rights. It does not require that the employer permit
the use of its facilities [by nonemployees] for organization when other
means are readily available."
Nor can we agree with the Trial Examiner that the Respondent dis-
criminated against the Union because it allowed the R.I.W. to dis-
tribute its literature on company property while prohibiting such
distribution by nonemployee organizers of the Union. The asserted
disparity of treatment does not exist because the situations sought to
be compared are not, as a matter of settled law, comparable. The dis-
tribution of R.I.W. literature was carried out by Respondent's
employees at building exits on company property during their non-
working time. If the Respondent had denied other employees the
right to distribute Machinists' literature or even antiunion literature
under the same conditions, concededly this very denial would in and of
GENERAL DYNAMICS/TELECOMMUNICATIONS , ETC. 1729,
itself have been an unfair labor practice even without regard to the
patent disparity of treatment which would likewise be unlawful. For
the law is long established that an employer may not under the cir-
cumstances here set forth ban employee distribution of literature .7
In other words , Respondent could not lawfully have forbidden the
employee distribution of R.I .W. literature which is here cited, and,
as the record reveals, counsel so advised him.
On the other hand, as Babcock d Wilcox most emphatically demon-
strates, the law appertaining to nonemployee organizers is wholly to.
the contrary . The distinction is one of substance " ( 351 U.S. at 113).
Only "if the location of a plant and the living quarters of the employ-
ees place the employees beyond the reach of reasonable union efforts,
to communicate with them, [must ] the employer . . . allow the union
to approach his employees on his property" ( ibid. ). As already
demonstrated , the record in this case , like the records reviewed by the
Supreme Court in Babcock & Wilcox, reveals "no such conditions"
(ibid.).
It follows that no unlawful discrimination can be predicated on the-
fact that the employer , on the one hand, did what he was legally
required to do in permitting employee distribution , and, on the other
hand, exercised his legal rights to withhold the use of his property by
nonemployees for purposes of literature distribution.
Our dissenting colleague argues vigorously , however, that the,
Babcock & Wilcox holding is inapplicable here because Carlson Road,
while admittedly a company -owned street , was virtually a public
thoroughfare . His footnote reference to Marsh v. Alabama, 326 U.S.
501, suggests the relevance of that decision to the instant case.
The argument is not without persuasive content. The Supreme
Court there noted that ( 326 U.S. 501 , at 505-506) :
Ownership does not always mean absolute dominion. The more an
owner, for his advantage , opens up his property for use by the
public in general , the more do his rights become circumscribed
by the statutory and constitutional rights of those who use it.
[Citing cf. the Republic Aviation case.]
In that case the issue was whether a State, consistently with the first
and fourteenth amendments , could impose criminal punishment on a
person who undertook to distribute religious literature on the premises
of a company-owned town contrary to the wishes of the town's man-
agement. Balancing the respective property rights of the town-
owners against those of its inhabitants to enjoy freedom of press and
religion, the Court ruled in favor of the latter.
We, of course , do not quarrel with that decision or its underlying
principle . Nor does our holding here in any sense comprehend a
4 Republic Aviation Corporation v N L R B, 324 U S 793
649856-63-val. 137-110
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holding that given a situation where a factory was located in a com-
pany town, we would permit the owners to bar nonemployee orga-
nizers from its property, namely from the entire town. But that is
not the situation here. This is not a case like a company town or a
lumber camp where the employees are isolated from normal contacts
so that the customary channels of communication are closed. N.L.R.B.
v. The Babcock & Wilcox Company, 351 U.S. at 111. The difference
between a company town situation, on the one hand, and the instant
case, on the other, and the impact in the respective situations upon
the availability of other avenues of communication need not be bela-
bored. Granted that the difference can be defined as one of degree,
we operate in a field of law Where, not unlike many other comparable
fields of law, differences in degree make for differences in result.'
We agree with our dissenting colleague that the result in this case,
insofar as it turns on the quasi-public nature of Carlson Road, derives
from a balancing of the rights Respondent as the legal owner of that
property and the competing interests which arise from the statutory
right of self-organization and collective bargaining. We conclude,
however, that because of the limited nature of the restriction here
imposed by banning the Union from distribution of literature on
Carlson Road, because of the ready availability of other means of
communication, and because under the guiding principles of Babcock
& Wilcox we are dealing with the rights of nonemployees as distin-
guished from employees, we would not be warranted in finding that
Respondent's action here under all the circumstances, exceeded his
legitimate authority as the owner of Carlson Road.
In view of all the foregoing, we find that the Respondent has not
engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act. Accordingly, we shall dismiss the instant
complaint.
[The Board dismissed the complaint.]
[MEMBER FANNING took no part in the consideration of the above
Decision and Order.]
MEMBER BROWN, dissenting :
In this case the Respondent refused to permit the distribution of
literature by nonemployee union organizers on a company-owned street
(Carlson Road) in the city of Rochester, New York. Although title
to the land was vested in the Respondent, it is not disputed that for
all but 1 day of the year, the street was a public thoroughfare open to
the public, including Respondent's employees. It is also not disputed
8It is not without relevance to note that the principles implicit in Marsh v Alabama
and related cases were vigorously argued by the Board in its brief to the Sups eme Court
in the Babcock & Wilcox case . The opinion in Babcock & Wilcox, however, contains no
reterence to these cases.
GENERAL DYNAMICS/TELECOMMUNICATIONS, ETC. 1731
that union organizers of the International Association of Machinists,
the Charging Party herein, though not employees of the Respondent,
had the same right of entry upon the street as any other member of
the public. The Respondent does not assert that its restriction upon
the distribution of union literature by nonemployee union organizers
was necessary to maintain plant discipline or production, or to avoid
littering. Indeed, no such contention can reasonably be made since
it is clear that the Respondent permitted the R.I.W., the union rep-
resenting its production employees, to distribute literature to its em-
ployees in the area where the nonemployee organizers sought to dis-
tribute their literature. The majority, citing Babcock & Wilcox,9
have reversed the Trial Examiner's finding that the Respondent un-
lawfully interfered with its employees' rights to be solicited for or-
ganizational purposes.
My colleagues, in my opinion, unduly extend the reach of the Bab-
coc7e cC Wilcox decision in applying it to the present facts. Although
the Supreme Court held in that case that an employer may validly
post his property against nonemployee union distribution, it is evident
that the Court was there concerned with an employer's dominion over
property from which the general public is excluded. Here, however,
the nonemployee organizers, as part of the general public, were law-
fully on Carlson Road. Unlike Babcock & Wilcox, therefore, the
question here is not whether nonemployees have a right of access to
the employer's property, but whether employees should be permitted
to receive information from nonemployees who are lawfully where
they are. In balancing the respective rights of employer-property
owners and employees in these circumstances, I believe that freedom
of communication preponderates.10
Accordingly, I would find that, by prohibiting the distribution of
union literature to employees on Carlson Road, Respondent violated
Section 8 (a) (1) of the Act by interfering with the rights of employees
to organize.
e 351 U.S 105.
Cf. Marsh v. Alabama, 326 U. S 501 ; Republic Aviation Corporation v. N L R B.,
324 U.S. 793.
Contrary to my colleagues , I do not read Marsh v. Alabama, supra, as turning upon the
nonavailability of other avenues of communication ; Indeed , in his dissenting opinion in
that case (326 U S. at 514), Justice Reed specifically mentioned the uncontroverted fact
that the appellant could have distributed her literature on a public highway located a
mere 30 feet from the spot at which she chose to make the distribution there in question
And while it may be interesting to speculate , as my colleagues do, as to why the Supreme
Court did not mention that case in its Babcock . & Wilcox decision , I can scarcely agree
with my colleagues in their use of such tenuous consideration as a basis for supporting
an adverse inference
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by District No. 6, International Association of Machinists,
AFL-CIO , herein called the Union , the General Counsel of the National Labor
Relations Board , herein called the Board , by the Regional Director for the Third
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region, issued his complaint dated July 11, 1961, against General Dynamics/Tele-
communications, a Division of General Dynamics Corporation,' herein called the
Respondent , alleging that the Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of Section 8(a)( I) and
Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein
called the Act. Copies of the complaint, the charge, and a notice of hearing were
duly served upon the parties. The Respondent's answer to the complaint admits
certain jurisdictional allegations in the complaint, but denies the commission of any
of the unfair labor practices.
Pursuant to notice, a hearing was held in Rochester, New York, on September 19,
1961, before Trial Examiner James A. Shaw. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence was afforded all
parties. After the close of the hearing counsel for the General Counsel and for the
Respondent filed briefs which have been carefully considered by the Trial Examiner-
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
From the pleadings and from the record as a whole the Trial Examiner makes
the following findings as regards the business of the Respondent.
At the hearing herein the General Counsel amended paragraph II of the com-
plaint to read:
Respondent now is a wholly owned division of the General Dynamics Corpora-
tion a corporation duly organized and existing by virtue of the laws of the
State of Delaware. At all times material herein, the principal office and
operating facilities of Respondent and its predecessors, which was originally
the Stromberg Carlson Company from 1930; which became Stromberg Carlson
Company, a division of General Dynamics Corporation; which then became
General Dynamics/Electronics, a Division of General Dynamics Corporation;
and which more recently became General Dynamics Telecommunication, a
Division of General Dynamics Corporation.'
As indicated above,
at all times material herein the principal office and operating facilities of
Respondent and its predecessors have been maintained in Rochester, New York,
and for sometime a facility has been maintained in Rochester, New York, and
for sometime a facility has been maintained by Respondent and its predecessors
in San Diego, California; Respondent is, and at all times material herein, it
and its predecessors have, engaged in the development , manufacture and sale of
electronic communication and radio equipment and products; Respondent's plant
located at 100 Carlson Road, Rochester, New York, is its only facility involved
in this proceeding.
The complaint alleges, the answer admits, and the Trial Examiner finds that:
During the past (12) months, which period is representative of all times ma-
terial herein, Respondent, in the course and conduct of its business operations,
,as set forth . . . above, manufactured, sold and shipped in interstate commerce
to points directly outside the State of New York, equipment and products valued
in excess of $50,000. . During the same period of time, Respondent caused
to be purchased and shipped to its Rochester, New York, places of business di-
rectly from points outside the State of New York, raw materials valued in
excess of $50,000.
Upon all of the foregoing, the Trial Examiner finds that the Respondent herein is
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
District No. 6, International Association of Machinists , AFL-CIO, is a labor
organization within the meaning of Section 2 ( 5) of the Act.
' The name of the Respondent was changed at the hearing herein. See infra.
2 Quoted portions of the above are from the record, at pages 8 and 9 Since the record
is none too clear, the Trial Examiner breaks off the quote from the record at this point,
and thereafter quotes from the Respondent ' s answer.
GENERAL DYNAMICS/TELECOMMUNICATIONS, ETC. 1733
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's business operations
As the Trial Examiner sees it no proper understanding of the issue 3 herein could
be had without a picture, so to speak, of the Respondent's operations at its Roch-
ester, New York, facility. By that observation the Trial Examiner has particular
reference to the geographical location of the Respondent's plant and the surround-
ing area. With that in mind the Trial Examiner is convinced that he should first
set forth the issue herein for the reason that it is so closely intertwined with the
realities of the situation as they were set forth at the hearing herein.
The sole issue is whether the Respondent violated Section 8(a)(1) of the Act
by prohibiting nonemployee organizers for the Union from distributing union litera-
ture on Carlson Road, Rochester, New York, on or about February 14, 1961, and
thereafter.
The record shows that Carlson Road is owned by the Respondent and runs through
its property, from Blossom Road on the south to Humboldt Street on the north, both
of which are public thoroughfares owned, controlled, and under the jurisdiction of the
city of Rochester, Monroe County, New York. At this point the Trial Examiner
calls particular attention to General Counsel's Exhibit No. 2 which is a map of the
Respondent's facilities that we are concerned with herein. The record herein shows
that the issue as regards Carlson Road has been brought to the attention of the
Board's Regional Office in Buffalo, New York, before. At the hearing herein the
Trial Examiner admitted in evidence, without objection from any of the parties,
a copy of a letter to the Regional Office, dated April 7, 1947? Since this letter sets
forth in clear and concise language the history of the Respondent's facilities and in
particular its position as regards Carlson Road over the years, the Trial Examiner
feels that it would benefit all concerned to insert the following excerpt therefrom
herein below:
APRIL 7, 1947.
Re: Stromberg-Carlson Company.
Mr. SALVATORE COSENTINO,
National Labor Relations Board, Third Region,
714 Genesee Building, Buffalo 2, New York.
DEAR MR. COSENTINO: In accordance with the request made by you and Mr.
Isaacson, we are setting forth herewith information relating to your investigation
of the charges of unfair labor practices filed by United Electrical, Radio and
Machine Workers of America, C.I.O. against the above named Company. You
have requested information on specific matters as follows:
1. History of construction of Carlson Road. Carlson Road was built by the
Company in 1924 on 43 acres of land owned by the Company, and the con-
struction of this road was included as a part of the first building contract for
construction of the first building at its present location. Carlson Road is 1600
feet long and 60 feet wide, and runs from Blossom Road on the south to
Humboldt Street on the north, both of which latter named streets are public
streets in the City of Rochester. Carlson Road was named in honor of one of
the founders of the Company. Ever since its construction it has been a private
street, and gate posts were erected at each end of the street. The Company
has discouraged its use as a public thoroughfare by the posting of signs at
either end of the street stating that it is a private street (and these signs have
been posted continuously ever since the street was constructed), and during a
period of time when sufficient manpower was available, chains were stretched
across the entrances during rush periods to prevent outsiders from using the
road. Furthermore, once each year Carlson Road is closed to all traffic for
at least a twenty-four hour period. In addition, approximately three or four
years ago, so that there could be absolutely no question of the private nature
of the road, the City of Rochester posted its own signs at both ends of Carlson
Road, stating that the road is a private road, and these city signs have been
posted continuously since that time. The Company pays all maintenance costs,
including street lighting and taxes. The main factory buildings occupy approxi-
mately one-half of the area on the west side of Carlson Road, and the entire
east side of the road is devoted to parking space for use by employees.
'We are confronted herein with but one issue, which will be obvious to all concerned
as the facts unfold above.
I See Respondent's Exhibit No. 18.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Policy against distribution of circulars. It is not possible to state exactly
when the policy prohibiting the distribution of circulars, samples, or any other
written matter on Company premises, including Carlson Road, was adopted.
However, it is known that this policy was in effect prior to September 1, 1931,
on which date Mr. George Eyer was appointed General Superintendent with
duties involving supervision of all plant properties. Mr. Eyer continued this
policy in effect, and it is still in effect, and the reason for it is that great addi-
tional work problems arose as the result of clearing discarded leaflets from
street, lawn and parking areas. Prior to the war period, the Company did not
employ day time plant protection men and enforcement of the rule was in the
hands of the yard crew. Since early 1942 this responsibility has been dele-
gated to the newly created guard force and still remains with the plant pro-
tection men.
3. Instances of enforcement of no distribution rule. At frequent intervals
throughout the period from September 1931 to the present time permission to
distribute circulars, leaflets and other matter has been denied to numerous
persons and organizations. The following are typical examples of the types
of distribution which have been prohibited: Circulars announcing sporting
events, carnival dates, sales of clothing or of furniture or of tires, circulars
descriptive of personal credit loan plans, sale of box lunches, ice cream suckers,
candy or other wrapped articles. So far as we are aware, no labor organization
has requested the privilege of distributing circulars on Company premises, or
has attempted such distribution, except for the instance involved in the present
charge, which is further discussed in paragraph 5 herein.
The record shows that the Respondent's position at times material herein as
regards Carlson Road is the same as it was in 1947, insofar as its use by the public
is concerned.
Let us now look at the labor relations history of the Respondent. The record
shows that at all times material herein the employees of the Respondent have been
represented by the Rochester Independent Workers, an independent labor organiza-
tion,s for the purposes of collective bargaining and has represented the employees
of the Respondent since sometime before 1940.
Though the record herein is somewhat "hazy," so to speak, as to the "appropriate
unit" of employees represented by R.I.W., it does show that there are 2,981 "employ-
ees in the Union," which the Trial Examiner interprets to mean the "appropriate
unit." The record also shows that at all times material herein the Respondent
employed 4,569 persons at its Carlson Road plant.
According to the credible testimony of Arthur C. Tait, the Respondent's director
of labor relations, 90 percent of the employees at the Carlson Road plant live in
the "Metropolitan area" of Rochester, New York, and the remainder live within a
50-mile radius of Rochester. The estimated population of Rochester, New York,
at times material herein was around 350,000.
The employees at the plant work on three shifts, in accordance with the-following
schedule:
7:00 a.m.- 3:30 p.m.
8:00 a .m.- 4:30 p.m.
8:15 a.m .- 5:00 p.m.
3:48 p.m.-12:18 a.m.
4:48 p.m.- 1:18 a.m.
3:30 p.m.-12:00 m.
4:30 p.m - 1:00a.m.
At the hearing herein the Respondent offered in evidence two "Vehicle and Pedes-
trian Counts" of the traffic in and out of its Rochester facility dated August 8 and
September 5, 1961, respectively, which were admitted without objection by the Trial
Examiner. The charts also contain the number of cars parked on the parking lots
as shown on General Counsel's Exhibit No. 2, which has been referred to above.
In the Trial Examiner's opinion these charts would be helpful to all in visualizing
the traffic problem we are faced with herein. Though none of the parties particu-
larly stressed the traffic problems involved either in their briefs or at the hearing,
nevertheless it is in the record and the Trial Examiner is convinced that he should
take it into consideration in his final disposition of the issue herein. For that reason
he feels that it would be helpful to all to insert the charts referred to hereinbelow.
5 Herein referred to as R.I.W.
GENERAL DYNAMICS/TELECOMI\IUNICATIONS, ETC. 1735
GENERAL DYNAMICS/ELECTRONICS
COMPANY COMMUNICATION
To: A. C. Tait Origin:
From : J. C. Venable City:
Subject : Vehicle and Pedestrian Count Date: 8 August 1961.
Copy To:
A traffic count was made for Mr . Truman Searles on 8 August 1961. A copy
of this memorandum will be incorporated into my final summary report after
5 September 1961 . I am sure you will find these statistics interesting.
Blossom Road-Carlson Road Entrance-6:30 a.m.-8 : 00 a.m.:
Vehicle input------------------------------------------------ 358
Vehicle exit------------------------------------------------- 174
Pedestrians------------------ ------------------------------- 114
Humboldt Street-Carlson Road Entrance-6:30 a.m.-8:00 a.m.:
Vehicle input------------------------------------------------ 478
Vehicle exit------------------------------------------------- 220
Pedestrians ------------------ ------------------------------- 87
Humboldt Gate-6:00 a .m.-8:00 a.m.:
Pedestrians-------------------------------------------------- 235
Vehicles by Parking Lot:
Red---------------------------------------------------- 196
Purple-------------------------------------------------- 131
Brown-------------------------------------------------- 298
Green------------ -------------------------------------- 67
Black----- --------------------------------------------- 405
Yellow------------------------------------------------- 133
Gray------------------- ------------------------------- 105
City transit buses arrived with passengers at:
6:45 a.m. 7:45 a.m.
7:08 a.m. 7:53 a.m.
7:16 a.m. 7:58 a.m.
7:32 a.m.
Total vehicular traffic during the count period-2000; total pedestrians-436
A. C. Tait 8 August 1961
page 2 of 2
It should be noted 432 vehicles remained after entering Carlson Road by
both entrances. Parking lot count of the Red, Yellow, Purple and Gray areas
was 565. The difference of 133 vehicles is due to vehicles on the lots prior to
commencing the count and those entering after 8:00 a.m. The lot count was
not completed until about 9:00 a.m.
JCV: cm
(S) J. C. Venable,
J. C. VENABLE,
Manager of Security.
GENERAL DYNAMICS/ELECTRONICS
COMPANY COMMUNICATION
To: A. C. Tait Origin:
From: J. C. Venable City:
Subject: Vehicle and Pedestrian Count Date: 5 September 1961.
Copy To:
A traffic count was made of vehicles and pedestrians arriving on 5 September
at 100 Carlson Road. The results are set forth herein:
Blossom Road-Carlson Road Entrance-6:30 a.m.- 8:30 a.m.:
Vehicle input------------------------------------------------ 500
Vehicle exit------------------------------------------------- 231
Vehicles remaining------------------------------------------- 269
Pedestrians-------------------------------------------------- 121
Humboldt Street-Carlson Road-6:30 a.m.-8:30 a.m.:
Vehicle input------------------------------------------------ 517
Vehicle exit------------------------------------------------- 222
Vehicles remaining------------------------------------------- 295
Pedestrians-------------------------------------------------- 128
7736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Humboldt Gate-6:00 a.m.-8:30 a.m.:
Pedestrians------------------ ------------------------------- 372
Vehicles by Parking Lot-9:00 a.m.:
Red------------------------ ------------------------ 186 *(217)
Purple---------------------------------------------- 162 *(177)
Yellow---------------------------------------------- 124 *(144)
Gray------------------------------------------------ 103 *(107)
Green----------------------------------------------- 52 *( 64)
Brown---------------------------------------------- 291 *(290)
Black----------------------------------------------- 533 *(847)
* Maximum capacity.
(S) J. C. Venable,
J. C. VENABLE,
JCV: db Manager of Security.
The importance of the above charts will be obvious below in that portion of the
report concerned with the handbilling by the Union on or about February 14, 1961,
and thereafter. Though the traffic checks as shown on the charts were made several
months after the above date, nevertheless the Trial Examiner is convinced that they
give us a picture of the traffic situation at the Respondent's Rochester facility, which
the record indicates varied but little over the period of time we are concerned with
herein, that is from February 14, to shortly before the date of the bearing herein,
September 19, 1961.
The Union started its organizational campaign among the Respondent's employees
sometime in 1958. For the most part it consisted of personal contacts with small
groups of employees at their homes and the mailing of literature to a limited num-
ber. This was due to the fact that it did not have a complete list of the employees
of the Respondent. The record also shows that the Union did not at any time
material herein advertise its campaign either by TV, radio, or through the local
newspapers. Nor did it resort to passing out handbills until February 14, 1961,
supra. As the Trial Examiner sees it the following incidents led up to its decision
to engage in the activities we are concerned with herein.
Sometime in the early part of January 1961, the Respondent granted permission
to the R.I.W. to distribute its newspaper to the employees in the unit at the exits
from the parking lots, which as indicated above are located on the Respondent's
property.6 The distribution was made by employees of the Respondent on non-
working time.
According to the record, the Union, sometime before February 14, 1961, requested
permission from the Respondent to distribute literature to the employees on company
property. The Respondent denied their request. Shortly thereafter the Union
started handbilling the employees in the mode and manner described below.7
According to the credible and uncontradicted testimony of the General Counsel's
witnesses, the Union started its handbill campaign at the Respondent's Rochester,
New York, facility on the morning of February 14, 1961, at or about 6 a.m. As
the Trial Examiner interprets the record, the campaign was in charge of Bruce Wilson,
a grand lodge representative of the Union. According to Wilson he had 18 or 20
members of the Union stationed at several entrances to the Respondent's property
to pass out the handbills. They were stationed as follows: six at the corner of
Blossom Road and Carlson Road, three of which were on the west side and three
on the east side of Carlson Road; six were stationed at the junction of Humboldt
Street and Carlson Road, with three on the west side and three on the east side
of Carlson Road. All were standing about 10 or 15 feet inside the Respondent's
property on the sidewalks on Carlson Road. None of the handbillers were
employees of the Respondent. Others were stationed at the "Humboldt Street Gate"
and the "Building 8 gate" which are entrances to the plant directly from Humboldt
Street, which as indicated above is a public street.8
The handbillers who were stationed at the Humboldt Street and Blossom Road
entrances to Carlson Road were ordered off the Respondent's property by its
"Security Police" shortly after they started to pass out the handbills. At sometime
See General Counsel's Exhibit No. 2, particularly the locations of the parking lots on
the east side of Carlson Road. They are designated on the map as red, yellow, purple,
and gray.
The record shows that the Respondent denied a similar request from the International
Union of Electrical Workers, AFL-CIO, a few months before the incidents involved herein
occurred.
8 See General Counsel's Exhibit No. 2, where marked "Humboldt Street Gate" and
"Building 8 Gate."
GENERAL DYNAMICS/TELECOMMUNICATIONS, ETC. 1737
during the handbilhng activity at Blossom Road and Carlson Road, members of
the Rochester police force appeared on the scene and warned the handbillers to
stay off Carlson Road because it was private property.
The record also shows that one of the primary reasons for having the handbillers
report at 6 a in. was because at that time the traffic into the Respondent's plant was
one way, since the first shift goes on duty at 7 a.m. The next shift starts at 8 a.m s
Thereafter, as the shifts change there is two-way traffic on Carlson Road, and it
would have been too hazardous for the handbillers to attempt to contact the
employees This is particularly true because most of the employees either drive
to work in their cars or ride with others. The charts set forth above show that very
few employees walk to work via Carlson Road. From the foregoing it is obvious
that the employees who entered Carlson Road by car would have to stop their cars
or at least slow them down to take the handbills from the "passers" stationed near
the intersections Adding to this hazard was the weather which according to
several of the General Counsel's witnesses was "cold " Consequently the passengers
in the cars had to open the car windows to get the handbills. This of course added
to the traffic congestion during the time involved herein All of these factors should
be considered in the light of the traffic charts which have been inserted herein above.
For this reason the Trial Examiner sees no point in elaborating on the traffic problem
involved herein at this stage of the report.'0 Suffice to say that the charts set forth
above, and the fact that the winter of 1961 particularly in February was very severe
in the Rochester, New York, area, is sufficient to give us a picture of the problems
faced by all of the parties involved herein at the time the handbills were distributed."
The handbillers who were stationed on Humboldt Street at the entrances to the
Respondent's property designated as "Humboldt Street Gate" and "Building 8 Gate"
were not molested by the security police. This was because Humboldt is a public
street. According to the record, including the charts set forth above, about 121h
percent of the Respondent's employees enter the plant through the Humboldt Street
gate.
The Union also used handbillers on the buses that serve the Respondent's property
via Carlson Road. According to the credible testimony of Anne T. Nick, one of the
handbillers, she passed out handbills to the passengers on the buses that serve the
plant. According to the record the buses make three stops on Carlson Road. She
also testified that she engaged in the handbilling on Carlson Road on the morning
of February 14, 1961. In the course of her activities in this regard she attempted
to pass out handbills to the occupants in the cars that were on Carlson Road and was
stopped by the security police, who told her that she was "tying up traffic." Her
testimony in this regard, when considered in the light of that of other handbillers,
was the predicate for the Trial Examiner's comment above as regard the serious-
ness of the traffic hazard to all concerned herein at the time and place that the
handbillmg occurred on the morning of February 14, 1961.
To the Trial Examiner at least one of the most interesting incidents that occurred
on the morning of February 14, 1961, was the refusal of the security police to permit
two of the union organizers to walk on Carlson Road with the handbills under their
arms, shortly after the attempted distribution described above was over. According
to the credible testimony of Daniel R. Webb, business representative of the Union,
and whom the record indicates was in actual charge of the distribution of the hand-
bills on the morning in question , he and Gordon Poole, one of the organizers, started
down Carlson Road from Humboldt Street to where his car was parked, and were
stopped by the security police for reasons shown below in the following excerpt
from his testimony in this regard.
Q. During these mornings you were handbilling at Carlson Road, did you
ever talk to anyone from the security force?
A. Yes
Q. Do you remember about when it was?
A. Exact-no.
Q. Can you tell me what the circumstances were and what was said to whom?
A. Well, I wanted to walk through.
See sups a for shift schedules at the plant
10 See infra for further comment in this regard.
11 Though there is no evidence in the record as regards the weather on the morning in
question, nevertheless it was in the middle of February 1961 , and all of us recall "the
winter of '61," which was front page news all over the country. In the circumstances
the Trial Examiner cannot ignore the time honored maxim that ". . . what we know as
men, we cannot ignore as triers of the facts" (which has been attributed to the late
Justice Learned Hand).
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Where were you?
A. I was on the road-I believe the north end. I don't have the map.
TRIAL EXAMINER: Please speak up and keep your hand away from your
mouth.
A. (Continuing.) I was here [indicating] on Humboldt Street.
Mr. McNAMARA: Let the record show that the witness is pointing to the
corner of Humboldt and Carlson-right there [indicating] near Exec. 41,
which I think would be the southwest corner.
Q. (By Mr. McNAMARA.) And what happened?
A. I wanted to walk from there down Carlson Road over to Blossom Road
where my car was and the security guard there
Q. Where was the security guard?
A. He was about 15 feet inside Carlson Road.
Q. Did you say anything to the security guard or did he say anything to you?
A. He said I couldn't go in there with the handbills under my arm. He said,
"Put the handbills down and you can go to your car" and that is what I did.
Q. Was anyone with you?
A. Yes-Gordon Poole.
TRIAL EXAMINER: Let's get this right. Is the witness talking about walking
down Carlson Road-not inside the grounds from the road but on the road?
Is there a sidewalk there?
The WITNESS: There is a sidewalk there.
TRIAL EXAMINER: Carlson Road from Humboldt to Blossom-is there a
sidewalk there?
Mr. McNAMARA: Mr. Tait testified there is a sidewalk on both sides.
TRIAL EXAMINER: That is right. As I understand it, he told you that you
couldn't carry your handbills from Humboldt Street over to Blossom Road?
The WITNESS: That is right.
TRIAL EXAMINER' When you gave them up, then he let you walk?
The WITNESS: That is right.
Webb also testified as regards the traffic situation on Carlson Road on the morning
of February 14, 1961. The importance of his testimony in this regard will be
apparent in the excerpt therefrom which follows below:
Q. Did you observe on these mornings the traffic on Blossom Road?
A. Pardon?
Q. The traffic entering Carlson Road from both Blossom Road and Humboldt
Street?
A. Yes.
Q. How was the traffic?
A. At Blossom and Carlson-very heavy.
Q. How about Carlson and Humboldt?
A. It wasn't as heavy there as at Blossom and Carlson.
Q. Did you observe a tie-up?
A. At Blossom and Carlson-yes.
Q. You said it was approximately 7:30 the first morning the police came?-
7:30 the first morning you handbilled?
A. Yes.
Q. Did they say anything to you?
A. Just my name and address.
Q. They took your name?
A. That is all.
Mr. McNAMARA: No further questions.
TRIAL EXAMINER: Any Recross?
RE-CROSS-EXAMINATION:
Q. (By Mr. SEARLE.) In your handbilling activity, was it confined to just
vehicles or did you attempt to pass out literature to anybody who entered-
whether walking or in a car?
A. Either way-car or walking.
Q. The traffic situation you mentioned at Carlson and Blossom-was this a
result of handbilling or would you say it would have been the same kind of
situation without handbilling?
A. Well, I'd say it was a bad situation either way and the handbillers there
make it that much worse.
Q. You mean the cars stopping to receive the handbills causes a greater tie-up?
A. Yes. [Emphasis supplied.]
GENERAL DYNAMICS/TELECOMMUNICATIONS, ETC. 1739
The Trial Examiner has pointed out above that the Union continued its hand-
billing at the entrances to the Respondent's plant until shortly before the hearing
herein. The record is none too clear in this regard; however, the Trial Examiner
is convinced after a careful check of the record and the briefs of the parties that the
handbills during this period were distributed to employees on Humboldt Street and
Blossom Road near the entrances to Carlson Road, and on the city buses that service
the plant.
The Trial Examiner has referred to "Humboldt Street Gate" and "Building 8
Gate" above on several occasions, particularly as regards the handbillers stationed
at those entrances to the plant. Though the record shows that there is another
entrance to the plant on Humbolt Street, which is designated on General Counsel's
Exhibit No. 2 as "Radio Center Gate," there is little if any substantial evidence in
the record as to the number of employees who use it to enter the plant. For exam-
ple the charts set forth above do not even refer to it. In the circumstances the
Trial Examiner sees no necessity for further comment as to its role in the incidents
we are confronted with herein.
Another factor that is none too clear in the record is the number of employees
who rode the city buses to work. As indicated above Anna I. Nick, a nonemployee
of the Respondent, who passed out union literature during the campaign on the city
buses that service the plant via Carlson Road, offered no information in this regard
during the course of her testimony at the hearing herein. Consequently the only
probative testimony in this regard is found in the chart of incoming and outgoing
traffic at the plant dated August 8, 1961, which shows that seven buses service the
plant each day between 6:45 and 7:58 a.m., which is the period of time we are
primarily concerned with herein.
A further factor that is not disclosed by the record herein, is the contents of the
handbills. While to most folks this would be considered of little if any importance,
nevertheless, to the Trial Examiner at least it has some importance for reasons
discussed below. In the first place did they contain any statements derogatory to
the Respondent's labor relations policies or as regards its products? Presumably
they did not, because the Respondent surely would have seized upon this factor at
the hearing herein as a defense to the allegations in the complaint. The only reason
the Trial Examiner mentions this possibility is because Tait in the course of his
testimony cited as one of the reasons the Respondent prohibited handbilling of
any kind was because somebody in the past attempted to distribute handbills on its
property that were critical of its Hi-Fi equipment. Another reason the Trial Exam-
iner has brought this question up is because in many of the cases cited by the
parties in support of their respective positions, the Board and the courts have
repeatedly pointed out that employees are entitled to receive information as regards
their rights under the Act. Since the record is silent in this regard, the Trial
Examiner deems further comment unnecessary. Suffice it to say that it cannot be
said that he disregarded this potentiality in reaching his ultimate decision herein.
CONCLUSION
The sole issue involved herein is well stated in the General Counsel's brief; "Where
a company road is used as a public thoroughfare as well as an access road to the
Employer's plant, may the Employer prohibit nonemployees distribution of literature
thereon?"
It is well settled that no-solicitation or no-distribution rules which prohibit union
solicitation or distribution of union literature by nonemployee union organizers at
any time on the employer's property are presumptively valid, in the absence of a
showing that the union cannot reasonably reach the employees with its message
in any other way, or a showing that the employer's notice (or position) discriminates
against the union by allowing other solicitation or distribution.12
As indicated above there are exceptions or modifications to the "presumptive valid-
ity" of such rules particularly in a situation where an employer permits distribution
of union literature on its property by other labor organizations such as we are con-
fronted with herein. To be sure the literature distributed by the R.I.W. was made
by employees of the Respondent on nonworking time; but it was done on company
property at the exits from the parking areas.13 On the considered opinion of the
Trial Examiner this eliminates any possible contention by the Respondent that the
activities of the Union at or near the entrances to and exits from Carlson Road con-
stituted a traffic hazard. As a matter of fact the Respondent in its brief has specifi-
''Walton Manufacturing Company, 126 NLRB 697
13 See General Counsel's Exhibit No. 2-at the dividing lines between the red, yellow,
purple, and gray parking lots on the east side of Carlson Road.
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally rejected such a contention, in the face of testimony by the General Counsel's
witnesses as regards the traffic hazard the handbillers encountered on the morning
of February 14, 1961, particularly at Blossom Road and Carlson Road.14 Quite
frankly the testimony in the record as regards the traffic conditions at Blossom
Road and Carlson Road on the morning in question has caused the Trial Examiner
grave concern in arriving at his ultimate conclusion and findings as regards the issue
herein. However in view of the Respondent's position as set forth in its brief he
sees no necessity for further comment in this regard. Suffice it to say that he is
convinced and finds that the real hazard was when the handbillers attempted to slip
into Blossom Road and hand the handbills to the occupants of the cars at or near
the entrance to Carlson Road. A controlling factor in his finding in this regard is
the fact that Blossom Road is a public thoroughfare and obviously there would be
traffic both east and west by the public at the point where the employees of the
Respondent turned into Carlson Road on their way to work.
The Trial Examiner has found above that the Respondent did not interfere with
the handbilling at the "Humboldt Gate," "Building 8 Gate," and the "Radio Center
Gate." According to the record, approximately 12 percent of the employees entered
the plant through these gates at times material herein.
He has also found above that the Union did not advertise its campaign to unionize
the Respondent's employees at the Carlson Road plant either by radio, TV, or
through the local newspapers. As he sees it the Union relied on personal contacts
with the employees throughout its campaign until the handbilling on February 14,
1961, and thereafter. Though the record contains no evidence that the costs of
advertising its campaign via TV, radio, and the local newspapers were prohibitive,
nevertheless it is a matter of common and notorious knowledge that the owners and
operators of such mediums of communication usually charge a fee for their services.
Presumably that is true here, and the Trial Examiner so concludes and finds.
In the Trial Examiner's opinion, the Board summed up the distinction between
the presumptive validity of rules forbidding the distribution of literature on an
employer's property and in situations such as we are faced with herein, where other
labor organizations are permitted to do so by an employer promulgating such a rule,
in the following footnote in the Walton case.
N.L.R.B. v. The Babcock cE Wilcox Company, supra, where the Supreme Court
held that "an employer may validly post his property against non-employee dis-
tribution of union literature if reasonable efforts by the union through other
available channels of communication will enable it to reach the employees with
its message and if the employer's notice does not discriminate against the union
by allowing other distribution " In so holding, the Court set forth the following
rationale ,and rules: "Here the Board failed to make a distinction between rules
of law applicable to employees and those applicable to non-employees. The
distinction is one of substance. No restriction may be placed on the employees'
right to discuss self-organization among themselves, unless the employer can
demonstrate that a restriction is necessary to maintain production or discipline.
Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803. But no such obligation
is owed nonemployee organizers. Their access to company property is governed
by a different consideration. The right of self-organization depends in some
measure on the ability of employees to learn the advantages of self-organization
from others. Consequently, if the location of a plant and the living quarters of
the employees place the employees beyond the reach of reasonable union efforts
to communicate with them, the employer must allow the union to approach his
employees on his property. No such conditions are shown in these records."
[Emphasis supplied.]
Applying the foregoing to the fact that the Union had endeavored without success
to reach the approximately 3,000 employees of the Respondent in the appropriate
unit by personal contact for several months preceding the handbilling on February
14, 1961, to the further fact that Carlson Road was, to the public at least, a public
thoroughfare, then the Trial Examiner is convinced that we should look to the
Marshall Field case for an answer to the issue herein. In that case the Board held,
inter alia , as follows.15
that the Respondent's ban on solicitation in the "private street" running
out of doors on the Respondent's premises is unlawful. This private street,
Holden Court, traverses the center of Respondent's store at street level. It is
open to the public for pedestrian use. The record contains no cogent reason
for denying employees the right to solicit or be solicited for union membership
is See supra.
25 Marshall Field & Company, 98 NLRB 88, 93.
SAFEWAY STORES, INCORPORATED 1741
when of) duty in this area , unlike the case of internal facilities such as aisles,
corridors , escalators , stairways , and elevators , all of which are adjacent to selling
areas.
In view of the Board 's holding in the Marshall Field case and the fact that the
Respondent granted permission to the R.I.W. to distribute literature on its property
a few weeks before the Union herein started its handbill campaign among the Re-
spondent 's employees , the Trial Examiner is convinced and finds upon the record
considered as a whole that the Respondent by engaging in the conduct described
above violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close , intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner 's recommended order will direct it to cease and desist from the
unfair labor practices herein found , and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material herein , engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is, and has been at all times material herein , a labor organization
within the meaning of Section 2 (5) of the Act.
3. By promulgating and enforcing a rule prohibiting nonemployee union organizers
from soliciting employees by distributing literature to employees on behalf of a
union on the employees ' own time in an area open to and used by the public , during
the same period of time that it was permitting employees on their nonworking time
to distribute union literature to its employees on nonpublic areas of its facilities,
thereby interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Safeway Stores , Incorporated and Local 37, Bakery and Con-
fectionery Workers International Union of America, Peti-
tioner. Case No. 21-RC-7448. July 30, 1962
DECISION ON REVIEW AND ORDER
On December 27, 1961, the Regional Director for the Twenty-first
Region issued a Decision and Order dismissing the petition in the
above-entitled proceeding. Thereafter, the Petitioner, in accordance
with Section 102.67 of the Board's Rules and Regulations, Series 8,
as amended, filed with the Board a timely request for review of such
Decision and Order on the ground that a substantial question of law
or policy was raised because of a departure from Board precedent.
137 NLRB No. 187.