Lee Wards

National Labor Relations Board - Board Decisions

Oct 6, 1972

199 N.L.R.B. 543 (N.L.R.B. 1972)

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