Meier & Frank Co.

National Labor Relations Board - Board Decisions

Jul 28, 1972

198 N.L.R.B. 491 (N.L.R.B. 1972)

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