Scholle Chemical Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 724 (N.L.R.B. 1971)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scholle ; Chemical Corporation, Scholle Container
Corporation, Scholle Northlake , Corporation,
Scholle Atlanta Corporation , Scholle Dallas Corpo-
ration, Scholle Long Beach Corporation, and
Scholle Ridgefield Corporation and Oil, Chemical
& Atomic Workers International Union, AFL-CIO.
Case 13-CA-9501.
August 18, 1971
DECISION AND ORDER
On August 11, 1970, Trial Examiner Milton Janus
issued his Decision in the above-entitled proceeding,
finding that the Respondents, Scholle Chemical,
Container, and Northlake, had engaged in and were
engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Examiner's
Decision and a supporting brief and the General
Counsel filed an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondents, Scholle Chemical Corporation,
Scholle Container Corporation, and Scholle North-
lake Corporation, Northlake, Illinois, their officers,
agents, successors , and assigns, shall take the action
set forth in the Trial Examiner' s recommended
Order.2`
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges the
commission of unfair labor practices by Scholle
Atlanta Corporation, Scholle Dallas Corporation,
Scholle Long Beach Corporation, and Scholle Ridge-
field Corporation.
CHAIRMAN MILLER, concurring in part and dissenting
in part:
Like my colleagues, I agree that the Respondents'
1 The Respondents' request for oral argument before the Board is
hereby denied as the record and briefs adequately present the issues and
positions of the parties.
2 In footnote 8 of the Trial Examiner's Decision, substitute "20" for
representatives exceeded the: limits of permissible
conduct by escorting nonemployee' union organizers
across property'owned by Automatic Electric Compa-
ny to the public domain along North Avenue, near the
Respondents", plant. However,' I am not prepared to
say that the Respondents violated the Act by ,refusing
the :Union 'access to its own property,, asthere has
been no showing that access to,the Scholle.property
itself is the only reasonable means of reaching Scholle
employees. Nor, am I constrained to decide, in the
circumstances of this case , whether the`Union's right
of access to the employees it seeks to organize is
paramount to the right of Automatic Electric to
exclude such nonemployee union organizers from its
property -under principles established in Babcock &
Wilcox. 3
The facts are uncomplicated and are not in dispute.
The Respondents' plant is located in a suburb of the
Chicago metropolitan area . Access to this plant can
be gained only by means of a three-lane road which is
owned and maintained by Automatic Electric Com-
pany, another employer with a place of business on
the same industrial tract .4 The Respondents and the
other employers located on this tract and their
business invitees and guests use the access road,
known as Railroad Avenue, pursuant to an easement
granted by Automatic Electric. The latter permits no
advertisement or solicitation of any kind on Railroad
Avenue, which has never been dedicated to any public
use. However, there is no evidence that the employers
using Railroad Avenue, including Scholle, have any
authority or responsibility to enforce against others
these restrictions established by Automatic Electric.
Vehicular traffic over the road extends only between
the public, thoroughfare, known as North Avenue, and
the places of business located on the industrial tract.
The intersection of Railroad and North Avenues is
less than 500 feet from the Respondents' plant which
is clearly visible from that point. A 50-foot strip of
unpaved, state-owned land runs alongside North
Avenue, between it and the Respondents' property.
On October 30, 1969, the Union decided upon a
campaign to organize the Respondents' employees.
On the following day, two union representatives
entered the Respondents' property and began to
distribute campaign materials and solicit employee
support. They were interrupted by the Respondents'
officials who escorted them past Railroad Avenue to
the public domain along North Avenue and advised
them that entry onto both their property and Railroad
Avenue is forbidden to the general public. Thereupon,
the Union, having come to the conclusion that it
"l0" days.
3 N.L.R.B. v. Babcock & Wilcox Company, 351 U.S. 105 (1956).
4 See diagram, appended hereto.
192 NLRB No. 101
SCHOLLE CHEMICAL CORP. 725
would not be "feasible" to engage in organizing
activities on public property at or near the intersection
of North and Railroad Avenues , requested permission
from the Respondents to enter upon their property for
that purpose . The Union's request was denied. The
record does not indicate whether the Union made a
similar request of Automatic Electric , nor was the
record likely to, as Automatic Electric was not joined
as a party respondent in the instant proceeding.
In my view, this failure ,to join Automatic Electric
prevents the Board from answering a central question
in this case : namely, what constitutes reasonable
access to employees which a union must have in order
that employees may exercise their rights under the Act
and, accordingly, to what extent, if any, must property
rights be circumscribed in order to obtain an
accommodation between these opposing rights with
as little destruction of the one as is consistent with the
maintenance of the other.
This leaves for determination the question of the
Respondents' conduct in asserting dominion over
Railroad Avenue by excluding nonemployee organiz-
ers therefrom. No right to engage in such conduct
devolves on the Respondents fpm any acknowledged
source. I would find that, by so acting , the Respon-
dents exceeded the limits of permissible conduct and,
by thus interfering - with employees' rights to self-
organization, violated Section 8(a)(1) of the Act.
Accordingly, I would prohibit the Respondents from
themselves interfering with nonemployee union or-
ganizers who solicit or distribute campaign materials
along Railroad Avenue beyond the confines of the
Respondents ' property.
MEMBER KENNEDY , concurring in part and dissenting
in part:
I agree with Chairman Miller's conclusion that
Respondents violated Section 8(a)(1) by excluding
nonemployee organizers from Railroad Avenue. I
would reverse, however, the finding of the Trial
Examiner that Respondents interfered with the
statutory rights of employees by prohibiting distribu-
tion and solicitation by nonemployee organizers on
Respondents' property. The Supreme Court held in
Babcock & Wilcox, 351 U.S. 105, that an employer
could validly post his property against nonemployee
distribution of literature if reasonable efforts by a
union through other available channels of communi-
cation would -enable it to reach employees with its
message. The record herein demonstrates that the
Union in fact has reasonable access to the employees.
The Trial er found that during the period from
January 28, 1970, through March 30 , 1970, the Union
had compiled a mailing list of about 220 of the
approximately 350 hourly paid employees of the
Respondents . The record includes a letter addressed
by the Union to Respondents ' employees on March
30,1970, in which the Union stated: "A good move on
our part would be to have 75 to 80 % of the employees
signed up and at the trial [on the complaint herein]
demand recognition. The National Labor Relations
Board might well order Scholle to recognize Oil,
Chemical and Atomic Workers as the exclusive
bargaining agent for you employees at that time."
Under these circumstances , it is difficult to conclude
that the Union had no effective means of reaching the
employees with its message . The General Counsel, in
my judgment, has not met the burden of showing that
the Union was deprived of reasonable access to the
employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANus, Trial Examiner: Oil, Chemical & Atomic
Workers International Union , AFL-CIO (hereafter called
the Union or the Oil Workers), filed its original charge on
December 3, 1969 , against Scholle Chemical Corporation,
an amended charge on January 16, 1970, adding Scholle
Container and Scholle Northlake as additional named
employers, and a second amended charge on February 18,
1970, adding the other four employers listed in the caption
of this case . The original complain based on the charge
and the first amended charge, was issued on January 19,
1970. On March 3,1970, an amended complaint was issued,
based on the second amended charge. The amended
complaint alleges three specific violations of Section 8(a)(1)
of, the National Labor Relations Act, herein the Act, by the
Respondents . On the last day of the hearing, the General
Counsel moved to amend the complaint to, add another
instance of a violation of Section 8(a)(1), which I denied for
reasons to be explained later.
I conducted a hearing in this matter at Chicago , Illinois,
on April 28 and 29, and on May 12,1970. After the hearing,
the General Counsel and the Respondents filed a motion to
correct the transcript in two respects . The motion is. hereby
granted. The General Counsel and the Respondents also
filed briefs, which I have considered in my determination of
this matter.
Upon the entire record in this case , and from ,my
observation of the witnesses and their demeanor, I make
the following:
Fn nn.Ios OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The seven corporations named in the amended complaint
are duly organized and authorized to do business by the
laws of State of Illinois . Scholle Chemical is engaged in the
manufacture and We of nitrocellulose base solution and
other related products. It and two other of the corporations,
Scholle Container and Scholle Northlake, are the only
Scholle entities which employany hourly paid employees at
the plant which they occupy in Northlake, Illinois. The
three corporations have the same directors , president,
executive vice president , secretary and treasurer , as well as
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same personnel manager who administers a common
labor relations policy on their behalf.
During ; the past calendar- year, Respondents have
manufactured and shipped goods and products valued in
excess of $50,000 from Northlake, Illinois, to points outside
the,State of Illinois, and have purchased and had delivered
to the, Northlake plant goods and materials valued in excess
of $50,000 from States other than Illinois.
Based on the foregoing, -I find that Scholle Chemical,
Scholie Container, and Scholle Northlake constitute a
single employer which is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
I shall hereafter refer to these three corporations
collectively as Scholle, and when they need to be
differentiated, as Chemical, Container, and Northlake. As
the other four corporations had no hourly rated employees
at the Northlake plant, and as the General Counsel has not
shown their participation in, or their connection with, the
events described below in any manner, I hereby grant the
motion' of'Respondent's counsel to dismiss the complaint as
to them.
11. THE LABOR ' ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Complaint and the ' Issues
The complaint alleges that Scholle violated Section
8(a)(1) by ( 1) interfering with union officers and agents who
were distributing literature to Scholle employees at the
entrance to its plant and parking lots on October 31, 1969;
(2) by threatening, on the same date, the union officers and
agents with arrest and prosecution for trespass if they
persisted in distribution of literature and solicitation of
employees at the location described above; and (3) by
refusing, in 'a letter of December 2, 1969, a request of a
union official for permission to distribute union literature
at the Scholle plant'entrances.
'The only access to the Scholle plant and its parking lots is
through a private road owned and maintained by another
employer in the area, Automatic Electric Company. That
company prohibits all solicitation or distribution of
material on its private road. The question to be decided is
whether, under the circumstances here, Scholle may validly
deny to nonemployee union organizers access to its
property for purposes of distribution 'of literature and oral
solicitation of its employees.
Railroad Avenue and its Adjacent Area
The Scholle plant is located in Northlake, Illinois, a
suburb of ' Chicago, close to the intersection of North
Avenue and Railroad Avenue. North Avenue is a major
thoroughfare and state route running east and west through
Chicago and certain of its western suburbs. It has a posted
speed limit of 40 miles per hour. Its average traffic load in
x The lots can also be entered from Wolf Road , a public road east of the
Automatic Electric plant and parallel with Railroad Avenue . The lots are
closed off during hours when employees are not entering or leaving the
both directions is about 38,000 vehicles per day. The private
road owned by Automatic Electric is known as Railroad
Avenue. It runs north of North Avenue, perpendicular to it,
and dead-ends into the parking lots of Automatic Electric.
Railroad Avenue is a paved, three-lane highway, posted for
a 30- mile-per-hour speed limit. There are traffic control
lights at the intersection of North and Railroad Avenues.
Traffic and other signs on Railroad Avenue are owned by
Automatic Electric.
The Scholle plant area is on the west side of Railroad
Avenue. Between North Avenue and the Scholle plant
buildings is an unpaved strip of state-owned property about
50 feet wide, an unpaved strip of Scholle property about
170 feet wide, and a parkinglot about 100 feet wide. These
are all south of the plant. North of it is another Scholle
parking lot, while in front of the plant and its main
entrance, facing Railroad Avenue, is another parking area
for about 30 cars. Behind the Scholle property on the west
are railroad tracks, running parallel with Railroad Avenue.
Also on the west side of Railroad Avenue and to the
north of the Scholle property are buildings and parking
areas of three other employers. On the east side of Railroad
Avenue but without access to it is a residential area, and
immediately north of that is the plant and parking lots of
Automatic Electric.
Scholle employes about 350 people at its Northlake plant
and Automatic Electric about 11,000, most of whom arrive
and leave by private automobile. The official of Automatic
Electric who is in charge of plant engineering and security,
including supervision of its parking lots, estimated that
about 40 percent of its employees use Railroad Avenue in
entering or leaving the parking lots.' -
Of Automatic Electric's factory and office employees,
about 7,600 work on the day shift, with starting times
staggered from 6:30 to 8:30 a.m. That shift leaves from 3 to
5 p.m., just as the second shift of about 1,800 employees
comes to work. A smaller third shift reports from 11 p.m. to
12:30 a.m., and leaves as the day shift comes in.
Of the Scholle entities, Chemical and Northlake operate
only a day shift, from 7:30 a.m. to 3:50p.m., with about 50
employees, while Container has 3 8-hour shifts and a fourth
overlapping shift of about 6 hours, which together employ
about 300 workers. Container day-shift employees number
about 130.
Thus, Scholle's employees on all-shifts report to and leave
work in the stream of those Automatic Electric employees
who use Railroad Avenue in coming to and leaving work.
Taking the day shift as representative for all shifts, the
Scholle employees who turn off North Avenue onto
Railroad Avenue in their private cars are a small'
percentage of the total traffic carried by that road, roughly
180 as compared to about 3,000, the number of Automatic
Electric day shift employees who use Railroad Avenue.
There is no way to distinguish the two groups as their 'cars
turn north 'onto North Avenue from both directions, to
enter ''Railroad Avenue. Furthermore, as the day shifts end
and the second shifts report, it is obvious that many
plant, so vehicles are unable to use them as a link for any through
movement df traffic via Railroad Avenue.
SCHOLLE CHEMICAL CORP.
hundreds of cars are entering or leaving Railroad Avenue
within a relatively short period of time.
The Union's Efforts to Organize Scholle
Employees
Attempts at Handbilling
Hall, an International Representative of the Union, met
two Scholle employees on October 30, 1969, to discuss
possible organization, and it was decided that Hall would
distribute some union literature at the plant. Hall and
another Union representative, Ryan, arrived at the plant
the next day about 3 p.m. Hall stood near the plant's main
entrance, in the small parking area directly in front of the
building, while Ryan stood at the entrance to the north
parking lot. They spoke with employees and passed out
envelopes containing a handbill and authorization card for
5 or 10 minutes when several men came out of the main
entrance to talk with Hall. One of them was Pettinger,
Scholle's personnel manager, who, after some preliminary
conversation, advised Hall that Railroad Avenue was a
private road and that distribution of literature was
prohibited on it. Another man, Mascarella , a Scholle
supervisor, then approached and repeated that Railroad
Avenue was a private road. Mascarella is a part-time officer
in the Northlake Police Department, and in response to
Hall's vocal doubts that Railroad Avenue was private,
showed him his police badge. There is some conflict in the
testimony of Hall, on the one hand, and Pettinger and
Mascarella on the other, as to whether the latter threatened
Hall with arrest for trespass, intimated that trespassers were
subject to arrest, or merely identified himself and directed
Hall to the Northlake town hall where he might satisfy
himself that Railroad Avenue was a private road.
In any event, Hall and Ryan left the parking area and
stood on the 50-foot strip of unpaved State property at the
northwest intersection of North and Railroad Avenues to
assess the feasibility of handbilling from there. They felt it
would not be productive because of the heavy traffic on
Railroad Avenue and the impossibility of telling which of
the cars passing by contained Scholle employees.
Hall met again with his two employee contacts on
November 6 and reported his lack of success. He asked
them about arranging a meeting with other employees and
about obtaining a mailing list. One of the employees
suggested that he come out to the plant early on Veteran's
Day, when officials might not be around. Hall did so from
6:30 to 7:30 a.m., stood near the plant entrance, and was
able to pass out about 120 handbills. Two days later Hall
again met his employee contacts who brought him an old
Christmas mailing list, which they decided was useless
because it was out of date and contained mainly
supervisors' addresses.
On November 21, Hall sent Scholle a letter requesting
access to the plant entrances for distribution of leaflets, and
on December 2 Pettinger responded, asking him to refrain
from using the private road (Railroad Avenue) for
distribution. Pettinger also pointed out that "traffic
conditions are intense on this road during the hours of
change of shift," something which Hall had already
discovered for himself on October 31. Pettinger also noted
727
that in the past organizers and picketers had respected the
private ownership of the road and had remained on the
public domain of North Avenue., Pettinger closed his letter
by a formal offer of further assistance or information if
needed. On January 12, Hall again wrote Pettinger asking
him to supply the Union with a list of names and addresses
of all current hourly rated Scholle employees, but he never
received an answer.
Hall did not go out again to the plant until April 21, 1970,
when Automatic Electric employees were on strike. Hall
figured he would therefore be able to -contact only Scholle
employees. He stood on the public area, just at the
intersection of North and Railroad Avenues, trying both
the east and west sides of Railroad, Avenue for over 2 hours,
overlapping shift changing time. He was unable to get
anyone to stop or to accept a handbill. Hall tried again the
next morning at the same spots but was able to get only 5
handbills accepted out of the hundreds of cars passing by.
Mailings to Employees
As of December 5, 1969, Hall had obtained only 12
signed authorization cards. On that date, he sent letters to
the card signers, telling them that he had filed charges with
the Board and that he would be phoning them soon in order
to arrange to meet them. As a matter of fact, Hall did call
all of them but was never able to get to'see anyone except
his two original employee contacts.
On January 28, 1970, Hall sent a letter to about 40
employees asking them for help in compiling a complete
mailing list of employees, enclosing an authorization card
and self-addressed envelope. The same letter was later
mailed to additional employees. On February, 12, Hall sent
another letter, this time to about 70 employees, saying that
their names had been suggested by a fellow employee, as
being possibly interested in organization, and again
enclosing authorization cards. On February 24, Hall sent
another letter to 120-150 Scholle employees, inviting them
to sign cards and asking for the correct. addresses of 16
named employees, previous letters to whom had been
returned. On March 30, Hall sent another, letter to 200-220
employees, again enclosing authorization cards and asking
for names and addresses of other employees.
There is no evidence in the record as to how Hall came
into possession of the names and addresses of those to
whom his letters from January through March were mailed,
but it is probable that they came from the letter
solicitations. Hall testified that he was never sure of the
accuracy either of their names or addresses, and it is
obvious that some of the addresses were in fact incorrect.
On the other hand, I must assume that as the mailings
became larger, more employees in fact were being reached
by that mmans. At best, however, Hall was never able to get
the names and addresses for more than about 220
employees out of 350 and could not be certain how many of
these were correct.
Of the Scholle employees about 27 percent live in
Northlake, the town where the plant is located. About 58
percent live in other Chicago suburbs, and 15 percent live in
Chicago.
728 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Other Possible Means of Reaching Employees
The Respondent introduced evidence to show that
service and charitable organizations , such as the Kiwanis
Club, have used the intersection of North and Railroad
Avenues to sell articles to , or to solicit contributions from
passing motorists, using solicitors who wore brightly
colored ponchos with identifying insignia. The solicitors
walk between lanes of cars which are waiting for the traffic
signal to change, step off the median strip on North Avenue
to approach drivers, and stand in or near the turning lane.
Al! this has been done to the financial success of the
organization without intruding onto Railroad Avenue. The
solicitation is done 1 day each year, and the witness who
did the job at the North and Railroad Avenue intersection
testified that there were five solicitors strategically placed
there for about 2 hours to approach as many motorists as
possible between traffic light changes.
Respondent also brought out through Hall that the
Union had not attempted to communicate with Scholle
employees by newspaper or radio advertisements or
announcements, by distributing bumper stickers, by
carrying or wearing identifying placards, by using an
airplane with a streamer behind it, by ascertaining license
numbers of vehicles used by Scholle employees, or by using
loudspeakers to attract their attention.
Solicitation inside the Plant
Hall was apparently unable to get any Scholle employees
to undertake any distribution of union handbills inside the
plant or on the parking lots. Whether this was because of a
lack of employee - interest, or fear, is impossible to say.
During the Last day of the hearing, while General Counsel
was cross-examining Pettinger, Scholle's personnel manag-
er, he testified that ' Scholle had a rule against employee
solicitation within the plant and on its property. The rule
was contained in a foreman 's handbook but was also given
to employees on some basis not fully developed on the
record. On the strength of Pettinger's testimony on this
point, the General Counsel moved to amend the complaint
to allege as an additional violation of Section 8(a)(1), the
promulgation and maintenance of a rule prohibiting
employees from soliciting on behalf of a labor organization
or from distributing literature on Respondent's property at
any time.
Respondent objected to the amendment, and I denied the
General Counsel's motion to amend, even though I was
satisfied that the matter was within thegeneral scope of the
charge. I did so because Pettinger's testimony referred to
new matter which, if it were to be fully litigated, would have
entitled Respondent to a postponement of the hearing in
order to defend itself properly . It also seemed to me to be
outside the general theory of the complaint, namely, that
nonemployee union organizers had no reasonable means of
communicating with employees unless they could speak
with them-and distribute literature to them on the private
property of either Scholle or Automatic Electric.
Oral solicitation or distribution of union literature
undertaken by employees in the employer's plant ori on its
parking lot is governed by different principles and rules,
relating to nonworking areas and nonworking time, than
those applicable to solicitation or distribution by nonem-
ployees outside industrial plants. Whether nonemployee
organizers may be prohibited from entering on private
property to distribute union literature cannot'depend on
whether there is also in effect an invalid employer rule
against employee solicitation or distribution. In fact, up to
the point when Pettinger revealed the existence of a
possibly invalid rule against solicitation and distribution by
employees, the General Counsel was trying the case on the
premise that Respondent was improperly barring nonem-
ployee organizers from private property regardless of the
nonparticipation by employees in the union's organizing
activities. In sum, I thought then, and still do, that this case
should not have been further prolonged 'to try a new
allegation which could not affect its ultimate resolution.
Analysis and Conclusions
The General Counsel and Respondent agree that the
Supreme Court's decision, 1V L.R.B. v. Babcock & Wilcox
Company, 351 U.S. 105 sets out the standards which
determine the legality of an employer's posting his private
property against its use bynonemployee organizers who are
attempting to communicate with his employees. Each
quotes from the decision those portions which best fit its
view of the facts, and in the interests of impartiality, I set
out below the parts quoted by either party, with connecting
language.
It is our judgment, however, that an employer may
validly post his property against nonemployee distribu-
tion of union literature if reasonable efforts by the
union through other available channels of communica-
tion 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. In these circumstances the employer may
not be compelled to allow distribution even under such
reasonable regulations as the orders, in these cases
permit.
This is not a problem of always open or always closed
doors for union organization on company property.
Organization rights are granted to workers by the same
Authority, the National Government, that preserves
property rights. Accomodation between the -two must
be obtained with as little destruction of one as is
consistent with the maintenance of the other,, The
employer may not affirmatively interfere with organiza-
tion; the union may not always insist that the employer
aid organization, But when the: , inaccessibility of
employees makes ineffective the reasonable,attempts by
nonemployees to communicate with,, them through the
usual channels, the right to exclude' from property has
been required to yield to the extent needed to permit
communication of information on the right to organize.
... The right of self-organization depends in some
measure on the ability of employees to learn the
advantages of self-organization from others. Conse-
quently, if the location of aplant and the living quarters
of the employeees place the employees beyond thei reach
of reasonable union efforts, to communicate wit hi them,
the employer must allow the union, to approacch his
SCHOLLE CHEMICAL CORP. 729
employees on his property. No such conditions are
shown in these records.
The plants are close to small well-settled communi-
ties where a large percentage of the employees live. The
usual methods of imparting information are available.
See, e .g., note 1, supra. The various instruments of
publicity are at hand. Though the quarters of the
employees are scattered they are in reasonable reach.
The Act requires only that the employer refrain from
interference, discrimination, restraint or coercion in the
employees' exercise of their own rights. It does not
require that the employer permit the use of its facilities
for organization when other means are readily availa-
ble. (351 U.S. 105,112-113.)
The Board has applied the principles of Babcock &
Wilcox to a few cases, where, as here, the issue was an
employer's right to prohibit the distribution of union
literature by nonemployee organizers within an industrial
tract in a metropolitan area .2
In General Dynamics, 137 NLRB 1725, a large industrial
tract in Rochester, New York, bounded by public streets
but bisected by a private road, was owned and wholly
occupied by a single employer. The tract had five entrance
gates, one of which opened onto a public street, and two of
which were reached from the intersection of a boundary
public street with the private road. These two entrances
were the most heavily trafficked means of ingress to the
plant area and were used daily by a little less than half of
the total employee complement of 4,500 employees. The
Union engaged in handbilling at all five plant entrances,
being barred by the employer from distribution only on the
private road itself. The private road was clearly posted as
such and had never been dedicated as a public street,
although for the convenience of the public, the employer
permitted limited use of its road as a passageway between
the public streets at each end.
The Board, reversing the Trial Examiner, upheld the
employer's right to bar union distribution of handbills on
the private road itself, finding that the employees were not
beyond the reach of reasonable union efforts to communi-
cate with them. The Union could do so, according to the
Board, by handbilling employees in automobiles on the two
public streets at the intersection with the private road, as
well as those employees who walked to work or used public
transportation. The Board also pointed out that the Union
had been able to visit employees in their homes and to
reach them by mailings during its 4-year campaign.
The second Board case involving distribution of union
literature by nonemployees within an industrial tract is Solo
Cup Company and Calumet Industrial District Company, 172
NLRB No. 110. Here, the tract within which Solo's plant
was located included a private street owned by Calumet.
The only way to communicate with Solo's employees,
without entering on Calumet's property, was to pass out
handbills to the employees at the intersection of the private
street and the boundary public highway. The Board found
that it was virtually impossible to stand safely at this
2 Cases involving organization by nonemployees at resort hotels, lumber
camps, company towns, company housing, shopping centers, or retail
stores, with their surrounding parking areas, present some aspects of the
limited issue here, but are sufficiently distinguishable that they need not be
discussed further.
intersection and successfully pass out literature of any kind
because cars approaching the intersection turned both right
and left onto the private street.3 The Union also had no list
of addresses of employees, so that it could not reach them
by letter. Further, the Board said, even assuming that cost
was no object, the Union would have a problem
communicating with Solo employees in view of the large
number of newspapers, and radio and television stations
operating in Chicago and its surrounding area . The Board
therefore found that the Union was not reasonably able to
reach Solo's employees through other available channels of
communication, and that the Respondents ' rule of absolute
exclusion of union organizers from their premises was
invalid.
The Board also held in that case that the entire industrial
tract, including the private road, had become a quasi-public
area because there were no indications that access to the
property was barred by Solo or Calumet to the general
public other than union organizers. The Board analogized
the situation to that of a privately owned _ suburban
shopping center, which is the "functional, equivalent" of a
"normal municipal business district" with unrestricted
rights of access to the property on the part 'of the public.
The Board based this analogy on the Supreme Court's
decision in Amalgamated Food Employees Union Local 590
et al. v. Logan Valley Plaza, Inc., 389 U.S. 911, in which the
Court held that a privately owned shopping center to which
the public was invited could not exclude nonemployees
who sought to peacefully picket and distribute literature on
the premises.
The Board thereupon ordered both Solo and Calumet to
grant access rights to union organizers on the 'outside of the
plant premises located in Calumet's industrial tract.
(Although it does not state so explicitly, the decision seems
to mean that the union organizers would have a right of
access to Calumet 's private road as well as to the parking
lots, used by Solo employees.) After the Board instituted
enforcement proceedings against Solo and Calumet, the
latter agreed to comply with the Board's Order by allowing
union organizers to solicit employees on the private road.
The Court of Appeals then refused enforcement of the
Board's order against Solo, holding that the industrial
district was not the functional equivalent of either a
municipal business district or of a shopping center , since it
did not hold itself out as being open to the public, nor did
the public have any reason to enter the area . Since the
industrial tract was not quasi-public, . Solo committed no
discrimination against nonemployee organizers by barring
them from its property. Furthermore, the Court held that
the Union now had a reasonable means of soliciting Solo
employees on the private road since they were readily
distinguishable from other employees in the area because
they were the onlyones whose quitting time was 2 p.m. The
Court therefore saw no necessity to allow nonemployee
organizers to solicit employees on the steps of the Solo
plant or in their parking lot 4
The Court remanded the case for modification of the
3 From the figures 'given in, fn .' V of the Board's decision , -it can be
presumed that traffic at the intersection of the private and public roads was
much lighter than, in the instant case, at the intersection of North and
Railroad Avenues.
4 N L.R.B. v. Solo Cup Co., 422 F.2d 1149 (C.A. 7).
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's order as to Solo, in accordance with its opinion,
and this has since been done, 182 NLRB No. 101. The
revised order requires Solo not to interfere with union
solicitation of its employees "on property other than that
which it leases from ' the Calumet Industrial District
Company." I presume this means that distribution by
nonemployees may be barred in Solo's parking lot and at
the entrances to its plant.
As for the Board's finding in Solo Cup that the Calumet
Industrial District is a quasi-public area, I am bound
thereby, despite the holding of the Court of Appeals to the
contrary,5 since the public's access or use of the Calumet
tract is not significantly different from that in the instant
case . Although in neither case can the private road be used
by automobiles as a connection between public highways,
yet certain governmental services such as police, fire, and
mail were " provided or available, 'while employees of
business organizations furnishing services to the industrial
firms within the tract were freely permitted to enter.
In any event, the Board's reliance on the quasi-public
nature of the industrial district in Solo Cup is in fact
subordinate to its primary holding, that nonemployee
organizers were not able to reach Solo's employees other
than by _ communicating with them within the industrial
tract.,
In Solo Cup, the owner of the private road within the
industrial tract, Calumet, was joined as a Respondent, and
its eventual compliance with the Board's order granting
union "organizers -the right to distribute literature to Solo's
employees on the private road gave the union in effect a
reasonable method of communicating with them. In the
present case, however, Automatic Electric, which owns
Railroad Avenue, was not joined as a Respondent. Its
policy prohibiting any solicitation or distribution on
Railroad Avenue is not under attack here, nor can an order
be issued against it. The Union is thereby foreclosed from
contacting Scholle employees on the only access road
leading, to their place of employment. The General Counsel
recognizes this by making no contention that the Union
organizers should be -allowed' on Railroad Avenue, arguing
rather 'that tliey should be allowed on Scholle's private
property, at or near the plant entrances or, in the
alternative, in, its parking lots or at their entrances.
Granting then, that the Union had no justification for
demanding, the pri vilege of distributing literature on
Railroad Avenue in view of Automatic Electric's nondiscri-
minatory ban. on all° distributions or solicitations on its
private property, what means did it have to bring its
message to, Scholle employees? For direct handbilling, as
one available channel of communication , Scholle would
relegate the Union to the public part of the intersection of
North and Railroad Avenues; It also argues that the Union
had additional means available to it-the names and
'addresses of about 220 of its 350 employees, which the
union could use to reach them by mail, telephone, or home
visiting. It compares these available means to those which
the union had at the Babcock & Wilcox plant, where the
Supreme Court noted the Board's finding that the union
See Iowa Beef Packer.% Inc., 144 NLRB 615, 616.
6 The fact that the Kiwanis peanut vendors solicit for 2 hours or so once
a year does not prove that they do not run the same risks, but only that
had mailed its literature to over 100 of the 500 employees in
that plant, had talked to them on the streets of the town
nearest the plant, and had visited and phoned them at their
homes.
The differences however, as to the relative accessibility of
the employees at the Babcock & Wilcox plant, and in this
case, is that in the former, the plant was close to small, well-
settled communities where a large percentage of the
employees lived. Here, although the plant is located in a
small town, Northlake, the town itself is only a small
segment of the complex, widespread Chicago metropolitan
area with a population of more than 5 million. Although
about 25 percent of the employees live in Northlake itself,
fairly close to the plant, neither they nor the 75 percent of
the employees who live in Chicago or other suburbs can be
approached in the informal manner possible in small towns
which are located in rural areas. The impersonality and
isolation of living in a large metropolitan area makes it
extremely difficult to reach employees away from their
place of employment.
Nor can the Union effectively reach the employees with
literature or by oral solicitation at the intersection of North
and Railroad Avenues. It cannot identify the Scholle
employees, since they enter and leave Railroad Avenue
among the thousands of cars and employees who are
coming to or leaving the Automatic Electric parking lots
about the same time, nor can it even pass-out handbills at
the intersection without running inordinate risks to the
physical safety, of its organizers as well as disrupting traffic
and hazarding collisions if car drivers slow down to accept
its'handbills 6
Furthermore, unlike the situation in General Dynamics,
supra, none of the Scholle plant entrances face a public
road where distribution to at least some employees would
be possible, nor can the Union direct its efforts to reaching
only Scholle employees, by distributing handbills to all cars
as they enter or leave the private road. The problems in
communicating with employees which the Union faces here
are much more like the union's problems in Solo Cup than
they are with those in General Dynamics.Here, as in Solo
Cup, the industrial tract is the work place for employees' of
many employers; the traffic problem is the same in that
there is only one means of automobile ingress to the
property, with a heavy surge of traffic at the beginning and
end of every shift; while the lack of any reasonable means
of reaching the employees away from their place of
employment is the same.
I therefore hold, on the authority of Solo Cup, that
Scholle's normal right to post its property against
nonemployee distribution of literature must be accommo-
dated to the Union's right to inform the employees of the
advantages of self-organization.
Other Allegations of the Complaint
A second allegation is that Scholle violated Section
8(a)(1) by threatening the union organizers with arrest and
prosecution for trespass on October 31,1969, if they
persisted in their distribution efforts on Scholle's private
they are welling to take these risks in order to accomplish their limited goal
of ' iindiscrumnate solicitation of every car moving on North Avenue during
those few hours.
SCHOLLE CHEMICAL CORP.
property. I find that Mascarella's announcement that he
was a police officer and that Hall was a trespasser on
Scholle property and on Railroad Avenue placed Hall in
fear of arrest and prosecution. However, Hall was indeed
trespassing, and Masearella's warning was not excessive
under those circumstances . This was the date of Hall's first
visit to the plant. The Union had made no earlier attempt to
reach the employees other than by soliciting on private
property, and it was therefore uncertain whether the Union
should be accorded -the privilege of encroaching on
Scholle's dominion over its property under the principles of
Babcock & Wilcox. On this initial visit of the Union
organizers, Scholle was justified in pointing out that they
were on private property and forbidding distribution of
their literature. I therefore recommend dismissal of this
allegation of the complaint.
A third allegation relates to the charge that Scholle
refused Hall's request of December 2, 1969, for permission-
to distribute literature at its plant entrances.' The refusal
was simply an aspect of Scholle's contention that it was
under no obligation to allow its property to be used in the
Union's organizing efforts. Since I have found to the
contrary, and since my proposed order will provide access
for the Union to the Scholle parking lots and building
entrances, I see no need to regard the allegation as stating a
separate offense, or as requiring any additional remedy.
Accordingly, I find that Respondent interfered with the
rights of its employees under Section 7 of the Act by
denying the Union organizers access to its premises for the
purposes of distributing literature, otherwise communicat-
ing with the employees, and soliciting membership in the
Union.
Conclusions of Law
1. Scholle Chemical Corporation, Scholle Container
Corporation, and Scholle Northlake Corporation constitute
a single employer which is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical & Atomic Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to permit the Union's nonemployee
organizers to distribute leaflets and handbills and to solicit
Scholle employees within its parking lots, Respondent has
interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this case, I
make the following:
RECOMMENDED ORDER
Scholle Chemical Corporation, Scholle Container Corpo-
ration, and Scholle Northlake Corporation, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Prohibiting or interfering with nonemployee Union
organizers in distributing union literature and in soliciting
union adherence or membership, in its parking lots and
731
parking areas at points reasonably adjacent both to their
entrances from Railroad Avenue and to plant entrances for
employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Allow Union organizers to distribute union literature
and to solicit union adherence or membership, at points
within its parking lots and parking areas which are
reasonably adjacent to Railroad Avenue and to employee
entrances to the plant.
(b) Post at its plant in Northlake, Illinois, copies of the
attached notice marked "Appendix." Copies of said notice 7
on forms provided by the Regional Director for Region 13
shall, after being duly signed by an authorized representa-
tive, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material. -
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.8
T In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes. In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board."
8 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TILE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees
that:
WE wILL allow organizers and agents of Oil,
Chemical & Atomic Workers International Union,
AFL-CIO, to distribute their literature and to solicit the
support of our employees in our parking lots and
parking areas at points which are reasonably close to
Railroad Avenue and to the employee entrances to our
plant.
All our employees are free to become, or to refrain from
becoming, members of any labor organization.
732
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SCHOLLE CHEMICAL
CORPORATION, SCHOLLE
CONTAINER CORPORATION,
SCHOLLE NORTHLAKE
CORPORATION
(Employers)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions. may be directed to 'the Board.'s,Office, 881
U.S. Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-353-7572.
AVAUVOal Oft