The Falk Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 716 (N.L.R.B. 1971)

716 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
The Falk Corporation and District No. 10, Internation-
al Association -of Machinists and Aerospace Work-
ers, AFL-CIO.-Case 30-CA-1226.
August 18, 1971
DECISION AND- ORDER -
On October 28, 1970, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion with supporting briefs, and the Respondent filed
cross-exceptions and 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 the 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 complaint herein be, and it hereby is, dismissed in
its entirety.
MEMBER BROWN, dissenting:
I would find that Respondent violated Section
8(a)(1) of the Act by refusing nonemployee union
organizers access to its property to distribute litera-
ture. As I stated in my dissent in Monogram Models,
192 NLRB No. 99, I do not read the Babcock &
Wilcox' decision to require more than reasonable
efforts on the part of a union to communicate with
employees. The majority and the Trial Examiner, by
requiring the Union to record automobile license
numbers and compare them to a state-supplied listing
of licensed vehicle owners and addresses in order to
initiate a dialogue with the employees, are clearly
demanding the Union make more than "reasonable
efforts."
1 N.L R.B. v. Babcock & Wilcox, 351 U.S. 105.
TRIAL EXAMINER'S DECISION -
STATEMENT OF THE CASE
GEORGE J. BoTr, Trial, Exa.miner:,_Upon ;a charge of
unfair labor practices filedby District No. 10, International
Association of Machinists and Aerospace.;; Workers,
AFL-CIO, herein called the Union, on April ,1, 1970,
against the Falk Corporation, herein called Respondent or
Employer, the General Counsel of the National Labor
Relations Board issued an amended complaint on July 17,
1970, alleging that Respondent had violated Section 8(a)(1)
of the National Labor Relations Act, herein called the Act,
by refusing to grant access to nonemployee union
organizers to distribute union literature to Respondent's
employees on Respondent's Canal Street property. Respon-
dent filed an answer admitting that it had refused access to
nonemployee organizers as alleged, but denying the
commission of any unfair labor practices. A hearing was
held before me in Milwaukee, Wisconsin, on August 18 and
19, 1970, at which all parties were represented. Subsequent
to the hearing, General Counsel and Respondent filed
briefs which have been carefully considered.
On the basis of the entire record, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
L RESPONDENT'S BUSINESS
Respondent is a Wisconsin corporation with offices and
plant facilities at Canal Street, Milwaukee, Wisconsin,
where it is engaged in the manufacture of mechanical
power transmission equipment. During the year prior to the
issuance of the complaint, Respondent sold and shipped, in
interstate commerce, products valued in excess of $50,000
to customers located outside the State of Wisconsin.
Respondent is an "employer" as defined in Section 2(2)
of the Act, engaged in commerce as defined in Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The setting
Although Respondent 's somewhat wedge shaped Panal
Street complex is located in the City of Milwaukee, a
knowledgeable witness employed by the City noted that it is
situated "in a cul-de-sac," and General Counsel accuirately
likens it to an island, as far as accessibility is con ed.
The complex stretches from the 27th Street viaduct est to
a line between 32nd and 33rd Streets, which appear to be
approximately one-third of a mile , and, from no to
south, it appears to be the same distance at its widest point.
Although, part of the surrounding area is residen' , the
complex is bordered by natural or manmade obstructions,
192 NLRB No. 100
THE FALK CORPORATION 717
such as the Menomonee River on the south and east, the
Milwaukee Road railroad complex on the west, and, on the
north, by railroad tracks and an elevated freeway.' -
'At the' time ' of the hearing, there was a total of
approximately 1630 hourly-rated production and mainte-
nance employees; and an undisclosed number, of supervi-
sors and office -employees, employed at the Canal Street
plant. The plant is a three-shift operation with staggered
shift starting times. There are approximately 1082 employ-
ees on the first-shift,, 341 on-the seconds and 207 on the
-third. First shift employees begin work from 6 to 6:45 a.m.
and quit from 2:,30 to 3 p.m.; second shift employees begin
from 2:42 to 3:30 p.m, and-leave from 10:42 to midnight.
Third`-shift employees -go -to work between 10:42 and 11
p.m. and quit from 6:42 to -7 a.m. Executive, office' and
professional- personnel commence work at 7:45 a.m. and
later, and generally leave work from 3:30 to 4:15 p.m. None
of Respondent's'-employees leave the- complex during
breaks or lunch periods.
Milwaukee is the twelfth largest city in the nation and has
a population; of 709,493. The population of Milwaukee
County is 1,046;268. The population of the four county
metropolitan area (Milwaukee, Ozaukee, Washington and
Waukesha CCounties) is-1,393,260. In excess of 90 percent of
Respondent's production and maintenance employees
reside in an area extending approximately 3 miles east, 7
miles west, 7 voiles north and 7 miles south of the Canal
Street plant, and the remainder reside within a'30-mite
radius.''
There are three means by which employees enter and
leave the Canal Street complex as follows: .
There is only one vehicular entrance, consisting of a 2-
lane viaduct 22 feet wide extending from Canal Street over
the Milwaukee Road railroad tracks into the complex.
Canal. Street is north of Respondent's complex and runs
east and west along the Milwaukee Road property. The
entrance to the viaduct on Canal Street is approximately
1 /2 block east of 32nd Street which runs north and south.
Respondent owns and -maintains the entire viaduct up to
the point where it enters-Canal- Street.
There is a pedestrian -' walkway, also owned and
maintained by Respondent,' extending along the east edge
of the viaduct. The' only sidewalk on Canal Street is on the
north side of the street across from the walkway into the
plant. There is no 'public sidewalk on the walkway side. All
pedestrians utilize the public sidewalk before crossing
Canal Street to'the'walkway- entrance.
The -'third entrance to the plant,, also - owned and
maintained by Respondent, commences at a -public
sidewalk on the 27th Street viaduct and extends from a
public bus $tapon the elevated viaduct, downward on to
Responde'nt's property. -
An average of approximately 76 percent of first, 75
percent of second, and 90 percent of third shift employees
enter and leave work each day by automobile over the
privately-owned viaduct extending from Canal Street.
There are only two vehicular approaches to the viaduct
from the surrounding area, 32nd Street, a half block east of
the viaduct, running north and south and ending at Canal
I Most of the following findings are based upon a written stipulation of
the parties and where they are not, I have tried to indicate the testimonial
Street, and the eastern portion of Canal Street, which runs
approximately 6-1/2 blocks east of the Falk viaduct where
it intersects with Greves Street and eventually 25th Street at
West St. Paul Street. The vast majority of Respondent's
employees utilizing automobile transportation enter and
leave the complex.-.area via 32nd Street. A, traffic count
made on the afternoon of August 14, 1970, between 2 and
3:30 p.m. revealed that of thenumber of autos exiting-from
the viaduct, 25 percent turned east and 75 percent, turned
west toward 32nd Street.
On an average day, approximately 15 percent of first, 13
percent of second, and 10 percent of third shift employees
leave the complex via. the pedestrian walkway and the 27th
Street viaduct stairway, and employees exit from public
buses at the bus stop, and cross a public sidewalk before
entering the stairway.
It also appears that Respondent leases a bus to transport
employees to and from certain locations in the complex and
nearby points in the surrounding residential, area. On an
average day, approximately 9 percent of the first, shift and
12 percent of second shift employees use this, method of
transportation.
Immediately to the west of Respondent's plant complex
is an office and maintenance complex -owned by the
Milwaukee Road railroad. The Milwaukee Road employs
approximately 1030 employees at its Canal Street complex,
with shift changes occurring as follows: 7 a.m. to 3 p.m. -(50
employees); 7:30 to 3.30,(745); 8 to 4 (125); 3 to.11, (50);
3:30 to 11 (10); and 11 p.m. to 7 a.m. (50). The employees
enter and leave the Milwaukee Road complex by means of
a viaduct intersecting Canal Street, located approximately 1
block west of the intersection of 32nd and Canal Street. The
vast majority of Milwaukee Road employees use automo-
biles to get to and from work via 32nd Street.
In addition to, the -Milwaukee Road complex, it appears
from the evidence that there are approximately a half-dozen
smallmanufacturers along Greves-Street between 27th and
25th Street. Some of these employees use Canal, Street to
reach their employers' places of-business.
2. The Union's organizational campaign and its
efforts to communicate with Falk -employees
In late 1968, Joseph Spehert, an organizer for the Union,
made what -he described as an "informal' check" in his
"spare' moments" of the number of employees entering the
Falk complex by automobile. Spehert was not at the time
involved in attempting to organize Respondent, and it
appears from his testimony that his observation of the plant
and the employees was merely a preliminary to a -later
decision to make an organizing effort. As part of 'his
"survey," Spehert conducted a license plate 'check. He
visited the area of the plant on 8 to 10 different occasions
over a month and a half period in the morning or
afternoon, presumably 'at shiftchange time, and parked his
carr, on the east side of 32nd Street, about 1/2 block north of
the intersection with ' Canal ,Street, where' he proceeded to
record on a tape recorder the license plate numbers of cars
as they went by. Since his car was-pointed north, Spehert
source.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used his rearview mirror in attempting to record , on north
bound traffic, only, those cars coming around, ,the corner
from the, east on Canal Street, presumably , from theFalk
complex ,,, He _ also, ,presumably, recorded the' license
numbers of, all south bound traffic. Having obtained a list
of license numbers, Spelled had them ,alphabetized in order
to determine car ownership . The State of, Wisconsin
publishes a directory which lists the names and addresses of
all automobile owners registered in the State, and from this
directory Spehert discovered who,owned the automobiles
he had observed on, 32nd' Street . Spehert's list contained the
names of 593 persons, but he said that in checking the
names , against the Milwaukee City directory, he discovered
that his list was inaccurate in that about half, the names
were of persons not employed by Respondent. No effort
had been made to update this list as of April 1970 when the
Union made a'mailingto Falk employees.
The, Union's organizational attempt seems to have; been
launched on or about March 23 , 1970, at approximately
5:45 a.m., when Spehert, accompanied by'six or, seven
nonemployee assistants, attempted to hand union authori-
zation cards to employees as they arrived for work. Two
men were placed ,ow the 27th Street=viaduct, and the rest
stationed themselves on the Falk viaduct, immediately to
the south 'of where it joins Canal Street, to handbill
employees entering the plant by auto or walking .on ,the
Respondent's walkway on the ' viaduct. Within a. few
minutes; ' Respondent's security ^ guards , told the union
agents they were on private property,,and ordered them to
leave. Spehert doubted that he and his men were onprivate
property, and continued his, efforts toreach the employees,
but, in a short while , City of Milwaukee policemen arrived
and instructed them to leave because they were on private
property.
Spehert and his assistant left the viaduct area and
stationed themselves elsewhere . Spehert placed one person
at the northwest corner, of 32nd and Canal and another on
the public sidewalk on the north side of Canal, just east of
the point where the Falk viaduct joins Canal Street. Spehert
himself and another assistant stood on the curb on the
south side ,- of Canal Street, between the- 32nd Street
intersection and the Falk viaduct. Although the Union had
now covered all normal automobile approaches to the
plant, Spehert, credibly !testified that since his, handbillers
were unable, to successfully reach the drivers from where
they were , stationed, he -,and others moved out into the
middle of the street in order to go closer to them . However,
policemen soon told the union, agents that they,, were
violating traffic rules and would have to get out, of the
street. Spehert and the others left the area between 6:15 and
6:30a.m.
The Union made a second attempt to distribute literature
on March 25, 1970. Spehert and four other employees of the
Union stationed themselves on theviaduct at approximate-
ly ;10:30 p.m. during the break between the second and
third shifts, "but they were again ordered off Falk property
by security guards., Spehert again-refused to comply, and
Milwaukee police again arrived and convinced him that he
should remove himself from Respondent's viaduct. It
appears, however, that - a police officer, allowed -, union
representatives to -distribute , literature from each side of the
Falk viaduct on- public property . This , was done by
permitting the union representatives to stand at the points
where the Falk asphalt joined the concrete of Canal Street,
but in neither case were the representatives allowed ,to stand
in the flow of traffic,, according. to Spehert's undenied
testimony, and, the Union again left the area with very little
accomplished.
After his unrewarding experiences on March 23 and 25,
Spehert investigated the ownership ,of the Falk viaduct and
found out that it was indeed owned by Respondent . He also
visited Milwaukee District 3 police headquarters and was
clearly told that,he and his men would not be permitted to
distribute literature by standing "in the street.' He was also
told, however, that he could stand on the public sidewalks
and distribute literature.
On March 30, the Union made its third and last attempt
to distribute literature in the vicinity of the Canal Street
viaduct. Spehert, assisted by eight or nine ,other individuals,
arrived at the plant complex at approximately 6:15-6:30
p.m. This time the union agents .did not attempt tostation
themselves on any part of Respondent's viaduct, but tried
to pass out handbills in the middle of Canal Street, until
stopped by Milwaukee police. According to Spehert, and I
credit his testimony , standing in, the middle of the highway
was the only effective means by which the union
representatives could hand literature to drivers of automo-
biles . He said that before they left the area in approximately
45 minutes, he and his assistants had distributed about 200
notices of a union meeting.?
In addition to the handbill advertising a union meeting,
the union agents also had with them two 25 -foot banners
stating 'in, large yellow and,, red letters that the meeting
would be conducted at Serb Hall on April 2. Ono of the
banners was displayed from the public sidewalk on the
north side of Canal Street, directly opposite from, the
entrance to the Falk viaduct where it could be , seen by Falk
employees leaving, work .,-The other banner was displayed
from the south side of Canal . Street, facing -north, at the
intersection of Canal and- 32nd Street , so that it could be
seen by employees who approach the plant down 32nd
Street from , the north. Spehert testified without contradic-
tion that shortly after the, banner on, the south side of Canal
Street was unfurled, a Milwaukee Road agent told him-it
was on Milwaukee Road property and would have to be
removed. Spehert took the banner down, and he said that,
frustrated and disgusted by the problems hewas encounter-
ing, he decided to give up . He took both banners down and
left the area.
The Union conducted organizational -meetings-one in
the morning and one in the afternoon-for Respondent's
employees on, April 2, as had been announced in the March
30, banners and handbills . Approximately 50 employees
attended the morning session and 150, came that afternoon.
Spehert said that most , of those atending had, already
signed authorization cards.
On April 8, the Union mailed 700-800 introductory
copies of the International Association of Machinists'
2 Several union agents were also stationed this morning on the 27th stairs leading , to the complex . As far as this , record is concerned, no
Street viaduct to distribute leaflets to employees at both entrances to the difficulties were encountered there.
THE FALK CORPORATION 719
newspaper to employees who had signed authorization
cards, as well as to those whose names appeared on
Spehert's list prepared in 1968 after his automobile survey,
with-the exception of- those persons who were actually now
known not to be employees of Respondent. As indicated
earlier, the Union had made no effort to correct or update
the list -sinceit was first prepared , and Spehert said he had
no way , of knowing what percentage of the April 8 mailing
actually reached Falk employees. On the other hand,
Spehert has used the list to make some home visits and
telephone calls to employees on it. It also appears, however,
that the Union has not used any kind of employee
committee to distribute cards or literature in the plant, and
communications with employees since April 8 seem to have
been limited to isolated contacts with employees who
happen to drop into the union office.
On May 22, 1970, the Union wrote Respondent and, after
describing some of the difficulties it had experienced in
handbilling employees entering , and leaving the plant,
requested that Respondent grant its organizers access to
company property for distributional purposes. As an
alternative to being granted access, the Union requested
that Respondent furnish it with a list of names and
addresses of its employees so that they could be contacted
outside of the plant for organizational purposes. By letter
dated June 1, Respondent, relying in part on "long standing
Company policy concerning use of Falk property' and its
assumption that the Union had numerous avenues of
"communications with Falk employees" available to it,
denied the Union's request.
For several years Respondent has maintained and
enforced a uniform , nondiscriminatory policy prohibiting
nonemployees from entering any area of its property for the
purpose of soliciting or distributing literature or printed
matter in any form to, its employees . With respect to
employees, Respondent maintains presumptively legal rules
against solicitation during working time and distribution in
working areas of the plant. It also appears that Respondent
has made no response to,- its employees concerning the
communications proffered to them by the Union during its
organizational campaign as described above.3
B. Analysis, Additional Findings, and Conchesions
In order to sustain the allegations of the complaint that
Respondent interfered with, -restrained, and coerced its
employees by refusing to grant access right to nonemployee
union organizers to distribute union literature or to
otherwise disseminate union information to Respondent's
employees on Respondent's Canal Street property, General
Counsel must establish that the Union is unable by
reasonable efforts through other available channels of
communication to reach the employees with its message 4
3 As- of April 1970 , International Union, United Automobile, Aerospace
a4c Agricultural workers of America (UAW), had been conductug, for
approximately 2 years , organizational activities directed at Respondent's
employees. The record contains numerous pieces of union literature
sponsored by said organization and found in various areas of Respondent's
plant. It is a fair inference that a UAW employee committee is responsible
for transmitting these messages to employees in the plant. As with the
Machinists Union, Respondent has made no response to its employees
concerning these UAW communications during the 2 years that the
campaign has been going on.
If, as the Court said at another point in Babcock,& Wilcox,
"the location of -a plant and the living quarters of the
employees - place the employees beyond the reach of
reasonable union efforts to communicate with them,, the
employer must allow,the union to approach his employees
on his property"5 I find on the basis of the whole record
that it has not been shown by a preponderance of the
evidence that, the Union cannot communicate with
Respondent's employees effectively by the use of certain
techniques and avenues, including a certain amount of
advertising by placards or banners near the plant viaduct,
which the record shows are available to the Union if it
exercises "reasonable efforts" to utilize them.
First of all, unlike the situations in certain cases relied
upon by General Counsel, the Union in this case
concededly is able to distribute literature to pedestrian
employees who enter the plant via the walkway which runs
along the Falk Canal Street viaduct from the public
sidewalk extending along the north side of Canal' Street,
and to those employees who^,use the stairway extending
from the 27th Street viaduct by, standing at the public bus
stop on the viaduct. I also find-that it is practical to
distribute literature to employees, who are transported to
and from work by the bus leased by Respondent by
meeting them at the bus stops in the surrounding areas, and
General Counsel concedes that there are no
"insurmountable problems in distributing literature" to this
group. Consequently, these two groups-those who use the
pedestrian entrances and those who use the company
bus--can be effectively reached, and - they together
constitute almost 25 percent of Respondent's work force,6
In Babcock & Wilcox, 90 percent of the employees drove
to work in automobiles. The only place in the plant area
where leaflets could be distributedto employees was a long
driveway where it crossed a highway. The Court agreed
with the Board that it was "practically impossible" for
union representatives to distribute leaflets safely to
employees as they entered and left the plant. The Court also
observed, however, that there were alternative methods of
communication utilized by the- union, such as mailing
literature to 100 out of 500 employees, verbal communica-
tions on the streets of the city where the employees lived,
home contacts, and home telephone calls . On the basis of
these considerations, the Board had nevertheless concluded
that "it was unreasonably difficult to reach the employees
off company property." 7 The Court concluded on the basis
of the same facts, however, that means of communication
other than access to Respondent's property for distribution
purposes were "readily available" and that, in the
circumstances, the employer need not permit the use of his
facilities for organizational purposes. Some of these "usual
methods, of imparting information" which were available
had, as indicated, been referred to by the Board, and the
4 N.L.RB. v. Babcock & Wilcox Company, 351 U.S. 105,112.
eb Supra at 113.
® In Solo Cup Company, et at., 172 NLRB No. 110, reversed and
remanded 422 F.2d 1149 (C.A. 7), 99 percent of the employer's employees
entered the plant by automobile at a location where it was "virtually
impossible to stand safely" and pass out literature. In Central Hardware
Company, 181 NLRB No. 74, only a few of the company's employees
walked to work.
7 Babcock & Wilcox supra at 106.
,720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court added to them the considerations that "various
instruments of publicity are at hand" and the quarters of
employees, although scattered , were in reasonable reach. I
find and conclude that , in addition to being able to
,- effectively reach nondrivers and apart from any avenues
available to the Union near the plant complex to carry its
message to employees who use automobiles to get to and
from work, alternative means of communication available
to'' the Union are, essentially equal to those deemed
adequate by the Court in Babcock & Wilcox. They are:
1. Communication by mail
In Babcock & Wilcox, the union was only , able to
communicate by mail with , approximately 100 "out of 500
employees. In this case, as set out above , Spehert, the
Union's business representative and organizer , did not
attempt' to compile 'a comprehensive mailing list when he
surveyed automobile traffic 'near Respondent's- plant in
1968,- and the list of addresses he did put together from a
check of license plates has never been attempted to be
brought up to date. ' Nevertheless, from that stale,
incomplete, and probably inaccurate list, with the addition
of persona who have actually signed union ' authorization
cards, the Union has been able to mad 700400 pieces of
union literature to persons it believes are Falk employees.
Although Speherttestified that ha .had'no way of knowing
whether the mailing was actually , received by Falk
employees , it is a' fair inference, which I draw, that the
Union is now reaching 'considerably , more than a few
hundred- Falk employees by'mail . But more important than
this ability to reach by mail proportionately as many
employees as the union in Babcock & Wilcox was able to
contact, is the fact that the Union with a little more effort
can compile a much more comprehensive list of names and
addresses- of Falk employees who drive to work . I make this
finding on - the basis of the credited and composite
testimony ' of Ralph Brownlee , professor of marketing at
Marquette University and expert in the field of marketing
and advertising, and Robert Seaborn, Respondent's plant
engineer, that a complete list of all license plates of all
automobiles , entering and leaving the Falk complex via the
Canal - Street viaduct can be easily recorded on a tape
recorder by day or night by one or two persons standing on
the public ' sidewalk directly across from the entrance to the
viaduct; that the Motor Vehicle Department of the State of
Wisconsin- maintains as a public record the name and
address of each license owner; that plates are required on
the front and back of each car; that said plates remain with
the owner, not the car, in the event of transfer of title, and
that the listings of names and addresses maintained by the
State is kept up , to date with regular supplements and is
available for purchase by the public . It also appears that the
Union has utilized this service in the past for organizational
purposes . It will be recalled that Spehert did not station
himself in front of the viaduct, as suggested by Respon-
8 By appeals to persons who have signed cards to supply the name and
address of another 'employee, for example.
9 172 NLRB ,No. 110.
10 In Central Hardware Company, 181 NLRB No. 74, the Board, in
affirming the Trial Examiner who relied in part on the difficulty the union
encountered in trying to reach employees at home in Indianapolis. Indiana,
dent's witnesses, but sat in. his car on 32nd Street. This
undoubtedly explains why 'half of the names on his, original
list were of persons who did hot work for Respondent,- for
Milwaukee Road employees also'us'32nd Street to get, to
and from work, at or around the time Spehert was making
his license plate check. -
General Counsel argues that any list of license plates and
names and addresses developed therefrom as described,
would , be incomplete and inaccurate 'because some
employees ride in car pools, because `statistics show that
persons change their addresses about once every 5 years,
and because there is no way for an observer to tell a
production and maintenance employee from a supervisor
or office 'employee if he or she is driving a-car. It appears,
however, that provisions ,may be made for forwarding mail
to persons who move , and it is also a fact that not only do
no women work in production , and, maintenance, but the
starting and quitting -times of ' office, ' executive and
professional personnel do not coincide with production and
maintenance employees . It may ` be- that the' first list
,prepared,' or^ even subsequent lists, will contain the names
of some nonunit employees , but there is no known reason
why the union would not want a nonunit employee to $et
its literature ,, and the use of a city directory would help
reduce this margin of error, for it lists . persons by
occupation. As far as car pools are concerned , 30 percent of
the employees drive alone , and it ' also well known -that car
pool participants alternate . In any-4-se, if the driver gds the
message, it is likely that the passenger will get it too This is
not to say that the license ,plate survey method will result an
a completely accurate list of names and addresses of all
employees in the unit and of no one else. It is'to say that by
this method, which I find not an r uneasonable burden,
supplemented by various well -known' techniques for
appealing for addresses,8 the Union can build a mailing list
which Will be,fairly comprehensive . With this , li`s't and its
opportunities for face-to-face contacts with pedestrian
employees, it will have much more
-
than the unions had iii
Babcock & Wilcox and in Solo Cup Company. 9
2. Visiting and telephoning employees at their
homes,
In Babcock,& Wilcox, only 40 percent of the employees
lived in a nearby town and 60 percent lived within a 30-mile
radius. In this case 90 percent of the employees live in
residential- areas relatively close to the plant and the
remainder live within a 30-mile radius. I find nothing in the
cases to indicate that it is unreasonable to expect a union to
attempt to reach employees at their homes merely because
they live in a metropolitan area.in The Union's representa-
tives have made some home visits , as well as some
telephone calls, in this case, and it is to be expected that
with an enlarged list of employee addresses they will be able
to make more, if they choose.11 ,
in finding ;denial of access illegal, relied upon a variety of- considerations
not present in, this case . I consider the case clearly distinguishable The
Courtin Babcock & Wilcox, at p. 114, referred to home visits as "one of the
usual methods of imparting information."
11 In Solo Cap, where most of the employees lived in Chicago , but some
lived in Indiana, some 15 to 20 miles from the pleat, the Board said that,
THE FALK CORPORATION 721
3. Group meetings
The Union's organizer testified that "direct contact with
individuals" in "group meetings" is "the best way" to
communicate with employees, Yet the record shows that the
Union has no meeting place in the vicinity of the plant and
has arranged only one meeting of employees. As described
in greater detail above, on March 30, the Union attempted
to distribute handbills in the vicinity of the plant and
erected two large banners all announcing a union meeting
for April 2. Although the Union was not required to remove
the banner it had placed across the street from the plant, as
it was the one on Milwaukee Road property, where
employees entering or leaving the plant could read it, it
suddenly struck this banner in "disgust," left the area, and
did not return to put the banner up again for the close of
the first shift. Nevertheless, _ 150 employees attended the
April 2 meeting, and Spehert attributed this attendance in
part to the handbills his assistants had been able to get into
the hands of employees and to the use of the banners. It
also appears that the Union does not use an in-plant
committee of employees for organizational purposes, and
although some card signers made up part of the attendance
at the April 2 union meeting, no employees distribute union
literature in the plant. On this record, although-no one set
of organizational techniques can control the result, it would
seem that the Union has itself fallen short of making
"reasonable union efforts" to meet with employees in
groups.12
4. Newspapers, radio, and television
In Babcock & Wilcox, the Supreme Court noted that, in
addition to the various methods of communications already
touched upon, the "various instruments of publicity" were
also available for the union' s use,13 and so the use of
newspaper, radio, and television-advertisements as possible
avenues of communication with Falk employees cannot be
lightly dismissed as something to consider along with other
methods of communication in determining whether the
Union can not effectively communicate with Respondent's
employees unless- it is permitted to use Respondent's
facilities.
There are two major newspapers in the Milwaukee
metropolitan area consisting of a morning daily (the
Milwaukee Sentinel), and an evening `daily (The Milwaukee
Journal), which also' publishes a Sunday edition. According
to a survey by the Journal Company, which owns both
newspapers , the percentage household coverage of the
above newspapers in Milwaukee County was 99 percent for
the Sentinel and Journal combined, and 100 percent for the
Sunday Journal and the daily Sentinel combined. There are
also weekly newspapers published in a number of suburbs
and the Milwaukee Labor Press, captioned as "The Largest
Local Labor Paper in the Nation.-
A full page ad in the Sentinel costs $1 ,152, and in the
Journal, $2,112, but the cost of less than a full page ad
would be proportionately reduced. Costs of advertising in
"it would be virtually impossible for the Union, without a list of addresses,
which Solo in a recent representation case has refused to supply, to meet
the Solo employees away from the plant premusss and convey its message."
(Emphasis supplied)
the Sunday Journal are somewhat higher than in the daily
Journal.
There are 22 AM and 20 FM radio stations in the
Milwaukee metropolitan area, with 4 AM stations having
the highest market density. There are 3 VHF, 1 UHF, and I
educational television stations in the metropolitan area.
Radio spots start at $5.50 and television commercials range
from $140 for I minute during sports events to $566 for a 1-
minute announcement during an evening broadcast of a
Milwaukee Brewers baseball game. In addition, production
costs amount to approximately $250.
General Counsel argues , that newspaper advertising
suffers the disadvantage of being an "impersonal means of
communication" and is otherwise impractical because the
Union would have to place repeated ads at a cost far in
excess of what could reasonably be expected in the-way of
return. In addition to these prohibitive costs, he also
suggests that "in spite of the newspapers' high percentage of
household coverage," there is no guarantee that, all of
Respondent's employees would read the ads placed. In the
case of radio and television, he emphasizes the cost and the
great number of stations available, which would make it
difficult for the Union to decide which one to use. In my
opinion, the Board in Solo. Cup, although stressing the cost
objections and other problems relating, to the use of
newspapers, radio, and television stations in a large
metropolitan, - area (Chicago), did not hold that the
availability of such media are to be cancelled out and
ignored completely when balancing the factors which
determine the result in these cases. No one, except perhaps
the owners of the newspapers, radio, and television stations,
would argue that their media are the only, most effective,
and the most economical way to transmit the message, but
this does not mean that these methods cannot be
considered for their possible use in connection with, but
only as a part of, a combined campaign. The size and extent
of their roles will depend on how much a union wants to
spend.
5. Handbilling or other communications in the
vicinity of the plant directed toward automobile
drivers
The analysis to this point has not included a discussion of
the Union's ability to effectively reach automobile drivers
with its message as they approach or 'leave the plant,
although I have found that the Union can effectively
communicate with a substantial number of employees who
walk or bus to work. It is clear to me from the entire record
that successful distribution of literature is obviously
impossible from anywhere at the intersection of the Falk
viaduct and Canal Street without-endangering the lives of
union representatives, even assuming that the police would
permit them to stand anywhere in the street or even on the
"crack" which separates the viaduct from the public road.
In addition to risk to the lives and safety of the distributors,
automobile drivers hurriedly entering or leaving, a narrow
driveway into the plant could cause accidents or traffic
12 N.L.R.B. I v. Kutsher's Hotel and Country Club, Inc., 427 F.2d 200
(CA_ 2).
13 351 U.S. at 114.
722 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jams if their attention is diverted and their progress is
impeded. It is unnecessary to minutely detail conditions at
the viaduct and Canal Street the record is clear from the
testimony and the exhibits. It is enough to say that cars
suddenly flow in and out in large masses, and-they may
blend with some other automobile traffic on Canal Street;
the drivers come from both the east and the west and they
leave the same way, 75 percent going west and 25 percent
east. In neither case can the driver be reached with a written
message unless the union representative puts himself in the
middle of the viaduct, which Respondent forbids,-or in the
street which the police wisely prohibit; or unless the
driver stops his car, slides over and lowers his window,
which, it seems to me,' is no way to start a driver on what is
probably a high-speed trip on a freeway.14
I also agree with General Counsel that the intersection of
Canal Street and 32nd Street is not a suitable place to
distribute literature to employees conning to or leaving
work. There is a stop sign on the southwest corner of 32nd
Street, but there is no sidewalk on the west side of the street,
so union- representatives would have to stand in the street to
reach the driver. In addition, 32nd Street is four lanes wide,
and drivers turning east toward the Falk complex would be
in the inside lane, thereby making it doubly difficult to
reach'them unless the solicitor walked out into the middle
of the street to reach the driver's side of the vehicle. After
the driver turns off 32nd Street going east to the plant there
is no stop- sign or other obstacle in his path until he reaches
the plant. There is nowhere in that area therefore where the
Union may effectively distribute literature. '
The, intersection of 32nd Street and Canal is also not a
satisfactory place to try to distribute literature to employees
leaving work by automobile. Although there is a public
sidewalk on the north side of Canal Street, and on the east
side of 32nd Street, there is no stop sign for westbound
traffic at the 32nd Street intersection, and so it is unlikely
that anxious motorists would stop to take leaflets from
persons standing on the sidewalk. Moreover, when union
representatives tried to handbill by standing in the street at
the intersection of 32nd and Canal, they were prevented by
the police, because they were obstructing traffic and risking
their own persons.
An additional problem of distribution at 32nd and Canal
is, caused by some commingling of cars driven by Falk
employees and other persons at that intersection. Milwau-
kee Road employees, for the most part, drive south on 32nd
and turn west on Canal on their way to work and retrace
this route on the way home. Although shift changes of the
two employers do not coincide, there is bound to be some
overlapping, as a traffic survey in evidence reveals.
I also reject Respondent's suggestion that the Union
could effectively distribute literature to driving employees
at certain arterial stop signs located from three to eight
blocks away from the plant, for I agree with General
14 Respondent's own witnesses for a number of good reasons were
concerned about the traffic problem that distribution at the entrance to the
viaduct would cause.
18 In Excelsior, approved by the Supreme Court in N.L.R.B. v. Wyman-
Gordon Company, 394 U.S. 759, with the Court noting that all United States
Courts of Appeals that had passed on the question had approved the
disclosure requirement, the Board, in partial support of its holding,
compared its new requirement with the practice of providing stockholder
Counsel's theory that it, may, be safely assumed that
employee interest in or willingness to stop to accept a
handbill would bein inverse ratio to the distance the driver
has travelled from the plant. In addition, there would again
be a substantial intermingling of .traffic at these points,
union representatives (and there would be need for many)
would not be able to determine where the cars came from,
and since they would not be able to distribute in the street,
they would be faced with the same problems in reaching the
drivers as they would be at 32nd and Canal.
C. Summary
It has been foundthat the Union is unable, legally, safely,
and effectively, to distribute literature to employees who
drive to work, but it has been found that' there is no
impediment to its reaching in the same fashion approxi-
mately 25 percent of the employees who do not use that
mode of transportation , and it has also been found that, in
addition to the practicality of compiling a comprehensive
mailing list of employees, all of the "other methods of
communication, listed by the Court in Babcock-& Wilcox
are readily available to the Union. It ought to be apparent,
but perhaps it must be emphasized4in evaluating availabili-
ty and general' utility, that it is not-the existence of any one
method of.`communication that is controlling, but its
effectiveness ' in combination that ' is significant, and I
conclude' that the combination in this case tips the result in
favor of no access . In this connebtion,"° a word 'about
communications by mail is not irrelevant, for there is a
suggestion in General Counsel's brief and in a case or two
that this method of communication ranks low in effective-
ness on the communications ladder , but in Excelsior
Underwear Inc., 156 NLRB 1236„the Board, in-establishing
a rule requiring an- employer, to file with the .Regional
Director a list of names and addresses of all employees
eligible. to, vote in a representation election within 7 days
after a direction of election, which list would be available,to
all parties participating in the election,-noted that "lack of
information" -impedes a free and. reasoned choice in an
election, and that.by giving the union the same opportunity
the employer has through his possession of names and
addresses of informing the electorate of his view, the union
would also be certain of reaching all, employees with its
arguments, thereby resulting-in an informed electorate.
Although the Board did, not limit the union to the use of, the
mails, it was, clear from the decision, that the Board
considers a mailing list as an effective communication tool
and for that matter so does the Union in this case, because
Spehert so testified.15
Reference, to the Excelsior rule raises the, question of its
possible bearing on ,the issues in this case, a question which
I have not seen mentioned in;any of the access cases. If the
Union is able to secure sufficient "evidence of representa-
tion" (evidence, usually signed authorization cards, that 30
lists in corporate elections , or,other proxy contests, and the publication of
voting lists in political elections . The use of the mails and telephone in
these contests is,well known . The Board also'noted'that , any candidate for
union office is 'by law entitled to have the union "distribute-his campaign
literature to all members," and it concluded that it saw no reason, why
similar opportunities should not be available in representation election."
See Excelsior, supra, at 1242.
THE FALK CORPORATION
percent of the eligible employees desire union
representation),16 it may file a petition , and the Board will
direct an election. If the Union, therefore, can secure the
support of only 30 percent of the electorate, it will not face
the impediment _ that faced all unions when Babcock &
Wilcox was decided and which' Excelsior removed in part.17
Although clearly a union has to be able to communicate
with employees in order -to` secure a showing of- interest
among them, the fact that it need secure only a 30 percent
showing before it will be provided with an accurate list of
all employees-before the election for campaign purposes is
something the Board-may wish to consider when it assigns
weights to each of the available means-of communication as
it balances the statutory right of employees to organize and
the right of an employer to control the use of his property.ls
I conclude that Respondent did not violate Section
8(a)(1) of the Act when it refused to grant access rights to
nonemployee union organizers to distribute union literature
or otherwise disseminate union information to its employ-
1s Rules and Regulations and Statements of Procedure , National Labor
Relations Board , Sec. 101.18.
17 Recall that the Board in Solo Cup, -supra, in finding that the union
was unable by "reasonable attempts" to reach employees through "other
723
ees on. the Canal Street plant property, as alleged in the
complaint. -
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent did not violate Section 8(axl) of the Act
as alleged.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
available channels of commummications," observed that the company had
refused to supply the Excelsior list in a recent representation case.
18 N.L.R.B. v. Babcock & Wilcox, supra at 112.