Appendix — Central Hardware Co. v. NLRB

Supreme Court brief1972

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APPENDIX =| — ‘FES. 19. ar

& . a Te ROBERT SEAVER, CLER

‘

In The:

a - SUPREME cour OF THE — STATES”

OCTOBER TERM, 1971 eo

NO. 70-223 se

CENTRAL ‘HARDWARE COMPANY,

Die oe ct _-Petitioner, ne

e vs. ay

. NATIONAL LABOR leeaeerans BOARD,

’ 5 _ Respondent, se

: , 2 and | os

Se . ‘Sikes, CLERKS UNION. LOCA: 725, RETAIL, CLERKS |

oe INTERNATIONAL ASSOCIATION, AFL-CIO,

Intervenor.

“ON WRIT OF CERTIORARI I TO THE UNITED STATES °

‘COURT OF APPEALS F . ' ae EIGHTH CIRCUIT

PETITION FOR CERTIORARI FILED JUNE 1, 1971 ae ca fe

CERTIORARI GRANTED. JANUARY 10, 1972 8

Qo: ¥ ?-

‘ imp

) = sereon

oS “. In The oo

- SUPREME court OF THE wren Sunes

2 com TERM, 1971 a :

a _ CENTRAL Wise ier cs COMPANY, eee A

Poa ae Petitioner, | ee : :

“National LABOR RELATIONS BOARD,.-. E -

. Respondent,

ree and =e : ents

ee "RETAIL CLERKS UNION, LOCAL 725, RETAIL CLERKS ve

< : INTERNATIONAL 3 ASSOCIATION, AFL-CIO, ;

ree: Intervenor. ¥

as —————

|” ON WRIT OF [TORARI TO THE UNITED STATES .

~~" COURT OF APPEALS FOR THE EIGHTH CIRCUIT

oEeeremeaes

TABLE OF CONTENTS: eas

3 : | Page ©

S ‘Chronological list of relevant docket eatting Sec ES

Charge filed *j in. ‘o +0.29-CA-32' eee RS ae

“Charge filed‘in ease Xo. 25-CA-B261 22, ea

. Order consolidating case es, complaint and notice. of ©... :

hearing sabcistures tapas dork Peed Sen Bektivit,. G -

Answer ey Naeese | ae te

" fAmendment to consolidated | complaint, peeieeN Kc os a

=. ae aia ee oes

: es. ii ‘A : Eye

spines I ‘to ANSWEF .. lee dec egeee etl 16

Trial’ examiner’ s decision Nigeee eee shes Aas det vee “17

error, HE eg hae Mile ee 62

io; 5s

Decision. and ies of rs Board : ete eee vo aca Jes 65

‘Decision of ‘he Righth Cireuit. Court of Appéals cok 74 :

’ - Pertingkt- ante of. the First and: Fifth’ Athendment’ to

; _ the: Constitution of the United ‘States and’ Sections ay

“7 and 8 of the National Labor Relations’ Ae, ah

: am nded, 61 Stat. 316, 29 USC, Section 1 12] | «et

* Pranseript of Jestimony and prog odir =e ba ses ne:

Witnesses th General ‘Counsel | Se oe Phage 91 =

Bees. — Mark Kapetanakis ner ate eer Nhe es 2D ee 2. OLS

os Max Hagerman NSE See esas oes a, ie ea 104

Raymond Spears - ae eo geek: fe a Sea ee

op EMT RO. oe eee Teer cnet

Marylin Ragle. Be eo t eiehewns Boat -. 150°.

“Edward (TS eae Pr Dee i pe ee

ah a By Howard Ae iter oa 170

lS Biveld MOM fei ha hes 178

: oe Charles E. Mereer®.. rt ioe rere Se. eee oy ae

Ww itnesses for Respondent 2 a rh eee ‘209

Gerald E Howenstein Deore Vicusheos te SS

Sidney D: Eskenazi-. 0... .01...002006chee 20"

| George Reed LE ed ee eau

"General C ounsel ’s exhibits meas 2 er ee 230

: Affidavit of Max Hagern ‘nan reais hore 230

. 3—Letter to. ome yers dated daly: 15, 1968 Corie. . 237

yy a8

: 4-Plot tke sos eG rt bento tenn ipwel yee 288 :

5—Plot plan’ - : ;

6%List of. names and addresses ie AL: aes 240. |

7—Map Ae PONG ere Dae weseee elt Qe

7 S—List be employees’

wa uct uved hae a ee, Oe ae ce eee ee

- ths 10-Notice ‘of diseiplinary action.

12—Tr: affic. recor d is vec ee = ois ae a . 944

13—Traflie Seen eens 245

: 14—Tra af ic reor Np erat Barge Meche aee ce ae. 2 246

gee |e [rafiic sits OCT ee fieks Cowen essay mee

eagles record ne epee ee 2 oe ees es ae “. 248

- W—Tiaffie record ees ale eon wateee acc es 249

te 18—Trafiie record. ..-.... Keweset) ee ae bees ge : 250

S 19-—Popilation jist... oe = + ¥.. Ps: eer ey "251.

oe 20-—Population list

“Died ’s éxhibits Sh ee aw : iis bid .. isakes . 257 Y

a tter from T. Dodson Holeomb to Max Hager-

, nan LO Tee, "athe ae a er ee

4—Noties to all interested parties. dated Juz 19,. eek >

“sy *4968 ene. aA ER ee o— es ae

5—Statement of Rebeces 5 ‘Eldridge; J une 14: 1968 258

‘6—Statement of Helen Hetasns Ne a een oc e os ee

ities nie of = ry Hocker, 6-13.- 67 ccna ee

Rieger ee *

Gross application. for entor cement ‘of Board’s ’s Ord der «262

: : : ‘ :

“- . Bon -

ao * a

i, eee

. a o F ; and Pe

a sociation, AFL-CIO,.

* Date :

1968.

Oct. 18 Charge’ filed in

_€ases, complain

; Feb. 6 Hearing: closed.’

-_- June 23 Trial Examiner’

: his order corre

Aug. 2 ‘Chae filed i in ‘Case No. 25: CA-3214.-

ie eR United States Court. of Apioale ae

, ee ae aaa roe the Eighth Sent a.

| Pe er. 20,199" ee

* Cteas itardware Conrpay ah = S el S As SO

oe tricep sees Petitioner, -|<

J ¥ ae oe On Petition for. Re- =f

_ View and on Cross- |

National Labor Selaijaes ‘Board, Application” for if :

- Respondent, f - Enforcement of ai. $

Order of the Na-

| Retail CRerks! Union, ena. 725, | tional Labor Rela-

Retail Clerks International As- : tions Board. ' —

es : Pitervenoe, J-

~ CHRONOLOGICAL, LIST OF RELEVANT Fels

‘DOCKET ENTRIES

ie einey

Case No. 25-CA-3261,

7 - Nov..27 Acting Regional. Director’s ‘order consolidating

t. and notice Ot pearing; dated.

‘Dee. 5. Petitioner’ s answ er,

Jan. 16 ‘Acting. Regional Director’ S a to con- *

: - Solidated complaint, ‘dated,

Jan. 2t:. Petitioner’ s amendment to answer, dated.

Jan. 29 Hearing Opened; *

$ ‘decision, issued (together with

nd pias: attached). .

, a) 4 + aes pis ?

% ee. ey

- i$ ’ - * _ af

nd * “8% f os

see : :

July 22 General Counsel's s ‘timited exceptions to ‘Trial .

uC : Examiner ‘s-decision,. reeeived. - = 3 ¢:

July 22 Petitioner’ s bill of exceptions - and. assignment .

and: error to Tr ial Examiner’ s decision, received.

"Mar. “4 Decisidn alk Order issued by the National Liber.

Perens ee Relations Board. i er ake ae

ae “Mar. 12. Petition for Réview filed i in Bighth Cirouit Court .

ar ee Appeals. —e ~

May 1. Petition, for LierFention granted. i :

es ee A ate tee

“Mar..24 ‘Decision issued by. Eighth Cireuit Court ‘of ‘Ap.

= ~ peals, ° . ;

. “Apr. 26 Petition. for Rehearing Denied.

_ June; 1 Petition-for (¥rtiorari filed in ‘Suprenie Court.

Jan. 10° Certiorari grated by Supreme Court. :

: . . os oe ; _ * «< 2 . .

; ”

CHARGE ‘AGAIN ST EMPLOYER

| ous Aug. 12, 1968) -

Son { Case No. 25-CA- 3214

a i Se Date Filed August 21, 1968 :

a > Employ er " Against W hom Charge is. Brought:

a. Name of Employer: Central Hardware Doaneiy:

_-b. Number of Workers Employed: 300. |

c. ‘Address’ « of Establishment (Street and number, ‘city,

State, and ‘ZIP- code): 3801. North Shadeland ‘and. 4707-;

.) est” 38th Street, Indianapolis, Indiana.

Ma Employer Representative to (‘ontact: ’ George W.-

Reed, 4200 North Union Boulevard, St. Louis, “Missouri,

‘ e, Phone Number: EV 9- 1000...

_— nS. Nip SOU aS a

& | hes

ar: Type of Establishment: Retail Hardware Stores: a

x - — i

NA Len Ra ES NI Neca wo ne

; Identify Principal Product or. Service: Hardware. eo

“4 DP above-named employer has engaged in and is en-, 3

gaging in unfair.labor practices within the meaning of

_ -Ssection 8(a),\and subsections (1) and (3) of the National

_ Labor Relatiens .Act, and these unfair labor practices are

unfair labor’ pragtices - affecting ‘commerce within oe

meaning of the Act. =

|. 2 Basie<f'the Charge: 7. See

- On or. about May 15, 1968, and continuing to date, the

“ above named. Employer, by ifs- officers, agents and/or rep-

- resentatives has interfered with, -Testrained, and coerced. -

its employees in the exercise of their rights guaranteed in

Section. 7, of the Act, as amended:

Qn or about July 8, 1968, an employee of the above. .

~named Employer, Marilyn Ragle, who resides at 3917.

Vinewood. Avenue, Indianapolis, Indiana was suspended

for 3 days because of her activities in behalf of Local |

’ No. 725.

* On or about Aug. 16, 1968, an ethployee of the above °

named Employer, Rosita J:, Squires, who resides at 6221.

. East 43rd .Street, Indianapolis, Indiana was fired because °

of her activities on behalf of Local 725.-

On or about August 1, 1968, the Employer by its officers,

agents, and representatives assigned different lunch pe-..

riods to. Rosita Squires and other employees and by way of |

surveillance during such periods, interfered with employ-

ees’ activities on behalf of Local No. 725. -

3. Full name of Party Filing Charge: Retail “Clerks -.

1 No. 725.

38: 1520 East Riverside Drive, Indianapolis,

a et ‘lephone No.: 635-2488,

4% 7 ’

See we ae oe b

5. Full name of Natiodnd or Taternationsl aher: ‘oe

ganization. of Which It Is an- Affiliate or Constituent Unit:

Retail ‘Clerks International Association, AFL- CIO:

6. Declaration:

e declare that. I have read the above charge and that

the statements therein are true to the best of my know l-

edge and belief. ts ; |

By. CHARLES E. MERCER — , "Director of Organizing

a of representative or Ss (Title, if ahy)

‘person filing charge)

1520 East Riverside Drive ° 635-2488 * *) August 21, 1968 .

" (Address) _ '{Belephone number) (Datey

CHARGE AGAINST EMPLOYER

AR iled October. 18, 1968) *

“Case No. 20-CA- 3261

*:Date Filed October 18, 1968

1. Employ er Against Ww honisCharge Is Brought:

a. Name of Employ er: Central Hardware er

b.” Number of W orkars Employed: 300.

_ -.@. Address of Kstablishment: 33U1 North ‘Shadeland -

7 and 4/07 West 38th Street, ‘Indianapolis, Indiana.

a Employ er Representative to -Contact: George W.

Reed, 4200 North Union Boulev ard, ot bonis, Missouri:

e. Phone number: EV 9-100.

f. Type of Establishment: Retail Hardw are Stores.

> g. Identify Principal Product or Service: Hardware.

h. The above- named employer has engaged i in and is en-

“gaging in unfair, labor practices within the meaning of

section 8(a), subsection (1) of the National’ Labor Rela-

tions Act, and’ these unfair labor practices aré unfair la--

bor. practices affecting commerce Within the meaning of’

. the Act. bs ‘

2. Basis of the’ Charge:

On or about July. 22, 1968, and continuing ‘é date the

- abovre*. named. ‘Employer, -by its officers, agents and em-.

ploy ees embarked ona campaign to Interfere, ‘restrain and

coerce its’ employ ees in the exercise of the: rights guaran-|

teed in Section 7 of the Act by ‘causing the arrest of Mark

Kappatanakas, a representative of Retail’ Clerks Union -

Local No. 725;'a/w Retail ‘Clerks International Associa-

tion, AFL-CIO mer ely because he was present in the Em-~

ployer’s parking Jot, used by the public, and also by -

; threatening to cause the arrest of agents of said. labor

organization ‘merely because ‘they. were engaged in or-

ganizational activ ities in behalf of said labor organization.

By the above ~.and other acts, the above-named em-—

ployer has interfered With, restrained, and coerced em-

. ployees in the exercise of the rights guaranteed i in ‘Section |

i of the Act.

3. Full Name of Party Filing Chatge: Retail Clerks

Union Loeal- No. 7235, a/w Retail Clerks International As-

., Soclation, AFL-CIO,

. a. Address: 1520 Rast Riverside Drive, Indianapais

_ Indiana. 46202.

4b. Telephone Netbeans 635-2488,

9. Full Name of National or International Labor Or-

* ganization of W hich It Is an Affiliate or Constituent. Unit:

Retail: Cler ks International Association, AFL-CIO.

“

6.. Declaration:

I declare that I have read the above charee: and that the

statements: therein. ‘are true to the best of my knowledge

and belief. | |

By. EDW ARD'D. STAHL; JR. ~-Business Representative ;

(Signature of representative or (Title, if ‘any)

-berson filing charge)

a0 East: Riverside Drive — 635- 2488 * October 18, 1968

i (Address) (Telephone » number) - (Date)

Jee®

_, Consolidated eagle and Notice of Hearing, and al- -

“ORDER CONSOLIDATING: CASES, COMPLAINT,

AND. NOTICE OF HEARING ©

(Filed November 97, 1968)

, S-

‘It having bicen:-elenieged: te Chee: No. 25- Cu A\- 3214 and in

Case’ No. 25-CA-3261, by Retail Clerks Union Local No.

725, Retail Clerks, International Association, AFL-CIO, .

herein called the Union, that Central Hardware Company,

herein called Respondent, has engaged in, and is engag-

ing in, unfair labor practices affecting commerce -as: set

forth and defined in‘the National Labor’ Relations. Act, as~

“+ amended, 61 Stat. 136, 73 Stat. 519, herein called tlie Act, . -

the General Counsel] ‘of the National Labor Relations

Board, herein called the Board, by the: undersigned Act- -

ing Regional Director for the Twenty-fifth Region, havi ing

: duly considered the matter and deeming it necessary in- -

order’ to effectuate the purposes of the Act, and te avoid

unnecessary costs or delay, Ss

~ Hereby Orders, pursuant to Section 102.33 of” the

Board Rules and Regulations—Series’8, that these cases.

be, and they hereby” are, consolidated. =e -

—_-— ——

Said. cases having been consolidated for hearing, the

General Counsel of the Board, on behalf of the Board,

by the undersigned Acting .Regional Director, : pursuant

* to Section 10(b) of ame Act and the ‘Board’s Rules and

Regulations, Series , Seetion 102.15, hereby issues this. ~

leges as ‘follows: *. |

= ay (a) The original charge in Case No. “35-CA-3214 Was ~

filed by the Utrion on August 21, 1968, and served on Re-

-spondent by registered’ mail on or about August 21, 1968.

. (Db) The original clintge in Case No. 25. A-+3261: was:

< filed by the Union- on October 18, 1968, and served on

a oe

1968. , 7 \ .

2. (a) The Respondent is, and has been; at all times

material herein, a corporation duly organized under, and

= maintained its principal office and place of business -at

and the West Store, respectively), herein called the In-

* dianapolis facility; and is, and has been at all times tha-

terial herein, engaged at the Indianapolis facility: and the

‘other facilities, in the sale and distribution, of hardware,

and related products. - | .

| (c) During the past ‘year, a representative period,

- Respondent, in the course and: conduct of its business op-

which exceeded $500,000.00.

-Respondent, in the course and conduct of. its business op-.

erations, purchased, transferred, and delivered to its fa-

- which were transported ‘to said facilities directly from

States other than the State Wherein. said facilities were

_ * located. :

material herein; an employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act. . -

) ton’ 2(5) of the Act. — |

existing by virtue of, the laws of the State of Missouri.:

_(b) At-all times’ material herein, Respondent has.

. erations, sold and distributed products, the gross. value cof .

(d) During the past year, a representative “period;

Respondent by registered: ail on or about October 18,

St. Louis, “Missouri, and various other facilities in other -

States of the United States, including facilities at In-:

} ‘dianapolis, Indiana (one at 3801 North Shadeland, and -

"one at 4707 West 38th Street, herein called the East Store.

. cilities, goods and materials valued in excess ‘of $50,000.00. -

_(e) “Respondent is now, and has been at all times —

3. The Union is, and has been’ at all times material. .

“herein, a: labor organization witlrin the meaning. of ‘See- -

\ e .

‘ : .

\ * 8

F . .

persons occupied positions: set

4. At all times material herein, ‘the -following-named- ae

opposite - their respective

-names, and have been and are now agents of the Respond. -

ent at its facilities, acting on its behalf, and are super-

- ‘+ visors within the meaning of Section 2(11) of the Act:

Stanley M. Cohen —

. West. Store aA Sy

eavk eons - Bernstein — -

Max Hagerman © —

Rene Cuvellier a

Phil Bowers | Oe ee

a _. George Reed —

‘Vice President

President

Supervisor

Store Manager

_ Super Visor. .

Super visor

ru “gs. Since on or sinout February 21, 1968, ‘and contin.

ike to. date, Respondent has: interfered ° ‘with, restrained,

_~ /and coerced, and is interfering with, restraining, and C0- »

_ereing its employees in the exercise of rights: Teented:

“in | Section 7 7 of the “Act, by thie following acts ‘and conduct:

a 2 (b) ‘Respondent,. by its following- nanied: supervisors

and agents;-en or about the dates set opposite. their names, }

interrogated its employ ees concerning their own. and other

employees’ Union membership, activities, and desires, at

its West Store:

oo Reed — About early’ July 1968; J uly 6, 1968

_ Bernstein — - About. late J une 1968 - .

{e) Responder | by ‘its sog@rvisor: and need George

, Reed, on or about June 13, 1968, at the West Store:

(i) threatened its employees they. would lose ex- *

isting. benefits if they. selected the Unien as their collee-

tive bargainin g. agent;

(ii) ‘promised its employees economic benefits

and other benefits if: they refrained from becoming or re-

maining members of the Union

or support to it; and_

or. giving any assistance

‘T : \- Gii). orally :promalgated and sinac@reed to Re. ff

_spondent’s employees a rule barring solicitation for the oe

Union at any time on- Respondent’s property without Re-

spondent’s approval, ‘ which -rule had. the purpose and

“effect of unreasonably obstructing and interfering with _

its employees’ Union activities. = ° =... «: ee

__, (d) After June 13, 1968, Respondent: disparately en-

| forced the. rule“ described in subparag ph 5(c) (iii) above,-

| -in that Mea es se ee ea ae

- . (1) Respondent permitted employees, and others

“opposing the Union to cammunicate and publis oS

, opposition to- the Union on Respondent’s] property and:

time; -.: +. ¢ Be ee or ONG oe:

‘ (ii) et Ey permitted employees opposing

“ the Union to circulate and. procure signatures on an anti-—

Union ‘petition « Respondents: property and time;.

| (ith Wotataiacdonk permitted solicitations for other

causes and purposes on Respondent ’s.property and time; <

ae erat as nek ae

(iv) Respondent prevented. and forbade employ-°

es and others favoring the Union from expressing and > “Ey

| publicizing their views on Respondent’s.- property and |

5. (e) Respondent, by its supervisor and agent George.

‘Reed, at the West Store, on or Vout July 8;-1968, and on

or about July. 6, 1968, threatened discharge and’ other -

reprisals if employees violated the rule described above. .

in sub-paragraph 5(e) (iii). - ne | |

— (f) On or about June 13, 1968, at the: East Store,

Respondent, by its superv4sor ‘and agent George . Reed,

orally promulgated and announced a rule barring solicita-

ton for the- Union at any’ time on Respondent’s property oo P

without Respondent’s approval, . which grule had the pur-_

ne a?

pose. and effect of unreasonably “obstr ueting and interfer.

. ing with, its enpiey ees’ Union, activ ities. ied

-(g)' On July B, 1968, Respondent, by its. ‘supervisor :

and agent Stanley M- Cohen, at. the East Store and at the

West. Store, promulgated and thereafter enforved a rule

barring Union organizers ‘from appearing anywhere on

Respondent’ S premises, including any. appearances on Re-

spondeiit’s -parking lot’ nraintained “by it for ‘the public,

whieh rule had the pur pose ‘and efféet of unreasonably *

| ‘obstructing and ‘interfering with its “employees” Union ;

$ activities. ° . 7

(h) On or out July | 22, "1968, Binion, at * the

. West Store, By its supervisor and agent Max Hagerman,

_ ‘in the presence of its employ ees, ordered Union representa- —

_. tives to leave’ e the” West Store, not withstanding that Hager-

-man ‘knew sa a Union representatives had, entered Re-

spondent’ S pre! uises to-do business as customers, and |

thereafter caused. said Union representativ es’ to be ejected

from Respondent’ S premises, arrested, and ‘removed from

the. a ina paddy wagon ‘by Indianapolis. poliedmen’

(i) On or about October 15, 1968, at the Kast Store

public’ parking lot, Respondent, ‘by its store manager,

ordered a Union representative to leave the public park- +

ing* lot, and threatened to and did summon Indianapolis.

policemen for the purpose of forcibly ejecting said Unica .

; ei ae ataame bia

(j) Ott or about November. 0, 1968, at the Ww est Store,’

Respondent, by its supervisors and agents. Rene Cu vellier

and Max ‘Hagerman, ordered a Union - representative to

leave the West Store and threatened to. call the police to.

7 enforce their orders, notw ithstanding thiat.said Union rep- .

resentative had entered Respondent’ S premises to do busi-

ness as a customer. -

~ (k) On or about: Noveniber ji 1968, at the. West

Store, Respondent, by its supervisors and agents. Rene

au: ee

Coveted aed Phil Bowe: ers, order ed a: Vision ropresestative

‘to leave the West Store

and threatened to call the police

‘to enforce their orders, notw ‘ithstanding that | said. Union.

. _representative had entered Respondent’ s premises to do

business as a, customer.

6. (a).On or about fae 8 1968, Recpaniak did /sus-

pend for three days the employment of Marilyn Ragle, an- e

‘employ ee of. said Respondent employed | ‘at the West Store.

{b) Respondent. did

‘suspend the émployee: referred |

to and named. above in paragraph 6(a) because said em-

ployee violated oe rule deser ibed above: i in Sub- ~

| et 9(¢).(ili).

7. By the acts - described above in Fnediied 6, and by

each “of said acts, Respondent did engage in,-andwis en:

practices: - -affecting commerce -

ection MO) anid Roe 2(6) -

| _ gaging - in, unfair», labor

within. the meaning of §

“and (7) of. the Act. :

_8. By the acts described ‘above’ in. poreivaube 3, 6, and

i,. and by each of said acts, Respondent did interfere with, -

7 restrain, and coerce, and

is Anterfering with, restraining,

_and coercing: its ‘employees in the exercise of: the rights ©

of the Act, and thereby did en-.

guaranteed. in ‘Section. 7

gage in, and is engaging

_ Ing commerce w ithin the

in, ‘hnfair Tabor practices affect.

meaning of Section 8(a)(1) .and

Section 2(6) and (7) ofthe Act.

9. The . acts of Respondent described in "paragraphs 5)

through 8 above, oceurring in connection with the opera-

tions of Respondent described in paragraph. 2 above, have

a close, intimate; and substantial relation to trade, ‘traffic,

and commerce among the several States and’ tend to\lead

|. to labor disputes buy ‘denin;

ig and ooetr one commerce and

the free flow of commerce, oe : a

10. The acts of Respor

unfair labor ‘practices affecting commerce. within the.

ident deseribed -above constitute

‘2

meaning of See 100 stad) and ). and Section 7) and F

vs (7)‘of the Act. i : |

Please ‘Take Notice. that on the 29th pr of. Jeears:

1969, at 10:00. a.m. (EST) at the Hearing Room of the!

Board, Region Twenty- -five, Sixth Floor, ISTA Center, 150

. West Market Street, Indianapolis, - Indiana, a hearing will

_ be condueted before a duly designatid Trial ‘Examiner of .

‘the National Labor Relations ‘Board on the allegations se ;

- forth i in the abov e Consolidated Complaint, at which time’

- and place: you will have the right to appear in person; or

. otherwise, and give testimony. Form NLRB 4668, State. .

“ment. of Standart ‘Proeedure in Formal Hearings Held’

Before the National. ‘Labor Relatioiis’ Board in Unfair

. Labor Practice Cases, is attached.

You are further notified that, pursuant. to. Sections

102,20 and 102.21 of the Board’s Rules and Regulations,

. the- Respondent shall file with ‘the undersigned Acting -

Regional Director, acting in this matter as agent of the

National Labor Relations Board, an original and four (4)

copies of an answ er to said Consolidated Complaint w ithin |

ten: (10) days from: the. service thereof and that unless it

dges so, all of the allegations in the Consolidated: Com-

plaint shall be deemed to be admitted to be true and may. :

be so found by the Board. - Immediatety ‘upon the filing

- - Of its answer, Respondent? shall serve. a copy’ thereof. oni

each of the other parties. ir

. Dated at Indianapolis, Indiana, this , ftth day nee No: .

"vember, 1968. :

GEORGE M: DICK

Acting Regional Director

rg National Labor Relations’ Board:

wee Begign Twenty-five. .

_ Sixth Floor, ISTA Center

150: West Market Stréet.”

Indianapolis, Indiana 46204

“

i] 4% nen ee 4

ES . . .

Me +13 — me Hom cigs

So c .

"ANSWER. ae : a

of Filed Dee, 5, 8)

~ Comes now Central actcked Costipany._ Responderit ,

~ herein, _by and through its’ attorneys Keith E. Mattern, and

2 makes its: Answ er to the ae eaeees ‘heretofore filed:

1. (a) Respondent admits ” ‘Teceivingy copies . of the

: charges. herein referred to but i is without knowledge. as. to ae

a the date they were filed. ,

ee by Respondent admits the. ‘llewatioce: of paragraph ee

| “ of this Complaint.

(a) Respondent. admits the ne allegation vf paragraph °

: -ial of this Complaint.

. (b) Respondent admits - allegation of f paragraph: :

“2S of this Complaint.

‘(e) Respondent admits the allegations of paragraph

~ 2(e) of this Complaint. .

{d) Respondent. jihiiite: the allegations of paragr aph.

2.(d) of this Complaint:

fe), Respondent idinitts the Wiseilions of | ‘pard¥taph

§ de) of this Complaint. hn eee a , de

‘3. Paragraph 3. .relatés mildly to the. Pokon ‘and thére-.

fore, Respondent neither adinits nor denies the allegation ,

therein contained.

4. Respondet admits’ the allogitiona’ of patagraph 4.

~ and presunfes*that ...-,..7.. Bernstein j Is, in mene, Phil

peels one: of Respondent's S supervisors.

. (a) Respondent denies. ‘the allegations Mrtained in

mragraph 5. Ae) |

chang 3 . . 4 : =<. 2 se : Beas y

\ . Pay. . ) : |

med4— ." ff

Peet ty

(b) Respondent denies the allegat; ons contained in.

ae la aed 9.(b). ~ 4

§.

(¢) Respondgnt i is without know ledge as to the iden-

“tity. of the undisclosed’ supervisor.

® . J

.. — >) Respondent denies the allegations contained

, in | paragraph d.(e) (1). ae ;

ry 7 < °

(ii) Respondent denivs, the allegations contained .

-in _peragrape 3. (c) (al).

: ve 7 (iii) Respondeiit denies ‘the iillegations contained

in paragr aph 5. ¢e) (ili).

mw (a) Respondent denies: the dilecations contained in

paragr aph 3.(d).

(i) Respondent denies. the allegations contained

in paragraph 5.(d) (i). | .

tii) Respondeit ilontes the alegations contained

in paragraph o. (d) (ii). ; a —_ ,

. s? » (iii) Respondent denies the allegations contained

in paragraph d.(d) (iii),

_ (iv) Respondent denies s the eieae el coittained

in paragraph. 5.(d) (iv). |

key enon denies the allegations contained in ©

paragraph 5.(e).

€ |

- (6) Respondent denice the alleg gations contained in

: | paragraph a (f). | “4.4, *.8

Co Cg) Respondent denies ‘the allegations contained in °

paragraph 9.(g). .

or. ). (h) Respondent ‘denies the allegations contained in’

wie paragraph 5. (h). _

(i) Respondent: dénies the allegations contained in,

paragraph 5.(i). 7 ;

ae | on 7

(j) Respondent denies the allegations contained in |

paragraph 9.(j). | a

| (k) Respondent denies the allegations contained in

paragkaph 0.(k)..

6.. (a). rr adits. the . allegations contained in.

ain ee 6.(a).

(b) Respondent has - prev iously dinniadl the allega-

tions contained in _paragraph 3. (¢) (ai) and therefore de-.

nies the allegations contained in paragraph 6.(b).

7. Hospoadent denies the Allegations contained in para-

8 Respondent denies the. allegations contained in para-

graph 8. .

es ’ G.

o Respondent denies the allegations contained in para-

graph 9.

10. Respondent denies the e allegations contained in para-

- graph 10. - |

December o; 1968. a oo

| . KEITH E. MATTERN

Attorney for- Respondent

AMENDMENT TO CONSOLIDATED COMPLAINT

(Filed Jan. 16, te

‘The aihdetsteened Acting Regional Director of. Region

Twenty- five hereby amends the Complaint in Consolidated .

Vases Nos. 25-CA-3214 ‘and 20-CA-3261 issued by: the un-

lersigned on November 27, 1968, in the following respect: —

In. sub- paragraph 3b). thereof add the: ‘following new

- Hanie and date set opposite his name:

“Réne ¢ Caverlier uni unknown date in Uctober,

1968.”’

; »

You are furthes notified that pursuant to Sections “102. 20. .

and 102.21 of the Board’s Rules and Regulations, the Re- |

spondent shall file with the undersigned, “Acting Bovioial

-Director, acting in this matter as agent of the National

Labor Relations Board, an original and four (4) copies of ”

an answer to the above Amendment to, Consolidated Com-

plaint within ten (10) days from-the service thereof and

- that unless.it does so, all of the allegations in the Amend-

ment to Consolidated ¢ ‘omplaint shall be deemed to be ad-

mitted to be true and may be so found by the Board. In-

mediately upon ‘the filing. of its answer _ Respondent shall

serve a copy thereof on each of the pihior parties.

Dated at Indianapolis, Indiana, this 16th day of Januaty,

1969. | '

| GEORGE. M. DICK

-. Aeting Regional Director’

National Labor Relations Board

oop.) * Region Twenty-five:

“ #4 Sixth Floor, ISTA Center —

‘oe tS 150 W. Market Street

Indianapolis, Indiana 46204 ®

_ AMENDMENT TO ANSWER»

e .. (Biled Sa. 21, 1969)

Comes how Central Haviw are? Comupany, Respondent

. herein, by and:through its attorney, Keith kb. Mattern, and

~mnakes its Amendmitt to Answer to the Complaint hereto-

nore filed:

RENE ee

}

ry . . | . i 47 . | oe . 1 /

o..(b) Respondent denies the allegations contained in |, *>

Amendment to paragraph 5: b) of the Complaint.

January 21, 1969: _ a .

| _ KEITH E:MATTERN'

Attorney ‘for Respondent

. 1509 Washington. Ayenues

Co | St. Louis, Missouri

. CHestnut ‘1-4000

[1] - TRIAL EXAMINER'S DECISION . | /

(Issued Jan. 23, 1969) - :

Statement of the Case ° |

. : . i . - 7 . i . -]

Alvin Lieberman, Trial Examiner: The tria¥ in this pro- |

ceeding, with all parties: represented, was- held: before’ me te

in Indianapolis, Indiana, on January 29, 30, and 31, and ...

February 5, and 6, 1969, upon the General Counsel’s ecom- a

. plaint! and amendment to ecomplaint,2 dated respectively:

November 27, 1968, and January 11, 1969,* and respond-

ent’s answer.

[2] In general, the issues litigated were whether respond-

- ent violated Seetion S(a)(1) and (3) of the National Labor

- Relations “Act, as amended (herein called the Act). Par-

ticularly, the questions for decision are as follows:

' The complaint was issued on separate charges filed on Au-

“gust 21 and October 18.1968. by Retail Clerks Union Loéal No-

25, Retail Clerks International Association, AFL-CIO. , .

- During the trial the complaint and its: formal amendment

were amended) by. substituting the pame “Rene Cuvellier” for

*"Rene Caverlier™ Whenever it appears in those pleadings. :

* Unless. otherwise noted. all subsequent references to the.

complaint include its amendment and all dates hereitiafter mén-

‘loned without setting forth a year fall within 19s. ,

2 , ie :

&. Did resporident violate Section 8 (a) (1) of the Act by

Soetetvedy interrogating employees? ?

. Did respondent violate Section $(a) (1) of the ‘Act by

eeioae and promising benefits to, employees to induce

them to refrain from supporting, or becoming members of,

‘Retail Clerks Uitipn Local No. 725, Retail Clerks Tnter-

‘national Assoel ation, AFL-CIO (herein? called the Union)!

3. Did respondent violate Séction 8(a) (1). of the Act by

its ‘‘no-solicitation’’ rules and by the manner in which

they were applied? .

‘4. Did respondent violate Section S(a)(1) of the et by

ealsing the arrest, and threatening to cause the arrest, of

-representativ es of the Union? 74

2». Did respondent violate Section (a) (3) and a) of the

Act by laying off an employee?

U pon the entire record, upon-my observation of the wit-

“nesses and their demeanor while testifying, and upon care-

ful consideration. af the arguments made and the able

briefs submitted by: the: parties, I mare the following:

. : “

Findings of Fact! et

l sf Furisdiction

a Respondent, a “Missouri corpor ation whose prepa of-.

fice is located in St. Louis, Missouri, operates several re:

. On respondent’ Ss motion made at the cone ‘lusion pt the Gen:

eral Counsel's ease-in-chief paragraph 5(d) (iii) and (iv) which

‘also alleged independent violations of Section S(a)(1) were

dismissed, no evidence having been offered by the General Coun-

sel. to support the former and the latter being ‘redundant.

» Issued simultaneously ix a separate order correcting the

stenographie transcript of this proceeding in several respects. °

8 Respondent's motion, to dismiss the complaint, madé at the

close: of the trial, upen which decision was creserved and all

other motiens upén which decision was reserved are dispose dof

in. accordance with the findings and conclusions set forth-in this

Decision.

+) 0 PRE Ome oe Rea aN

/ . r - 2 . ;

* : : 19...

™ :

e -

tail hardware stores, two of whieh are ionted : in Indian-

pol Indiana.* During the year ending [3] on November.

. 27, a representative period, respondent’s gross volume of

-business. exceeded’ $500,000. In the same period respond-

‘ent purchased and received merchandise valued -at more

than $50,000 from suppliers located in States other than

those in which it operated: Stores, Accordingly, I find that

respondent is engaged in conimerce within the meaning of

the Act and that the assertion of jurisdiction. over this

matter by the National’ Labor Relations Board (herein

-ealled the Board) ‘is warranted. Carolina Supplies and

Cement Co.,-122 NLRB-88, 89: Catalina Island Sightseeing _

Lines, 124 NLRB 813, 815.

IL The Labor “Organization Involved -

|. The Union i Is a labor or ganization within the meaning of .

‘the Act. | ee |

IIL The Alleged Unfair Labor Practices *

| A. hitroduction

Briefly, this case concerns itself with events: which oe-

curred during the Union’s campaign: to or ganize ‘the eni-

-ployees “working. in respondent’s two Indianapolis stores.

" Among these, Were a speech delivered to respondent? S‘em-

ployees- by its’ vice president, respondent’s promulgation

of two ‘‘no-solicitation”’ rules, its interrogation of en

| ployees, the arrest in one of respondent ’s stores “of a union

representative and threats to hay e. another arrested, and

the lay off F of. an employee.

°.

~The com jlaint. alleges, andl the General ‘Counsel c€on-

} ’

tends,> that respondent. violated Section 8(a) (1) of the Act

———_—-—-—_ ‘e ,

' This case deals only with respondent's s Indianapolis stores.

> As.the contentions of the General ( ‘ounsel and’ the Union are

mn lanes part similar, unless otherwise indicated they: will be re-

ferred. to her einafter as the Gener al Counsel: ‘Ss contentions,

iy eats and promises: made by respondent? Ss vice pres. -

| ident during: the course ef his speech, by its two ‘“no-solici-

tation’? rules* and» the disparate manner of their ap-—

plication, by. its interrogation of employees concerning .

. compliance with one of the rules and. respecting matters

-relating to the Union, by causing the arrest of & union

vere -represeftative, “and by threatenits, tohave- ‘amather~<dr—_

~ .. rested. It is further alleged-in the complaint, and. con-

tended. by ‘the General Counsel, that by ‘suspending an

* ciployee to- punish, her for having violated one of the

‘*no-solicitation”’ rules claimed. to be invalid, ‘respondent. |

- contravened Section 8(a) (3).2° .

- [4] For its part respondent denies that the speech given

by its vice president contained threats or promises of bene-

fit. Asserting that its ‘“no- solicitation’? rules. were. valid,

if seemingly too broad -not improperly énforced, : re-.

spondent argues: that the. Act Was not violated by its pro-

mulgation’ or enforcement: of the rules, by its laying off

an employee. for not having complied with one of:the rules,

‘or by the interrogation through which it learned of the

_ As will-be nore fully set forth below, one of these rules ex-

ad nonemployee representatives of the Union from respond-

ent’s parking lots. The other applied to employees and was |

e+ not’ limited to respondent's” pirking lots. :

10 In pertinent part these sections provide :

‘ + Seetion S> ay It shall be-an, unfair labor practice for an

7 employer— $4 |

(1) to’ interfere” wit, restrain, or coerce eniployees

in the exercise of .the rights guaranteed in section 7;

(3) by dischimination in regard to hire or tenure of

employme nt... . to éncourage or distvurage membership

-in-any labor organization.

Section 7, insofar as releyant, provides as follows:

Set. 7 . Employe es shall, have the right to. self- organization. ;

to form, join, or assist labor organizations, to bargain col-.

lectively through representatives of their own choosing, and |

to engage in other concerted activities -for’ the PUEPOSe of

collective bargaining or. other mutual aid or protection. .

ee eee

aes) ae

“rule's transgression. Insofar as the arrest and threatened:

arrest are concerned respondent contends that’ it. was not

RS obliged to permit union representatives to enter its stores:

that it did not. want the union répresentatives in its Stores;

that when they refused to leave upon ‘request it threatened

to, and did, eall the police to eject them;*that one union.

d representative nevertheless remained in its store; and that

when .a policeman arrived, lie,on his own volition, without

being requested to do so by respondent, arrested the union.

representative. : wie eee

_ B. Facts and- Conclusions Concerning Respondent’s Prem.

ises; Its Employees and Their Availability for Organiz-

_ ing Purposes; and the Union’s Organizing Campaign"

1. Respondent's stores and’ parking lots

Respondent operates two stores on offstreet enclaves in

outlying areas of Indianapolis. One of its stores (herein ’

called the West [5] Store) is located near the intersection

of West 38th Street and Lafayette Rodd. The others ore

(herein ealled. the East Store) is situated near the inter-_

section of Hast 38th Street and Shadeland Avenue.

_°™ These findings and conclusions are being made here. at the

outset of this Decision. in order to furnish a frame of reference,

within whielr to- consider respondent's “no-solicitation” rules. To’

bring ‘the ryles. themselves, into focus, in this connection, their:

provisions will be set forth in: this footnote even theugh it. will

be- necessary to ‘restate them later when their validity will be

discussed at length, at which time] will also’ take ‘up fhe par-

tes’ major arguments in this respect. However,.to the extent

‘that the contentions of the parties relate specifically to the

findings and conclusions here made they will be considered here.

although they may again be considered in another context. The

\two rulés in question follow: ,

"1, “{N Jo: solicitation may be made on company premises

for any purposes without prior Management approval. Vio-

latiotis 2. will result) in disciplinary aetion including the

possibility, of dlisnrissal.” :

2. “[Mjanagement | will) keep all union ‘organizers off

jcouupany | ‘premises buth inside and outside.” o

.¢

——

* The roads, which —— near reapondent! s stores are

busy public highways 2 along which traffie moves at fairly

high rates of oe There are no sidewalks alongside

the roads in question in the vicinity of respondent’ s ‘Stores.

Although. employees are stationed in the sales s freas of

- respondent s stores,. their main function is to atlvise Cus-:

tomers as to the nature and purpose of the merchandise

displayed for safe. Insofar as actual salés are concerned,

ves.- Shopping carts

customers, tii the main, sérve ‘thems

“and baskets are provided in w hich goods selected by cus:

tomers may be carried to chee Kout lanes, located near the’ .

store’s front doors, which are manned by employees. : It

appears, therefore, that the hardy rare stores are operated

very much like the familiar self-service grocery markets.

In each of respondent’s stores there are storage areas,

which customers do not enter: There are also lockerrooms

and lun hrooms Set aside for use:by employees « during their |

free time. _Althoigh customers do not, like employees, eat

inthe West Store employee lunchroom they do, from time

to time, enter it for the purpose of buying cigarettes. and

Veandy bars w hich are there offered for sale.!+’ In addition

‘to using the. employee lunchrooms and lockerrooms during

** their off-duty time employees may, and do, eat their lunch

on respondent's parkitig lots, ta be deseribed below. ¢

[6] Respondent leases its Indianapolis’ stores. Also ‘under’

lease to respondent at the site of each store are paved off-

street areas used as parking lots. The major portion of

Iz Ree ent surveys. -made’ by Indiana state “and t punty agencies —

. more thar

yiear which

39.000 vehic leS pass ‘cach of. the: street” ur ersections |

respondent's ° stores are located. ° Ee 2

13 Posted speed liinits of from 35 to -milesn hour are’

typical of the streets in question. .

1 Although not too clear from the reeerd, it: would appear

that the cigarettes and candy bars sold in the West Store em-

_ ployee lunchroom are dispensed by vending zmachines,

a .

tee vs 3 PEA EOE

‘ ; , «

re. “*. 4 OR ape YS BEDS : ” X'

eae 6a Ser? we ; -e

ie ata : 7 \ :

\\ Me

each lot is directly in front of, the store to which it is,

adjavent, the remainder lying fo. one side of the Store.

Each lot is large enough to accommodate about 350 ears.

_. Employees who drive to work are required to park in cer-

tain areas of these lots, generally thosé-sections along the.

side of the’ store in which they work. \- -: |

. The enclaves. in which respondent’s stores are located

also contain other business enterprises. Among these, at:

the sité of the West: Store, are a restaurant, & loan ‘com...

: pany, and .a carpet store, each with, its own parking lot,

much smaller in size than RN, atte At the East Store

site are an* office building, an esta lishment at which auto--

mobiles are washed, and a truck Service station. which

has its own parking space.) —. p

‘There are no fences!® or gates around respondent’s park-

-, ing lots, nor does: respondent station guards there for the

~ purpos.-of we using. their use to anyone. There are, like- ;

wise, 20 signs barring trespassers from the lots, . Eo

The areas which eontain respondent’s: stores and the

other business enterprises described may, be entered!? from.

_ 2 Respondent asserts, despite the presence’ of other business

enterprises,:some of which are retail in character, that the com-

plexes in which its stores are located are vot shopping centers. :

Accordingly, respondent argues that Amalgamated Food Em.°

Ployees Union Local 590 et al. v. Logan Valley Plaza et al., 391

U. 8. 308, and Solo Cup Company, etc., 172 NLRB No. 110. on

which the General Counsel heavily relies in support. of his claim

that the rule’ excluding | nonemployee representatives ‘of the. :

Union from respondent's parking lots is invalid, are inapplica-

ble. However, whether or. not respondent's Stores are ingshop- _ :

. ping centers is immaterial], inasmuch yas’ the Board, in PRiced.. Pas

Discount Foods, Inc., etc., 162 NLRB 872, 874; equated

a single store parking lot jo a shopping center parking lot. °

. e ‘ . . bal . 7

'’ The only fence on either of the locations. is one maintained

_ : *-.- °

around its property at the East ‘Site. by the car washing. estab-

lishment located there. ° .

'* The entrances described in this paragraph are also the only

‘alts from the areas in question. oo oo

‘hake adjoining roads’ only. at certaiti places. There is’ one

entranee.to the West site from “West 38th Street and two

from’ Lafayette Road. The Kast location may be entered

from Shadeland Avenue at several points, three of which

are directly in front of responde nt’s. parking lot. It may

also be entered: by means of an access road which ‘runs

from respondent's: parking lot to Kast 38th Street: At

some points at w hich automobiles enter and leave these

‘areas’ peopley miay stand without danger — from passing

“4 rafiic. J

(7) | Ge) . 2. Respordent’s entployees

Respondent took posse ssion of. its Indianapolis stores on.

April 15. Between that/date and June 3, w ‘hen they. were |

-opened for business, respondent hired employees and “was

“engaged in-preparing: to open its stores.” |

There are about 125 people workifig in each of. the

stores. This number has remained fairly constant since

vespondent first oceupied Shem. 3 ae 3

- Most of respondent’s employees live i in’ various sections -

* of Indianapolis, a city whose population exceeds: 476,000.

About 50 employees live7in surrounding towns.'> . The

average distance from .these : localities to the stores in

which employes living in them wor ked is about 20 miles,

_ Several employees who live’ outside of Indianapolis have

rural route addresses. These do not locate the employee

concerned -geogr aphically anil are difficult to find.

A few. of responilent’ s ‘employees walk to work. The

remainder arriye in automobiles driven’ either by them-

selves or others. Although employees w ho drive, to work

, -

AS The findings respecting respondent's chaaibesers ‘are. based

", upon its payrolt records. for ‘the’ period ending -on June 1;

whic h are in. evidence as. ‘Ge neral Counsels Exhibit 6- There

is’ no contention that the genera] situation: portrayed ‘by these,

' records did not obtain at any amaterial time.

“

a ae ae

are required to leave their éars in ‘certain specified ‘areas

of respondent’s parking lots,‘they are not. limited jn their

choice of the’ lot.’ entrances and exits. Consequently,

all are used by employees as: their convenience dictates.

Respondent issues distinétive orange colored vests and

smocks to its employees.. These have been worn by em-

ployees since about June 3, the date on which respondent’s

stores operred for business: In addition, they wear name

There’ are two newspapers. of general circulation pub-

lished in Indianapolis, and. respondent’s merchandise ad-

_. yertisements appear in these. Also published in Indiana-

x polis. ang some 40, so-ealled “negihborhood/ newspapers.:

. There are 4 television, and about 15 radio stations whose.

btoadeasts’ are ordinarily able to be seen and heard in the

Indianapolis area. Ae esas SN 7

In connection with its contention that several avenues of

communication with its eniployees in addition to talking |

to. them on: the parking lot were open to the Union; re-

spondent would hhave“me find that: its. employees .cus-:

tomarily réad the’ two newspapers which carry [8] re-

‘pondent’s advertisements. This’ finding, were I to: make

it, would have to. be based solely on an assumption and

opinion given by Charles Mercer, the Union's director of

organization, that. retail. employees ‘‘ordinarily read the |

hewspapers to watch the ads: in the stores in which they _

work so they’re’ familiar with what’s on sale and what

isn’t on sale.’’ Whilé this opinion as to the reading habits

of retail employeés may be well founded ‘insofar as their

perusal of their stores? advertisements is’ concerned, I feel

that it is.an insufficient basis for a finding that these em-

ployees read’ other parts of ‘the newspaper in’ which the

advertisement appears. “Accordingly, there being an ab-

sence of actual evidence. on the subject, I do not make the

finding suggésted by respondent,..°.°~ (°! | Mee

Z =

. e ‘

1 .

. aires * k yee . *

. . Wes cin aie : ‘ ba

. $ . J .

ployees. . «3 .

residences 0

- those w hom =o at home of the benefity of uriioniza-

3: The U ion® sor ganizing campaign

~The Union's organizing campaign began’ ‘in the latter

part. of May. ‘During its. course the Union ‘used several

methods of : ‘obtaining support among ; -respondent? 8 em-

Represtitatives of ‘the Union from time: to timne walked

through respondents stores. After noting the appearance

and name tags-of the employ ees, who. could be recognized |

_ by their distinetiv é vests and. smocks, ‘the. Union’ s_repre-.

_ sentatives spoke: to them on the parking” lots at the be-

ginning and end of the day and during® their lunch period —

and free time. Eniployees who. favored the Union talked -

to their colleagues‘ in the peeks and also on the parking

ployees hich, by Jul¥ 29, Was about &0-percent nptaaing

Using this list representatives of the Union visited the

employees and- there sought to convince’

tien. © .

Sy . -

Respondent “nod licitation’? rules pr reveniied thé

Union from ‘continuing its tore and parkitig lot communi-

. cation with employ ¥es. The * es, of course, did not. pre-

clude. the Union from .pursuing % 1er_ methods, of. reach-

ing employees. with its message. Theyg, as suggested in

Solo Cup Company, etc.,. 172. NLRB No. 4Q, could have

-inéludéd distribution ‘of literature at the points _which

~ employees entered and: left the parking Jots;, the- useof

radio,. television, and new spapers: meeting employees on

the streets ‘of Indianapolis, where most’ of them ‘lived:

and the continuation of visits to employees’ homes.

Concerning: the latter method, here, unlike the situation

* which ‘ Was present in Solo Cup, the Union had a fairly

complete list: of * employees’ names and addresses and

Fepresentativ esof the Union continued to visit thaphomes

BP RD Peay PEA SBT ty 2 ee

‘of employ ees . _after. respondent’s "tno. solicitation’? riles

were announced. . The principal. problem’ which this en-

tailed, aside © from the Substantial difficulty of, finding the

homes of employees Who lived in rural areas surrounding

. Indianapolis, -was that the employees Wwer@@@bsent from |

their: homes more often than not ‘when the Union’ s {9}

representatives called. In this regard, Mercer, the Union’s.

: director: of organization, testified that a union representa..

“average of five or’ six tines j in order to actually make con-

~ taet With the person” sought.

' Merecer’s testitnon'y was based on his general. organizing

experience. It does not appear from the evidenee that.

she visited’ the home of any employee of respondent. How-

ever, Mark Kapetanakis, one of the. Union’s organizers,

did. The results which he’ obtained’ support Mercer 's.

conclusion. “Of 50 to 60° employees at wliose homes

_ Kapetanakis called, he succeeded in ‘talking to from 7 to

10; the rest’ Were out when visited by him.

Again unlike the situation. which obtained i in. Solo Cup,

union representatives can, ds I have found; safely stand

at some of the points at whieh, automobiles enter and

leave the areas’ in which respondent’s stores are located

for the purpose of distributing literature to, .and other-

Wise communicating: with, respondent * S employees. The

; Union, how ev er, did not engage in, this practice. — .

‘To have done so’ would hav e required the union repre,

_ sentative participating in this procedure to be able to de-

termine which’ of ‘several entry or exit points would be

_ used by the employ ees, who could choose, any, and to be

ible. to distinguish the cars in w hich eniployees | ride from

those of other people ‘driving through those points in time '

_to stop the eniployces’ cars. Even: were T° to find that

“these difficulties could have been overcome, which the ~

evidence - does - vot seen’ to warrant, had the Union in-—

- _—

tive making a ‘‘home call . - may have to-go baek on an

”-

: hg

stituted the program shere under consideration it) would

have ‘resulted in Tines of automobiles backing up into:

the parking, lots and tratl¢ ticups on the’ surrounding

r oads,

Concerning the Union's use of newspapers, radio, and

~~. television, there are, as [ have adready round, more than’

40 newspapers published in Indi inapolis, angst’ + tekevision

and some 15 radio stations’ whose signals ea be seen and

heard there.” This ‘being so, I tind, as “did the Board in

Solo Cup, that were the Union to attempt to Communicate

with respondent's employees through these channels it

would have a problem in. . . deciding on the appropri -

ate Stations or newspapers,'” and would net be able to

reach the employees effectively .. . through,such media.”

[Emphasis in original} ~ ~ .* &

In arriving at the foregoing conclusion in Solo, a the

Board’ ‘vassunifed] that cost was no object.”*, In- the

instant ease the evidence establishes: that. cost) was, in:

deed an object. Respecting this, Mereer [10] Stated that .

the U nioy did not use radio‘and television in its organiz-

ing Campaign because of the tteost factor which is quite

high [and] very expensive in-addition to not knowing .

which station to put [the advertisement] on.’

Insofar as meeting en the street is concerned , Indian-

apolis, although not*as large as ¢ ‘hicago, the eity in which

the ev vents. giving rise to the Board’s ‘decision in Solo. Cup

took phice, *i nevertheless, a. substantial metropolitan

~- community. In Solo Cup, the employ ves concerned -lived

in and around Chicago." Similarly, here, respondent’ Ss en-

Tn this oe as Mereer, the Unies director of organiza-.

tion, testified “we have several radio stations im the Indianapolis

area. around Is at least. Tt ovtoyld be hard to distinet . sic

which one. radio station to put the advertisement ony” In ‘this

connec Tiel. ‘See also mi tindines, ‘set forth above, cohnee rhing the,

Indianapolis: newspapers i Which respondent's merchandise ad-

V er tiseme nts appear. .

ployees live. in various sections of Indianapolis and in its.

F surrounding towns. * Accordingly, it is quite unlikely that

representatives of the Union would, or could: be. expected

“to, meet any significant number of respondent's s employees

on the: ‘street.

In a not, too different context the Board in Solo Cup

distinguished the ‘situation: -—present there from the one

before the S Supreme Court. in N..L. R, B. v. Babcock &

Wilcox Company, 301 U.S. 105, 107. In Babcock & Wil-

cox, a large percentagé of the employees involved lived

-in Paris, Texas, a city of 21,000 people. Beeause of this

athe Court was of the opinion that nonemployee. union rep-

resentatives, barred by a ‘no-solicitation’’ rule from ‘a

plant parking lot could, reasonably be expected ‘to. con-

tinue to avail themselves of other methods of imparting

information. to the employees, which included *‘talking

‘with them on the- streets of Paris.” This. distinction is

equally applicable. here: 1 find, therefore, that the method

of communication between the Union and respondent’s

employees here under discussion would be as impractical

as any of the others which hay e been considered.

iecordiuely: | conclude that. there: are no reasonable |

leans we alebte ‘to nonemployee represéntatives of the

Union to reach respondent’s employ ees with its. organiz-

ing message other than by: having those representatives

“*eet them on pe penaeny par sg lots.

au Facts x Concerting Respondent’ § Alleged Unfair Labor |

_ Practices Relating to Its Rule Against Solicitation .

by Employees and Its Enforcement |

In speeches delivered to respondent ’s-employees on June

13-by George Reed, its Vice president, =" he announced re-

oe ‘ ‘< .

a ——$—__ ‘

"Reed gave the same speech twice at eae h of respondents

Mores. onee io full-time employees and onee to part?time em-

plovees. A copy of this Speec hois in evidence as an alttachnient

lian —_—* Exhibit 2.

230 2 = *

.spondeiit . ‘‘policy regarding solicitations on company-

premises."” This policy, which is still in effect, 1s, as

stated by Reed,. that ‘no solicitation may be made on |

company -premises for any purpose without prior manage-

ment [11] approval. Violatigus of the no solicitation

- - e ” - - - . . “ae - .

poliey will. result in disciplinary action, including . the

possibility of dismissal.’” It seems clear from the penalty.

provision of this ‘policy’? that its applicability is limited:

to employ: ees.*? oS

“During the latter part of June, Larry Stuck, an em- - -

ployee ‘in respondent’s West Store, notified a. supervisor

that he had received a union authorization card from

Marilyn Ragle, another employee.’ Within a short time

this matter was brouglit to Reed’s attention.

-Althoqugh — Reed _ interrogated “Stuck and Ragle ex-.

tensively concerning the place of the card’s delivery ‘to’

Stuck, he was unable to establish. that Ragle had given

it to Stuck in the store, as Stuck maintained during the *

interrogation. However, Reed became . convinced during

his questioning of Ragle that she had violated respond-

ent’s ‘*no- solicitation’ > rule in. other respects** and that

‘punishment was required. Accordingly, on July 8, Ragle

was laid off for-3 days. At the time of her layoff Ragle

was given a paper entitled “Noti¢e of Disciplinary Ac-

tion?® which stated:

This is to record that {Marilyn Ragle] has yiolated

the Cotnpany’s ‘‘no-solicitation’’ rule; and is hereb

| pany ! ; ar

1 As has alice idy bee h-set forth (see footnote 11) respondettt -

Seyauleate ‘d-another “notsolicitation™ rule aimed at nonemployee

. representatives of the Union. This’ rule will oe discusseil at

length in a later portion of this decision.

“2 Reed's conviction in this regard ‘was base mt he sont on

-Ragle’s’ admission -to him that she had “soliciated . . _ people’

(although not Stuck} on company time in the store.”

This document is in evidence as iGencral Counsel's Exhibit’

By te

So “ 7 ° -

_° given ‘a disciplinary layoff of three (3) days, and a

warning that future violation of the rule will result

in immediate discharge wifhout further notice..

LW hile questioning Ragle concerning the. authorization .

“card received by Stuck, Reed showed her -a document.

which had been circulated among dnd signed ‘by; em-

“ployes working. in réspondent’s East Store. This * paper,

which I shall. for convenience. refer to hereinafter as a

petition or as an anitiunion petition, is addressed té Reed,

is undated, bears. 97 signatures, and recites that the sub-

seribers **do not want the [Union] harassing [them]: any

~ more [and] do not Wish to Join this union. sl 4

In support of. his contention that pexpondent’s semploy ee

‘*no- solicitation” . rule Was discriminatorily. enforced, the

General, Counsel, in effect, réquests that I find that the

petition was cireulated after [12] June 13, the date on

which respondent’s rule was announced; that if’ was cir-

culated in the ‘store and there signed by employees in the

presence of a supervisor; ; and that no disciplinary action

"was taken against those employees who circulated or.

| signed the petition. All the findings sought by the Gen-

- eral Counsel concerning the petition, except with respect

to the time of its circulation and signing, are supported

by a preponderance of the evidence and are, therefore,

made. ees

Raymond Spe: irs, upon. whose testimony the foregoing

findings are based, was the only witness who gave evi-

"dence as to the actual cireulation and signing of the pe-

tition, His testimony was not pree ise as: to the date on.

which ‘these events occurred. ‘In this regard he stated

that “to the best of’ [his] / knowledge”? he was asked to

sign the petition by a fellow employee ‘tin the month of

June... about three to four w weeks’ after he had been

ee ae

** This petition is in evidence: as General Counsel's Exhibit 8

transferred from the West Sfore, where he began to work |

for respondent, ‘fo. the Kast Store.

Spears Was equally imprecise sehou the- date of ‘his

transfer to the East Store. He fixed the time, however,

as being in the *‘latter part of _ ay,’’? or about thé ‘mid.

dle [of May | or from there on.’’. -His.final words .on the |

subject. was that he started to’ work at ithe East. Store

some 3 or 4 weeks after he began to work at the West

arene |

Spears 1 Was as uncertain about his date of hie at the

West Store as he was about all the other dates he gave.

In this respect, Spears was unable to recall w hen, exactly;

he started to work at the West Store, but stated that it

was in ‘‘the latter 2 of April.’’

“The exact date on-which the petition was circulated or

on which it was signed by Spears cannot be determined

from the testimony he. gav e. The.periods during which

these things occurred, can, however, be calculated by

substituting actual dates for the indefinite time spanis as-

signed by Spears to. the events in question.

‘Reckoning on this basis, Spears. started to work at re-

' spondent’s West Store between. April 15 and ‘April. 30,

‘which interval: would comprise, as-he testified, ‘‘the latter

part of April’? He was transferred to the East Store, as

he stated, 3 to 4 weeks later, or between May 6 and May

28. Finally, he related that in June, about 3 or 4 weeks

‘after his transfer, or. between June 1 and June 25, he

signed. the ‘petition. .\s part of this. period, within which

he signed the petition, included’ a substantial span of

‘time before June 13, w hen ‘réspondent’s ‘*n0- solicitation”’

rule was made known to. its employees, T cannot find that.

the petition w as signed by Spears, or. circulated, after that

date. -

LRA AD Sah SSI al 80,

— 33

D. Cententions and Concluding Findings as to

Respondent’s Employee ‘‘No-Solicitation’’ Rule

_ The General Counsel contends ‘that respondent’s em-

ployee -‘‘no-solicitation’? rule 4s invalid beeause of its

: undye breadth and that by not penalizing the employees

at its East Store who circulated and [13] signed the’ pe-:

tition respondent discriminatorily enforced its rule.2> Re-

spondent contends that the rule in question is privileged

because of the retail nature of its business: that the evi-

_ dence does not establish that the rule was discriminatorily

enforced; and that Ragle’s. layoff -for noncompliance with

the tule doeg not’ fall within the Act’s proscription be-

: cause the rule, respondent claims, is valid. A’s will be

shown below, respondent’s contentions and that of the .

General Counsel concerning the discriminatory enforeé-

ment of the rule are not well taken. . . |

Unlike the situation obtaining in a factory, for ‘ex-

ample, where a rule forbidding solicitation during em- ©

‘Ployees’ off-duty ‘time is presumptively invalid,?* an op-

erator of a retail store is ‘‘privileged to promulgate a

rule. prohibiting all union solicitation within the selling

areas of the store during both working and nonworking

hours.’’ Montgomery Ward & Co., Inc., 145 NLRB 846,

848, modified in other respects, 339 F. 2d 889 (CLA. 6).

However a retail store rule’ prohibiting ‘‘solicitation in

any form .. - on store premises”? is ‘unduly broad in -

6 ” . . °

scope’? and therefore violative of Section 8(a)(1) of the

Act because it forbids ‘solicitation. during nonworking

‘time whether on or off the selling floor and in or out of

nantes - _ . . :

_* The General’ Courisel seems. to argue that by its discrim-

inatory. enforcement of the rule respondent engaged in am un-

fair labor practice separate and apart from its promulgation of

the rule. , a :

‘26 Stoddard-Quirk Manufacturing Co., 138 NLRB 615, -617..

Been

work areas.’’ Mock Road. Super Duper, Inc., 156 NLRB :

983, 984.77 7 Z : Sos

‘The validity of respondent’s rule here under considera-

tion turns, therefore, on whether it bans solicitation by.

employees off respondent? s selling floors during their non-

working time, In this regard, even if the lunchroom in

responilent’s -West* Store, in which only employees eat,

is. considered as a selling area heeause customers enter :

it from time to time. to buy ‘the cigarettes’ and candy bars

there offered for sale, [14] there are other portions of

respondent ’s premises, clearly not used for selling pur-

poses, which would, nevertheless, fall within the rules

purview. Included ‘among these are’ the lunchroom in

the East Store, employees’ lockerrooms, storage areas ‘lo-

eated off the sales floors, and the parking lots, in all of |

which the rule, on its\face, forbids ‘solicitation by em-

ployees regardless of w hether they are actually working. 7

”

Being thus unduly broad, eepondent’s employee ‘‘no-

solicitation’* rule goes beyond the privilege set forth in-

Montgomery Ward. It is, therefore, invalid.

Having found that respondent's employee - it an abtieibe

tion’? rule is inv -alid, it follows that the interrogation: of —

Stuck 4 and Ragle by Reed, respondent’s ¥ vice president, to

* The. Coane of apes for the Sixth ¢ ireuit ‘refused to en-

fore e the Board’s Order in Mock Road insofar: as it dealt with -

the. “‘no-solicitation™ rule because the court was of -the. opinion.

_ that there was. insufficient evidentiary support for the Board's -.:

- conclusion as to the nature of the rule. N. L. BR. B. v. Mock Road

Super Duper, Inc., 393 F.2d 432°. 435. The court. however. did

“not find fault with the principle emtnciated by the Board. In

-any event, as a Trial Examiner. it ‘is my - “duty to apply estab-

lished Board precedent’ which the Board or the Supreme Court

“has not- reversed.” Prudential Insurance Company of America,

119 NLRB 768, 773. reversed on other, gromits 361°U. S. 477.

As far as.my research has disclosed the precedent established

by the Board in Mock Road lias not been reversed by either the

Supreme Court or the Board.

A 3 -

determine whether the rule ‘had been complied with was —

. violative. of .Seetion 8(a) (1) of the Act. Pepsi-Cola Bot-

tlers of Miami, Inc., 155 NLRB 527, 530-531. It also fol-

‘lows that Ragle’s disciplitary layoff by respondent be-

cause ‘she allegedly failed to comply with the rule was:

violative. of Seetion “8(a) (3). Marlene Industries Cor-

poration, @ al, 166 NLRB No. 58. ° | ‘iF

As noted earlier, the General Counsel argues that re-

. spondent separately* violated: Section 8(a)(1) of the’ Act:

by its dis¢riminatory enforcement of the rule.- This argu- _

_ tent .is based’ upon the circulation and-signing of an anti- »

wien petition in respondent's East Store. . As set forth

‘above, the évidence does -not warrant a finding that the

‘cireulation’ and signing of. the petition: occurred after

June 13, the date on which resporident .armounceed- its

employee “no-solicitation” rule. .This being so,’ I must’ ’»

reject this. argument. . So 7 eee | eee

In ‘sum, therefore, I conclude that respondent engaged |

in unfair labor’ practices within the meaning of Section

S(a)(1} of the Act by. promulgating, maintaining, and

. enforcing‘an unduly broad rule forbidding solicitation by’

its employees, and by interrogating employees concern- |

“ing their compliance with’ this rule. <1 further. conclude |

‘that respondent engaged in unfair labor practices within

the meaning of: Section 8(a)(3) and (1) by laying Ragle |

off beeause of her claimed noncompliance with the rule.’

Finally; insofar as respondent's employee “no-solicita-

tion” rule is concerned, 1 conclude that the ‘General Coun-

sel has not sustained his burden of proving by a pre-

ponderance of the evidence ‘that’ respondent separately _

-Violatéd Seetion S(a)(1) of the Aet by enforcing ‘the

rule in a discriminatory manner. I will, therefore, reeom-

thend, tha? paragraph 2(d), (d)(i), and (d)(ii) and the.

relating portion of paragraph $ of the complaint be. dis-

missed, oe

agtsi xi) Fo pre per? SE IT

aS r : : : " d aa

: . 4

. . . . ° e 7 '

”

“

Tox

[15] Kk. Facts Concerning “Respondent’s Alleged Unfair.

. Labor Practices Relating to. Its Rule Against Solici- --

- tation by Nonemployees and Its Enforcement

‘About a month after respondent adopted its employee.

““io-solicitation” rule it announced the promulgation of a

“no- solicitation” rule applicable to nonemployee repre-

sentatives of the Union. This was done by letter dated

July 15,2 af distributed about 4 or d. days later, in which

respondent's employees were informed -by its: president

that instructions had been. issued to.“our Indianapblis &

‘management to keep all union organizers off our premises,

both inside and outside.” Like’ respondent’ s employ ee “no-

solicitation” rule, this rule, too, is still in force.

Although by its terms :1 ‘espondent’s rionemployee ‘n0-

solicitation” rule is effective inside respo1 dent’s stores, as

well as outside, ‘the evidente establishes\ that its main

thrust is to prevent’ nonemployee union 0 ‘ganizers from

soliciting on behalf of the Union on respondent’s ‘parking

‘tots. To this end, respondent’ s officials, since July 22; have

mG union represeests. to leave its. lots. or

X :

°. .

F. Contentions and Concluding Findings as

\... to Respondent’s Nonemployee

\ “No: Solicitation” Rule

Tee respondent’s. parking lots are generally

open to the ‘public,’ and that confrontation ‘between the

Union and respondent's employees, on the parking | lots is

the only reasonable method of solicitation ‘available "to the

Union,’ the General Counsel argues that respondent's non-

employ ee ““no-solicitation” rule §s invalid. “In support of

28. “A copy of this. letter is ‘in evidence as General - Counsel

Exhibit 3.

2 it will be réenie i in viii condection, that I hare al

ready found that there are no barriers, guards, or signs barriig

any one from. using respondent s parking lots.

* a »

lege &

me oa

this argument the General ( ‘ounsel relies principally on

: Amalgamated Food Employees Union Local’ 590 et al. v.. -

| - Logan Valley Plaza, Inc., et al.; 391 U. S..308, and ‘Solo

__ Cup Company, ete., 172 NLRB No. 110.

Taking isetie with the Generak Counsel’s premise that its +’

employees ‘are not reasonably within reach of the Union

except on the parking lots,. respondent contends that there

are avenu& of communication with its employees readily -

available to the: Union other. than by ‘meeting them. on

the parking: lots.*” Taking further issue with the General

Counsel, [16] respondent asserts that its. stores are not —

‘ocated in. shopping centers. and that,: therefore, their

#* parking. lots cannot be deemed fo. be generally open to the

public. ““Aecordingly, -respondent argues in support of the

- validity of its ban against nonemployee solicitation that

Logan. Valley and’ Solo Cup are inapposite and that the

general rule expressed. in’ N.-L. RB. B: vy. Babcock & Wil-

“cox Company, G51 U. S. 105, should be followed. : :

: In-detérmining the question of the lawfulness of re-.

spondent ’s” rule barring nonemployee ‘union organizers:

‘from its parking lots the-starting point for analysis is the

Supreme Court’s decision in Babcock & Wilcox where the —

legality of a similar proscription applicable to-a parking»

. lot adjoining ti manufacturing plant was .under considera-

tion. There the Court hoted*! that “organization rights’? ©

of employees, iacluding their right “to learn. the ad-—

vantages of self-organization *”’ front nonemployee, union.

; representatives,. stem from. “the same authority, the Na.

tional Government, that preserves [the] pr perty rights”’

. °° As-will be, recalled. I have found against respondent 6n

‘this point. However, as shall be shown.even had this issue bee

determined itv respondent's favor it would not. in the circum-:

‘Slalices of this case, require & conclusion. as respondent argues,

that its nonemployee “no-solicitation” rule: is valid.

SSCA tei

<f <a : « ;

4 . ~of, thei N. employers. ‘ Accommedationi between the two???

: rights; the Court w ent on ‘to say, ‘*must be obtained with/ |

oe | “as Tittle d struction Of ie as is consistent With the maiy-

Js tenahee 6 the- other.”” ie ae RN eh

Ph. lhe ole . a ah 5 a ” =

‘ os Striking! the balance ‘made necessary by this formula, a

s . te ‘the Court jeoneluded® 5 “that an employer may validly Yost

KG . his pro} ‘ity against - -nonemployee distribution. of. ‘union

a _Stiteratnits jf reiisonable. efforts by the ‘union - through

: oth - availble’ channels ‘ot communication will enable it .

tos, to reaeh the employees. with its message -and-H-the em-

. - ployer er’s Npticé or order docs not discriminate against the

“\ “-) union “by 3 owing other. distribution. ** But, the Court .

| went on 16 say, 84 iF the location of plant ‘and the living

pquait ers: of the niplovees place the employees beyond the

ree aeh of? reas onable Wnion.. ‘efforts to coinniunicate with

oe. + them, the employ er must quit the union.to ‘approach. his

ree employe ees on his propierty.’ » Finding ‘that. these .eondi-

wre ae + tions did ‘not obtain, the rulé involv ed in Prboock & Wil

ote 1 POE wvas not dis furbed by :the Court.

. The - ppeedl: probiem prese Sint in Babcock & Wilcox, ‘but:

bate ia different legal. and physical setting, again came ‘before

Pm tae the. Supremé ourt in ‘Amalgamated Food Employees

| x Union. Loval 590 et-al..v. Logan Valley: Plaza, Inc., ét al,

TE 308) Unlike Babcock & Wilcox, Logan Valley

Was’ not odiicerned with the. circumstances: under- which an ~

‘ émployer’s < rule’ excluding nonemptoyce union representa:

' -tives-from an £177 industrial playt parking lot could with

be | i propriety intrude upon rights guaranteed. by Section 7 of.

Pie aa fie Act. ‘The: issiies in ieee Walled.» were br oader. They

ert “351 t S112, et |

? “ veh te c ouitext: ther Tre appears to bene ‘dintines tien be ‘tTWweell dis-

a. h Seibution: Jf, uniok ‘literature and other fons of union “solic “ita:

; : Lio, - a elise er

; oh

Ea a 351 U. S “Us.

iy : : s a

a. = * oO . « .

: - -— -_

required.a balancing: of rights arising from private owner-

ship of property. against rights of ‘employees guaranteed

not only by statate ‘but also by the Constitatién. .

Specific: uly; in Logan Valley the- Court had to dceide ;

whether a inion had ‘been properly ‘enjoined from peace-

ful picketing on a parking lot within ‘the confines of

privately owned . shopping. center; ealled’ Logan. Valley

“Mall, which invited public sateen. A s¥ore located j

‘the shopping center: ‘Was the object of’.the picketing. ‘The

pickets Were not’ employed in-the store. They patrolled .

near the store in an area of the shopping’ center parking,

lot which was generally open ‘to: the public and to Ww vhich

the public had unrestricted ‘access, - ’

The sole’ ground urged for the affirmance of the j injune- .

tion Was’ that Os ret constituted. a- trespass on

private property; i.e, the: ‘privi ately owned shopping cen-

ter allel the parking NY on w hich it occurred. This argu-

nent Was not aecepted. To do’ SO, the Court commented,

would be to permit retail merehanis Whose businesses are,

located in en dtely. owned shopping ceRers, which it

‘likened®* to. ‘normal ‘municipal business district [s]*’ un-

-justifiahly to ‘immunize themselves from lawful picketing,

“by creating a cordon sanitaire ‘of: parking | Jets around |

theimstores,’ "36 nee fe

way

Accordingly, the. injunction was nullified. In doing ‘so

the Court in’ Logan. Valley, a® it had done in Babcock &

Wilcox, again struck a balance between rights gi ranted to

employees “by statute and the Constitution and rights

"lowing from the same sources ®enerally enjoyed by their

employers. Th this regard the Court stated :37

resceascsnpe,

SOLU, 319.

391 U.S. 325.

#391 aa

~«. Therefore, as) to. the. sufficiency’ of respondent's

ownership of the Logan Valley Mall premises as the

sole support of the injunetion issued against peti-

. tioners, we simply repeat What Was said in Marsh V.

‘ Alabama, 326 U. S.,-at 506, ‘Ownership does not al-

Ways mean absolute dominion. The more an owner,

for his advantage, opelis up. his property: for use by.

the public in general, the more do his rights become |

eireitmseribed by the statutory and constitutional

‘ri¢hts of, those \ ho use it.? | os aoe

[18] The final tase in this analysis is Solo Cup Ouciaas, |

etc., 172 NLRB No. 110. Here the Board concluded that

‘a rule excluding nonemployee union representatives from

the parking lots of a privately owned industrial park Was.

invalid. - _ | so

For a proper. understanding: of the Board's rationale

in Solo Cup, account. must be.taken of the nature of the —

premises ‘involved. Notwithstanding its private Ownership

the industrial park in question was open generally to the -

public. Noting the absence of fences, gates, guards, “0

signs prohibiting any one from entering the property, the

Board stated that ‘teven though the : ara: may not be *

-¢lassed ‘as a fully ee area, in view of thes ‘unlimited

accessibility to the area... it nas become through custom,

and use, a quasi public area.” Accordingly, the Board :

found, as did the Supreme CSurt - n “Logan Valley avith

respect to the privately owned iene center there under

consideration, that ‘the privately owned ‘industrial park

was, ‘‘elearly. analogous to’... the normal mimicipal busi-.

ness disfrict.”” @ °°". - 7- ee

In arriving at its conclusion in Solo Cup that the rule -

barring nonemployee union represe ntatives- from the in-

dustrial park Was an unfair labor praetice the Board first

applied. the Tongstan ng eriteria enunciated. | Babcock

& Wilcox. In this regard, the B vard found tit re Union

—41—

was, unable “by. rreasousbie attempts’ to reach [the em-

ployees eunecreny ‘through other av ailable channels of

communications,” ” * and that the rule was enforced in ‘a

discriminatory manner. For these re: asons the Board, in-

essence, held that, the _property rights of fhe employer in

Solo Cup had te yield to the’ rights. guaranteed to his

employees by Section 7 of: thé ‘Act.

Upon ‘reaehing this. result in’ Solo Cup, grounded on

Babcock & Wilcox, the Board could well have stopped,

but did not. It went further. and assessed the impact -6f

- Logan. Valley, which had been decided. by: the Suprenié

»)

Court some 2 months earlier, on the situation then before |

. Having done. this, the Board elunciated a new, inde-

padi and highly signifieant- consideration to he taken

ito account in balancing’ the respective rights of em-

ployer and employee. Relying on the principles set forth

in Logan Valley, . the Board held in Salo Cup, separate

and apart. frond its conclusioris based ‘on the authority. of

‘Babeock & Wilcox, that. where an employer's private

property has attained quasi- -publie status a- rute-dlenying

‘access. to. that sproperty to a noneniplovee uniow repre-

ventatiy e for the purpose of soliciting-on behalf of a wnion

“is violative of Section S( (a)(1) of the Aet. To this: end the

Board ‘stated: _

There : were. no- fences, gates, wuards: or signs barring

trespassers or distribution of literature on the’ prop-

‘erty, all of whieh are general indications foreclosing

the aecess of private property to the. public. Thus

even though the area may not be classed as a fully

“public”? area, in view of the inlimited accessibility

to the aréa established by ‘past practice it has become -

_ through custom and. use, a quasi- “public “area,

“tg In the recent Logan Valley Plaza case, the Supreme

>, Court “i an -analogous situation, found that a pri-

Vately ow ned shopping center could not exclude non-

. ARS ES

+ — 42 — :

employves who sought to, pe: wefully picket and dis-

tribute. literature from the premises. In, reaching

such conclusion the Court pointed out that the shop-.

ping center utilized. its premises or ‘property as the

‘functional equivalent’? of a.*tnormal municipal busi-

ness district’? and the ‘*pubhe had unrestricted ae.

acess to. the property.”? The Court also’ noted that the

econonti¢ development -of the U nited. States in the last -

20 years, particularly in the area of suburban growth

did the advent of shopping centers, would, if a con-’

-trary conelusion ‘be reached, allow businesses located

in’suburban shopping centers to immunize themselves

‘from all types ‘of union Campaigns - and prevent the

“free eXpression and communication that is the heart

-of the First Amendmeut.’” We find the industrial park

in the present case clearly analogous to ‘the -privately -

owned suburban shopping center or the normal muni: - ,

cipal business district’ and similatly conclude that

. Respondents cannot deny access to the premises to un-

> jon representatives, Whether it be for picketing or

handbilling. © |

_ Accordiigly, in determining Whether an employer's rule

- excluding. nouemployee union - representatives, from his

propertya is Valid. the question of ww hether his employees

are ‘otherwise within reasonable reach by the ‘union has

significance. This. factor, however, is not of paramount

importance in the tase of parking Jots, whether in shop- .

ping celiters or not.*> Of equal, if not of greater, | impor:

tance in view of constitutional implications, as Solo Cup .

teaches, is W hether the parking lot ‘in question, although

"privately owned, is quasi-public in. character. If that is,

the faet, the owyer of the lot may‘not prevent nonemployee

agents of a‘union from communicating with his employees

"y *3s As I have afready “noted: (see footnote Xs, above. the

Board does not .ditferentiate between shoppimg centers and SIL

gle sture parking ‘lots. et 2 Ls

43 — . _ . ae

on ihe lot even though they may be otherwise reasonably ~ ..

| available to receive the union’s message:

The parking lots here, like. the’ premises: in Solo Cup,

are accessible to the publie without limitation. Also like’

the property in Solo Cup, the parking lots are unfenced,

unguarded, and there are no » posted | signs barring anyone

from the lots. |. .

Accordingly, as the Board did in Solo Cup, I find ‘that

respondent ’s parking lots have a quasi- -publi¢ status. This

of the Ur nion from its parking lots is invalid, . a ~

being so, I further find on the- authority of: Solo Cup that

respondent’s rule excluding nonemployee representatives:

I conelude, therefore, that by promulgating, maintain-

Ing, and enforeing: ‘this invalid rule respondent engaged in.

unfair labor practices: within the meaning of Section 8(a)

(1) of o Act.

[20]-G.- Facts Concerning Responder’ S Alleged Violations

of Section 8(a) (1) of the Act Unrelated to the.

“‘No- Solicitation”’ Rules °

ie set forth in the introductory portion of this Decision

the complaint alleges that respondent -violated Seetion

-8(a) (1) of the Aet in several other _ respects. In this re-

gard it. is asserted, that respondent. made promises ° and

threats to induce employees te refrain from. supporting

the Union, | interrogated an employée respecting matters

relating to the Union. caused the arrest’ of one Anion.

representative, ind threatened to have another arrested.

Eaeh- allegation: will, be Separately. discussed. :

. . , 5 , . aed |

Se Tee IE - iy as .

The interrogation alle “ration to be considered here appears’ se gs

in the amendment.to the ‘complaint dand-does not relate to the

Mterrogation carried on by George Reed, respondent's viee pres- - ,

dent. in connection with the union authorizat: ton card received

. v

by Larry Stiek. one of respondent's ‘¢ niploye: ees, as to which

indi ners. have alre ady be ‘en made,

1. The promises anil thr eats

Tt will be reenlled that on June 3 George Riad: re-

spondent’s vice president, made apeethie to employees in

which he unnounced what I have called respondent’s em:

ployee **no-solicitation’’-rule. In the same speeches Reed

told his listeners that, their ‘salaries and benefits

already e xeced[ed] | ‘thi at which [was] currently being of.

fered to cmployees in comparable ret tail establishments i in

Indianapolis.”’ Reed also remarked, in this..vein,’ that it

was, respondent’s feeling that its employees “are entitled

to more benefits than the [U nion | has been successful. in.

obtaining from. comparable ret tail stores in ‘Tidianapolis.”

. Woven into Reed's speech at this Soint were references

to what he called the. Union's: ‘propaganda’? which, ap-

parently, - contained statements of ‘advantages ensuing

from union membership. These, Reed. said ‘‘ would have to

be negotiated over a bargaining table.’’ In this event. he

continued, ‘If [the Union] would be successful in leading

you down the garden path. then quite frankly all -bets are

off and we start from <erateh.” ,

. 2. The interrogation

During October Marilyn Ragle*? wore a button issued’

‘by*the Union, which, in effect, urged people to: register for

the purpose of ‘voting in the fortheoming presidential elee- .

tion. Seeing this button, Rene Cuvellier, one ‘of -respond-

ent’s supervisors, stated to.Ragle, as she . testified, “I

reckon you'd like to have the Union in here.’’? Upon [21]

receiving an affirmative response, Cuvellier said ‘‘they'll -

never make it’? because, unlike a union he belonged to: in

caer cans the U nion “did not “have a dental plant {plant}

here.’ ee os

!” Ragle’s layeff i July fore itewedly violating responde nt’

employee “no- solic eaves rule has. alread been found to have

been an unfair labor practice.

“

3 The arrest. t and threatened arrests — >

“Mark ce eee who resides. in Columbus, Ohio, is

employed as an organizer by the ‘Retail Clerks Interna-

tional Association, of which the Union is an affiliate. Kd-

jvard Stahl, who lives in the Indianapolis. area, ‘occupies a.

“similar position on the Wnioen’s staff. - In about mid-June

Kapefanakis cafwe to Indianapolis to assist the Union in’

its campaign to organize respondent’s s employees.

‘On July 22, after making calls at eraployee’ Ss homes,

Kapetanakis and Stahl met on the parking lot at respond-

ent’s West Store. -While walking toward the store they

were intercepted by Max Hagerman, respondent’s Indian-

apolis group manager, who told them not to enter the store -

and to leave the parking lot.#! Refusmg to comply: with

Hagerman’s s direction, Kapetanakis said that he was going

into: thé store as a customer. Upon being informed by

Hagerman that his husines ss was not wanted and that ‘‘if

ae} we ent into the store [Hagerman] had ‘orders to take

action,”? Kapet tanakis: repeated that’ he ‘*was going, in .as °

a customer and [Hagerman] eould do what he had to

do.’’#* ~Havi ing said this, Kapetanakis entered the store.. -

Although Kapet tanakis told Hagerman that his entry |

into the store would be as a customer and testified that he

“was going to look at some ot equipment, i Kapetanakis ;

41 ee its brief tical nt asserts that neither Kapetanakis nor oe

Stahl ever made known to any of respondent’ Ss management rep-.

resentatives they w ere agents of the Union. Responde nt further

states in its brief that Stahl, who had at an earlier time been

- employed by respondent; “was known only as a former employee —

discharged for. catse and Kapetanakis was unknown. . This, how-

ever, Is not borne out of the: evidence. Hagerman, himself, testi-

fied that he knew on July” 22 that “Ed Stahl was assoe iated with

the, Union” and that he ‘als6& knew that Kapetanakis * ‘Was asso-

ciated sina the. Union} caren Ed. Stahl” :

2 These findings are. based upon a synthesis of ae testimony

given by Hagerman and Kapetanakis.. The quotations. are taken’

from - Kapetanakis narration.

also testified that this was ‘‘not necessarily”’ all he in.

. tended to do, or all that he actually did, ‘in the store. In|

this regard, as Kapet tanakis further related, while in the

store he ‘looked to see- who the employees {were] facial-

wise, who was working. and who [he could] home call.”

[22] While Kapetanakis, the ‘Union’ - representative, was’

wandering around the store, an Indianapolis policeman’

who_ had‘ been sent for by Hagerman, respondent’s group

manager, arrived. Hagerman having x pointed’ Kapetanakis

out to the policeman, the policeman approached hin, asked

him to leave the store, escorted him to the door, and placed

him in the rear seat of a marked - police car which was

parked near the store’s front door. a ak

After a short wait, during which the policeman who had

walked out of the: store with Kapetanakis conferred with:

another of..superior rank; Kapetanakis | was told that he

was under arrest ald ‘a police,van was called. Upon its ;

arrival Kapet tanakis was led from the car in which he-had-

been sitting, placed in ‘the van, which.like the other police

vehicle was clearly marked for what it was, and driven to °

“a police: Station. All of this, from. Kapetanakis’ first con-

.frontation with the policeman in _the store until he was

‘taken away in the police. van, occurred in view of several

employees of: respondent.

In addition to Kapetanakis’ arrest, ‘Stahl, who like Kap-

etanakis is a representative of .the. Union, was. twice

threatened | with arrest .by officials of respondent ‘in re- :

.. spondent?’ s West Store. The first ineident of this nature

occurred on November 5 ), sonie 2 weeks after Stahl, him-

self, signed the second” charge in this ease*® which alleged

Kapetanakis’ arrest as having been caused by respondent

in violation of Section 8 (a) (1) of the Act. rs

On the day of the first ‘threat Stahl was in respondent’s

' store ‘for the purpée; he testilied, of buying- paint. He was

*—7

43° The charge in question was docketed as 25-CA-3261.

* Aah e ! : weet . ay

, 47 —.

told, however, by Cuvellier, one of respondent’s super-

visors, that respondent “didn’t want [his] business and to

Teave the store.” Hagerman, respondent’s ‘group manager, :

joined Stahl and Cuvellier at this point. and said to Stahl, 7

as he further related, “Ed, I want you to. leave the store —

or I'll eall the police.” Apparently, this conversation- did |

not take place within view or hearing of any employee. |

Having been ordered out of the store, Stahl, followed by’

' Hagerman, walked from the paint department toward the

checkout lanes located in front-of the store, one.of which ;

was manned by Ragle, an employee. As they approached -

Ragle’s lgne’Sfahl asked Hagerman to’repeat what he had

_ said in the paint department. Hagerman did so.using the _ . —

same words he had used earlier. This time, however, they —

were heard by Ragle. In this connection, Stahl candidly

agreed that he_asked. Hagerman to. répeat himself in

Ragle’s presence’ “so she would hear what [Hagerman] .

had to say.” After this repetition Stahl left the store.

. Stahl returned on November 13: While in the sporting

goods department he encountered ‘two supervisors, Phil -’

Bowers and Cuvellier. Stahl. told both, as. he recounted, .

. that he was in the: store to “buy .. : [23] lighter fluid as

a customer.”™ They: replied ‘that respondent “didn’t want

* his business: [and] to leave the store.” Cuvellier added

_ that unless Stahl did so thé police would ‘be called. Stahl,’

theretipon, left the.store. As ‘with Stahl’s. paint department |

conversation with Cuvellier- and Hagerinan, respondent’s »

Indianapolis group manager, on November 5, Stahl’s en-

- counter with Bowers and Cuveéllier on November 13 does

uot appear to have been seen or heard by any employee, -

H. Contentions and Concluding Findings. Concerning Re-

_ spondent’s Alleged "Violations of Section 8(a)(1) of

the Act Unrelated to the “No-Solicitation” Rules.

_ Respondent contends, on brief, that the portion of. the

speech df its: vice president, Reed, including the “start.

from seratch” phrase, was“not given in a.coereive atmos-

phere, nor Was there, on respondent's part, a “background

,of anti-uition: sentiment: of unfair labor practices,” and.

that, therefore, “there is no basis for penalizing respond-

ent on this issue.” “The General Counsel argues that it is

clear from other remarks'j in Reed’s speech, that his “start

from ‘se ratch” language is a promise that existing bene.

fits would be continued ged increased if respondeWts em-

ployees refrained from supporting the Union and also:a

threat that they would be discontinned or ‘diminished if

the Uyiow was supported. Thus, ‘the General ( ounsel. con-

tends, respondent has violated the Agt.

"The: expression ®tart ‘from serateh,” *-or words of simi-° -

lar import, when applied by employers to bargaining or to

benefits which employees enjoy, or which they may expect ;

to obtain threugh membership in a labor organization -is

now new in labor relations: matters. “In the: context of

‘ss Other substantial unfair labor practices committed by

[an eniployer, the words in question] imply a threat of.

reprisal should... employees select [a] union; [they are}

thus coercive.” Aerovox Corporation, etc.,, 172 N LRB No.

oi. On the other. hand, where. “an examination of [the

employer's contemporaneous behavior” shows an absence

of accompanying oercive conduct: “noe unlaw ful meaning

should be attached to the words-in-isste.’ ’ Wagner In.

dustrial Products Company, Inc., 170 NL ‘BB No.. 157.

Accordingl?, in “determining: whether --the “start ‘te

_sefateh” phrase used by Reed, respondent's vice prest-

dent, was violative of Section S(a) (1) of the “Aet reference

/ must be had to respondents other coriduet. Lf-it includes

substantial unfair labor practices, then the: eXpression in

question must be. deemed to have taken on an aura: of

covrelon: A

In this regard, it will. be remembered that in the: very

' speech in which Reed uttered the “start. from - scratch”

PN PURE av peas lag

us — 49. cae

- ali he also announced respoident’s e eeu Royee “ho-

_solicitation’? rule, which I have: found to have been viola-

tive of the Act.-A short. time later respondent interrogated -

\ two emplo "ees concerning an. alleged: violation of the rule"

‘and laid ff one, Ragle, because ot her claimed failure ’to *-

ehmuply with [24] the rule. This, conduct, too, I’ have.

found to have been violative of the Act. Finally, I have -

4. found, that respondent” Ss OG ORE a: rule relating to

nonemploy ee représentatives of the Union: was also vio-

lative of. the Act. In the ‘‘eontext of [these] other sub-

stantial unfair labor ee committed by”’. respond-

ent, I find that Reed’s ‘start from scratch’’: language

constituted, as the General | Counsél argues, both,a threat _

of reprisal and a promise of benefit designed to induce « -

employees to refrain from: supporting the Union. As such,

the ‘expression under consideration was coercive within

| the meaning of Section: 8(a) (1) of the -Act.: :

The second item. in this category of unfair labor: prac-

* tiees allegedly comniitted by respondent is the statement

made to Ragle, an employee of respondent, by. Cuvellier,

a supervisor, that -he thought that Ragle would “‘like to

have the Union in here.’”? The General Counsel argues” |

that because Cuvellier’s statement had the effect. of ‘‘caus-_

‘ing [Ragle] to* deelare ‘[her] position’? - concerning’ the -

. Union’ ‘‘Respondenit thereby ° violated Section 8(a) (1) of.

the Act.’? Ragle was, indeed, caused by Cuvellier’s state-

- ment to declare her position concerning: the Union. I am

not. persuaded, however, that by causing her to. do SO re-

a violated Section 8(a) (1). ,

. eas from re saben other onfair labor. prattices, the.

seein of an unfair labor practice invol¥ing a dis¢rimina-

| tory de ‘privation of employment, as in Ragle’s case, cannot, be

- gainsaid. It * ‘goes to the very heart of the Act.” N..L. RB. B: v.

Entwistle Ma acturing Company, 120-F. 2d 532, 536 (C. A

4). This is nok to say that’T consider responde it’s other unfair -

labor. practices. t to be unsubstantial. Se roe

| Tn Southe: a Cotton Oil Grade Mil, in, 144 NLRB 959,

as 965, relied on by th >General ‘Counsel,. it was stated that |”

a supervisor’s “remark ‘hich ] cause(d) an [employee] *

‘to declare his position . . . would not-be coercive standing prec |

+: alone.’ ‘What moved, the Board to. find the remark there ¢

-. undér consideration, to be” coercive was another statement. =i ;

+ in. the. conversation. :between the supervisor and the.em-- Bene: &

. ployee in which the former ‘‘indicat[ed] that the job. Cae

prospects of union adherents: were not bright.” ee

No. such facts. appear here. The iabenes of the conver-.

_ >. Sation in question consisted of. an_innecuois.- ‘commenit by

__ Cuvellier. that the Union would:‘‘never make it”? not be- ©

cause of. ‘something respondent might do, but because the. |

| Union lacked a “‘dental nore (plan 1 - oS :

“The last items for considération are the atrest. and ws

threatened arrest, respectively, of Kapetanakis. and. Stahl, }

organizers for the Union. Claiming that ‘fespondent knew

that Kapetanakis had enfered its store as a customer,. the ©

2 General Counsel argues in his brief. that: respondent’ vio-

ae ue Section 8(a)(1) of the Act. when it caused his [25] -

‘arrest ‘fin front of its,. employees. ’ The General Counsel . = oS d

makes a similar argument with respect to. ew Ss 4

‘threats: to cause Stahl’s arrest. ai | i

"In Heck’s, Inc., 156 NLRB. 760, 761, modified. in ‘other coe

“respects ° 386 F. 2d 317 (C: A. 4), cited by. the General — a

.. Counsel. to support his position, the Board found a viola-. -

_ tion of ‘Section 8(a)(1) by an operator of a retail store oe

: wh ‘in front of its. employees, ordered. a union. ‘Tepre- - a &

: tive. to leave [its]. ‘store ‘although he had entered the Soe .

premises to do business a8.a customer,’’ and, as herein |

. the case of Kapetanakis,, called upon the police to enforce

Its. order. -Thé touchstone for the Board’s decision in ;

| -Heck’s is the finding that the union representative there

‘centered the premises to do business as- a customer. ” ‘Such

ae ant insofar as ee is coneprned, is not war- /

ere Ses Ls

> ee

. = ‘—_

“ Nt om ais ; .

ih - : ae a * t

a _* ‘ ey © .

“2 “going {into the store] as a custome,” this, in miy judg-

= tour of the store. I, therefore, find’ that

not as a customer.

man’s objections to his entering: the store.

' "Two fasts fortify my opinion in this regard. ‘The first is =

= Bet that Kapetanakis ‘came to Indianapolis from his home in a

_ Columbus;. Ohio, to assist the Union in organizing respond-

ent’s. employees: “The. second is that immediately before ©

arriving at respondents West Store on the day in question -

. exalt form, i. @, what Kapetanakis told Hagerman, nay

substance; i. e., what Kapetanakis actualy did during his

in ‘respondent’s: store as an organizer for the Uniot ‘and ~

unless he complied would not’ hi

anited here. Although Kapetanakis told Hagerman, re- :

' Spondent’s Ind?anapolis group manager, that he, was

}

"ment, was nothing more than a ruse to overcome Hager-

been violative of Sec.

* aecept at face. value Kapetanakis’ statement to Hagermar rae

that he intended -to euter

oa ‘ies 8(a) (1) of thé ‘Aet. ‘Pri¢ed- Less. Discount Foods, Inc.,

| ete.,. 162 NLEB 872; ‘Heck’s Inc, 156 NLRB 760, 761. a8

- In the hesksbesnd of the first ineident. involving Stahl ioe

was the Kapetanakis affair, which; from the time.he: was

first approached by the. policeman in the-store until ‘his

removal im the police. van, was witnessed by employees... ‘

This gave: rise to the charge, signed by Stahl, himself, ~

alleging Kapetanakis’ arrest as an unfair labor’ practice!

_ [26] Some 2 weeks after he signed the eharge Stahl went

into respondent’s West. Store, ostensibly to buy . paint. |

Upon seeing Stahl, Hagerman, respondent” 's Indianapolis ©

_ group ‘manager, ordered him to leave the: store and threat-.

ened to. call the police if he did not do so. No employees :

* being present in the paint department at the time, Stahl

* man uvered: Hagerman. to a point ‘in the store at which

a _an_enployee-was or duty. In her presence and, as-he ad- .

- mitted, 50 that she. would hear’? Stahl had Hagerman oe

| repéat what he. had ea earlier said in the paint department.

Re customer, it seems to me, ‘would pat ave acted in this—

_ Manner. It is clear to meythat the purpose of Stahl’s ploy :

‘ was to obtain an employee witness to Hagerman’ s threat

to have: police ejeét him’ fram. the store if he did not t obey :

the order to leave. : :

. Whether: Stahl sought a this re create an independent |

| incident similar to the one which concerned Kapetanakis,

or to lend ‘support to_the charge he signed respecting that

matter, or whether he had still another object in mind is -agagetoraes ate

_ no moment. What is important is that the.entire complex:

of events convinces: me that Stahl, like Kapetanakis, did

a - not enter respondent’s store at the. time in question as a

customer; but as a representative of the Union.

‘Having found that neither Kapetanakis nor ‘Stahl “had

__ entered Respondent’s premises to-do business as a cus-_

tomer” as the or alleges, : further find that the —

eae

manner in which their removal _was "accomplished Was

A not violative of Section 8(a)(1) of the Act. See, ins this

NER No. “42, aud Meier & Frank Company, Inc, 89

-- difectly related to

ony

: NLRB 1016, 1018. tere ys

In sum, respecting the allegations of ‘the complaint ‘Rot x

* within the meaning of Section 8(a)(1) of the’ Act by the :

‘speech -given by Reed, its vice president, ‘insofar as it con-..

. tained threats of reprisal and promises of benefit to’ induce

employees to refrain from becoming: members. of, or’ sup-

aS | I further conclude that respondent - did not engage in -

unfair. labor practices - within the ‘meaning of Section

_ 8(ayX1) by its interrogation of Ragle, one of its employees,

[27] eo vz ‘The Remedy ne = Tiare -

Having Hh that respondent engaged i in ately Lele é 4

te practices within the meaning of Section 8(a) (1). and ~~ |

- _ ‘medial provisions: relating’ to respondent’s “*no-solicita-

the Act, my Recommended Order will direct respondent |

> and desist therefrom and to take. ‘eh. affirma-

ee thi connection, rane as ‘Sepicmadielst: has already er

instated Ragle respondent will be requiréd only: to: make

her whole: for joss of earnings she may hage’ suffered by Pe

" ‘the discrimination practiced against her. | “Any ‘back ‘pay ~

‘found to be due shall include interest in the aniount and

: he an ‘acheive to its eleim that its. employee “-

solicitation’’ rule was privileged respondent, claiming

the rule was not improperly enforced, afgiés, on b i, a ee

' that for. this reason ‘‘no remedy is indicated.’’ The Saee. hh

answer. to this argument - is found in Great -Attantic : om Bro

There, notwithstanding the faet that an died Haas. ;

licitation’’ rule had not non enforced ‘at all, a remedial an

onder. was: entered. <a

‘Accordingly, my. Recommended Order will eontaii Te.

tion’? rules. It will also contain, in view of the nature

and extent of. respondent’s unfair_labor Penctions, broad

= ‘cease-and desist provisions.

See Wee Woks ot Acca Octags dh tec

| upon Tl ee

ee - -Conetusions' of Law 2 oO

a. ‘Riepdaidint is ‘an employer | within ‘a meaning af

Section 2(2) of the Act and: is engaged in commerce —

2 within the meaning of Section (6) ae tee Aut e 3

—_—

;. ne : > . - . e754 F

. b Pp € #. Ne - ‘ om of

- z 5 a — : : > ‘

te . - ; ; 2 . ps .

° r 2 ;

. The Union is.alabor organization within the meaning.

'. Of Seetion 2(5) of the Act. . Na eg: Sesto ae

8. By: promulgating, ‘maintaining, and enforcing a Tule

engaged, and is engaging, in unfair labor practices within

: the meaning of Section 8(a) (1) of the Act.

_4-By interrogating’ try Stuck and Marilyn Wagle, em-

the. fule described in Conclusion of Law 3, above, respond-

: ent has engaged, and is engaging, in unfair labor prac-

_ Spondent, on the ‘ground that She failed to comply with :

___ the rule described in ‘Conclusion of Law 3, above, thereby

_ discouraging membership _in—the~ Union, respondent has’ ~

eng , amd is engaging, in ‘unfair labor: practices within

the meaning of Section 8(a)(3) and. (1) of the Act.

Section 8(a)(1) of the Act.

[28} 5. By laying off Marilyn. Ragle, an employee of re

? .

_ & By promising employees that the benefits they. =.

-.. Joyed would be increased to induce them to refrain from

eer becoming members of, -or assisting, the Union respondent

has engaged, and is engaging: in -unfair labo, practices

within the meaning of Section 8(a)(1) of. the Act.

> : .

os eee

‘ : “ $

‘ -- -.

> p

. —— 56 —

oe .

ee gaged, sna ts dveiging: ts ater labor ipekotions within ok

oe: the meaning of Section $(a) (1) of the ‘Act. age reek

me Respondent: did not engage in unfair labor practives

_ + Within the. meaning of Section 8(a)(1) of the Act: by dis- ‘.

ae: ~~ benuzaae he rule es in | Conclusion vif in

e. Respondent’ i leteceosation of htahitys 3 Rage, one ‘of iS

its. employees,. uring October 1968 was not sours and 2 —

i respondent. di not thereby engage in an unfair 1

; tive within’ the meaning-of Section’ 8(a) 1) of the Act.

a: Respondent at did not engage i in unfair labor practices se

one within the fie meaning of Section 8{a)(1) of the A by or-

~~ dering’ Mark Kapetanakis, a representative of the Union,” ©

*- ° . to-leave its store, or by causing him to be- "arrested and--—

_ femoved from: its in a police van,

12. Resp ident did not: engage in unfair labor practices a

- within the meaning of Section 8(a)(1) ‘of the. Act by or- _-

_.. dering Edward Stahl, a ‘representative of the Union, to —

.- “Jeave its. store, or by. ee to’ecall the police to en-

es _ force. its orders. 2: Sf ;

pet The unfair labor practiges engaged in by. nee é

as. set forth in Conclusions of Law 3, 4,.5, 6, 7, and 8

above, affect commerce within. the momning of daccmere 2.

. (6) and. (7) of the Act.

< Upon’ the foregoing Sekings a of fact, custisicions, of law,

< cen the entice tnend ath eae, I here reby issue the |

: ne eee if Oe

[29] | - RECOMMENDED ORDER:

bel Central Hardware Company, its officers, eci succes-

"sors, , and assigns, shall: bates le Nien rc tee Re eat ae

lhe Cense and desist from: ee: =. ee

sae (a) Promulgating, maintaining, ‘sulin intpirrogating |

os any. Empires concerning, bal in Be is discharging, “+

eo S a He . Ae

ae ei elle OS ee

otherwise’ disciplining mg any employee for failuré te comply ~~:

with, ‘any rule Prohibiting any employee from soliciting =

Local Ne, SmPleyse on behalf of Retail Clerks Unies

‘Local No. 725,. Retaj Clerks International Associat; ;

AFL-CIO, or apy éther labor organigation, in nonselling

OF nonwerk 1€ areas’ of its retail- stores during the non- a

au 3

tatives of . Retail Clerks. eae

r mutual aid of

of the National ,

a teed in Section 7 of the ae

Labor Relations Act, as amended, or to refrain from any ae

amet

Sal te tg) oes Pei as fs ei ‘Sewer

':_ or all sach, activities ‘except peers as ttihiee righte could’ :

be affected by any eontract with a labor- “organization, if —

' . validly made in accordance with said Act, whereby mem-

bership therein is a condition of employment . after the

2 . 30th day following the: date of such contract or- ‘the. begin. Z 2

ning of such employment, whichever i is later. .

e 2 Take thie’ following affirniative ‘action which,” it is. ;

found, will effectuate the policies . of the National. Labor

Relations Act, as amended: — eA Ce “

» (a) Bevoke and withdraw its rule, MEY in malate ihe

. /. to employees delivered | on or about .June 18, 1968, by .

George Reed, its vice: president, or any prior or subsequent

Yule, insofar as any said rule prohibits [30] any employee

from soliciting any other.employee on behalf of Retail soe

' Clerks Union. Local No. 725, Retail: Clerks International ix

_. Association, AFL-CIO, or any other labor organization, in |”

. nonselling or ‘nortiworking. areas of its ona stores oe ee

the nonworking time of both.

(b) ‘Bevoke and withdraw its rule, iismousnedl £ in ioltate, : oe

‘dated July. 15, 1968, addressed, and later. delivered, to.

- employees, or any prior or: subsequent rule prohibiting non- -

oe employee representatives of Retail Clerks Union Local No:.

725, Retail Clerks. International Association, AFL-CIO, or

: any other labor organization, from appearing on the park-.

ing lots adjacent to its. retail stores and there soliciting ee

_ employees on behalf .of Retail Clerks Union Local No. 725, ©

Retail Clerks International - Sear | zee berks a ca or. cm,

other labor organization.

‘ (c¢) Make Marilyn-Ragle, witha in ‘the manner set é torth, :

in the“section of this Decision entitled ‘‘The Remedy,”

for atiy loss of earnings: shé may have suffered by reason

of the diserimination practiced against her..

(d) Preserve and, “upon ‘request, make available to, ‘the! :

National Labor: Relations: Board or its agents, for exami-

nation ang copying, nw payroll. reco eet se

ieee Bogrd, the words “a Decision. and Order” shall ‘be sybsti-

'”* is enforeed y a decree of a United States Court of Appeals, the

_ attached notice marked “ Appendix.’5 Copies of said no- has

”.

- (1): Notify said Regional Direetor, in writing, within 20

| days from the receipt Of this Decision, what steps respond.

ent has taken’ to. comply herewith.¢. ete et

~ [81]. It Is Farther Ordered that the pleading entitled

' “Amendment to Consolidated Complaint” and the com-

__. ‘plaint be, and they hereby are, dismissed insofar as'they —

_ allege unfair labor practices not ‘specifically found herein. -

a as we sigh. as nas oe 5% = / Bie sits :

‘Dated at Washington, Dg. 2 ;

tuted for the words “the Recommended Order of a Trial Exam-

iner” in the notice, In the further event that the Board’s Order

sing ‘an Order” shall be fubstituted for the words “a Decision

46 In the event that: this Recommended Ohder is adopted by --

the Board, this provision shall be modified to redd: “Notify said

Regional Director, in writing, within 10:days from the date of

this Order, what steps ‘respondent has taken to eomply here... . : i

APPENDIX: As : ; sit

Seats Ss o\ Notice to ‘An Simployees= See

<a rsuant to ‘the Recommended Order ofa Trial Exam

_ iner of the National Labor Relations Board and. inxorder- _

_ to effectuate the policies of the:N ational Labor Sees

pr ae am, as ieee, we. ‘hereby. notify our employees that:

: After. ‘a trial in which both sides had an opportunity |

-'> to present their evidence, it has been adjudged that we a :

af Violated the. law by ‘committing anfair labor practices,

ae _ Accordingly, we post this potice and we will —_ the

Promises-that we make in.this notice. ca a

‘ WE WILL NOF make, or enforce, sip vals ‘pro- *

oe hibiting any employee from soliciting any other em- -

+ -,: ployee to become a member of, -or to support, Retail _

| - Clerks: Union Local No. 725, or any other union, in

2 nonselling’ or. nonworking parts of our, stores during

__-nonworking time. As. sucha rule was. announced: in —

"°° speeches. given: by George Reed, our vice president, —

= on June 33, 1968, WE WILE‘cancel it. ae

“WE | WILL. NOT question any employee me.”

whether such a rule has been obeyed and WE WILL

- NOT fire, lay off, suspend, or in any other way punish

any gmployee for not obeying such arule.

WE WILL NOT make, or enforce atiy rule prohibit-

— organizers or representatives of ‘Retail Clerks.

Union Logal No. 725, or any other union, from coming -

- . on our parking lots to solicit; or ‘to i arrange to solicit,

+“ any employee to become.a member of, or. to support,

‘| Retail Clerks Union_Local No. 25, or any other.

-. Enion, As sich a.rale wae announced in letters to

. . °

° \

8 ee iy grote cco tie canes OF co ee — a _ = a

" awe suspended

WE WILL

. Strain, or coerce you in the exercise of any rights _

. _Suaranteed to

. Act. In this

her. s

Ni OT in any manner

interfere with, re-

you by the National Labor Relations

7 's connection, WE WILI, Tespect your

Tights to self-organization, to ony Join, or assist any.

ugh any union ‘or.

62 -

Al our employees are free .to become or remain, or “Hot

ts become or remain, members of’ Retail. Geeks Union '

Local No. 725, or any other union.

CENTRAL HARDWARE COMPANY

scuamnieid

{ Representative) . ( Title)

: "This hotics must remain posted for 60 consecutite days

. from. the date of posting and: must not be altered, de-

op faced, or covered by any other material.

If. employees have any question concerning this notice

_ or compliance with its provisions, they may communicate -

directly with the ‘Board’s Regional Office, 614 ISTA Cen-

ter, 150 West Market Street, Indianapolis, Andiana 46204,

Telephone. 317 7-63-8921. oe :

RESPONDENT'S BILL OF EXCEPTIONS

_ AND ASSIGNMENTS OF ERROR

_ ited July 22, 1969) a ;

i Mapiindieat ore excepts to. and assigns error in find

ings, conclusions, rulings and ‘omissions of Trial Exam-

iner Lieberman in his Decision herein and during the con-.

duct of the ‘hearing herein. Respondent submits to. the

Board that the findings, conclusions; rulings and omissions

that are hereinafter detailed, adversely affect erat

~ substantial rights and are Prejudicial.

_ Respondent herein presents: its exceptions. thisiseatinit’s

grounds for those exceptions with supporting authorities .

- * will be set forth in Respondent’s brief which will be filed,

_ by leave of the Board before J uly 30, 1969.:

aA NS Ragu svete! acy oni

| a

So Respondent excepts ‘as follows:

1. To the Trial ‘Examiner's finding (TXD) p. 4, line 24

and p. 6, line 10) that Respondent’s stores located in

2. To the Trial: Examiner’s finding 4nd conclusion _

(TXD p. 4, lines 39- > P. 5, lines 32-37) that Respondent |

has adopted, promulgated or otherwise maintained a ‘Sno. -

a Solicitation’ , rule which states:.

‘Management will ‘keep all union organizers off com-

spondent’s stores are in Shopping centers or in single store

4. To the Trial Examiner’s finding (TXD P. 7, lines

| 6. To the Trial Examiner's. findinig (TXD p. 8 lines.

33-34) that Respondent’s “‘no-solicitation?”? rules prevented

7. To the Trial Examiner's finding (TXD p. 9, lines

26-30) that. the union’s. Passing out literature at. the en-

_ 8. To the Trial Examiner’s finding and conclusion as ~

than ve hing. those. repreeentatives meet them on A a

e spondent’s parking lots. | ie

9. To the Trial Examiner’ s. iiaitialen (TXD. p. 13, lines

- “11-22 and 38-50) that Montgomery Ward & Co., Inc. and

Mack Road Super Duper, Inc. , correctly state the law | con- -

z cerning the latitude of no-solicitation rules i in retail stores. -.

10..To- the Trial Examiner’s. conclusion | (xD. 1B,

_. limes 24-26) that the validity of Respondent’s employee

no-solicitation rule turns on whether it bans solicitation

‘off the selling floor during non-working times.. es

‘11. To the Trial Examiner’ s: finding (TXD p. ‘14, lines

9- -11) that Set 8 employee moemneitetion rale i is in-

valid. ;

12. To the Trial Reanine’ - ietiag? (TXD p. 14, fines

13-20) that Respondent’s alleged interrogation of Stack

and Ragle and. Ragle’s. mehoornentt layoff were violative of

= the Act. =, 7 arene

13. To the Trial Bxupinee’ Ss: ‘conolusion, (TXD ye |

lines 15-20) that the main thrust of General Counsel’s Ex- =<

hibit 3 was to prevent non-employee. union organizers from =

3 soliciting on Respondent’s parking lots. 2

14. To the Trial Examiner’s conclusion (TXD p. 19, Sinae

_ 34-35) that. Respondent’s preniises are accessible’ ‘to the

public without limitation. es

15. To. the Trial Examiner’s fiiding (TxD p. 19, lines”

} 39-42) that Respondent’s: parking lots have a quasi-public —

status. and that a rule excluding“ non-employees is invalid:

“16. To the Trial Examiner’s conclusion (TXD p. 19, lines

2 44-46) that Respondent engaged in unfair labor practices

_ «by promulgating, maintaining and. “oe a non-employee

no-solicitation rule. :

17. To the Trial Exansiner’ s finding (TxD p. 24, ies 3

; aoe that Reed’ s Speech. was coereed under the Act.

res

‘PP! 27 and 28) Nos. 3, 4, 5, 6, 7; 8, 9-and 13.

WUE RENAN hit ftol, Mil esi vied

- ¢

ea | after, the Respondent, filed. exceptions tothe Trial Exam-

Bis, cen ee

18. To the Trial Examiner’s conclusion (TXD p. 26, lines. |

- 30-36) that Respondent engaged ‘in unfair: labor ‘practices cee

. by the speech given by Reed.” . ne 2d Oe

19. To the Trial Examiner’s conclusions of law (TXD

20. To the Trial Examiners recommendation (TXD p."

"a lines 13 and 14) that Respondent cease and desist from

Maintaining a non-solicitation rule in storage areas of its :

sesso ee ee ec ee ve one ee eee

_’. Wherefore, the Board is requested to reverse the Ex- —

~* aminer’s ‘findings, conclusions, rulings and Omissions and

recommendations that have heretofore been discussed.

Under the provisions of Section 102.46 (i) of thé Rules,

: Respondent respectfully. requests permission to present ora]

argument on the Exceptions herein set forth.

3 Respectfully submitted“ cor oe :

Attortley for Respondent <

' 48 set forth in the attached Trial Examiner's Decision: He.

, further found that. Respondent had not engaged in certain

“other unfair: labor practices alleged in. the complaint and. _

recommended that such allegations be: dismissed. There-

‘ 5 ae

Oi AR ae eo ae ; oo D \ “y r TT : .

; aa ee, ; . ;

. ; ° . ’ \ ,

ety ao \ <= 66

e >e

Pe es

iner’s Decision: anda supporting brief, and the General _

' Counsel filed limited exeeptions with a brief in support of.

- the Trial Examiner’s Decision. i Oe ee

Pursuant to the provisions of Section 3(b) of the Na-

tional ‘Labor. Relations” Act, a8 amended, the National

Labor Relations Board has delegated its powers in connec-

_ tion with this case to a three-member penel.: =: |

_ The Board has reviewed the rulings of the Trial Ex-

aminer made at the heaging and finds that ho 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’ __

_ €ase,' and hereby adopts the findings, ‘conclusions, and rec-

- ommendations of the Trial. Examiner with the following.

__1. The Trial Examiner found, and we agree, that Re-

"+ spondent violated Section 8(a)(1) of the Act by maintain-

ing an unlawfully broad employee “no-solicitation” rule. .

__ The Trial Examiner also found, however, that Respondent

did not violate Section 8(a)(1) of the Act by disparate and

discriminatory eriforcement of this rulé. General Counsel

: excepted to: this finding. ‘For the reasons’ set: forth below,

we find merit in General Counsel, exception. 2 te

_. ‘George Reed, delivered a speech to the employees and ‘an- |

/ nounged a long-standing policy regarding solicitations on

’/ eompay premises. The policy as stated was that ‘‘no

e. solicitation may be made on company premises for any

fe Examiner found, as Stated above, that this rule was in-

_ Valid and in-violation of Section 8(a)(1) of the Act.

: : oe renee :

ok As the record herein, including the exceptions and briefs, ~

adequately presents the positions of the parties, Respondent’s

. .request for oral argument is hereby - denied. - =.

©. > *

ting it Gitied WAIN asda Wk Dede dibs Voth are aati

‘among the employees

Sometime in J une,

uly 8 by layin

. ee an

acon . 2

: :

: goods : departnient: Shortly, thereafter, ‘an Indianapolis i

‘policeman who had been sent. for. by “Hagerman, asked .

Kapetanakis to leave the store, and in full view of

several employees, escorted him out and placed -him in..a\

police vehicle. This action was taken by Respondent in

furtherance of a rule it had ‘adopted to ‘keep all union.

organizers off [its] premises, both inside and outside.”

ri Trial Examiner “correctly found this rule ‘to be an:

unduly -broad, and: hence invalid, nonemployee no-solicita.

tion rule violative of Sectio 8(a)(I) of the Act.? But

he held sionetheless that Respondent did not act unlaw-.

fully in ejecting Kapetanakis from the store and in having

him arrested in the cireumstances above set -out..We do

not agree * ie eh | : 3

_.: We are not. faced here, jwith the question of whether _..

Respondent could lawfully -have: prohibited Kapetanakis.

_ from engaging in unio ‘solicitation on its ‘selling floor.*

ee We agree that these- cireumstances. this

- from N.L. B. B. v. Babcock and W. Co., 351 U.S. 105: Beco

. 2 In finding this rule to be uadul :

took into consideration circumstances disclosing that there were

- ho reasonable means available to. the nonemployee. representa-

tives of the Union to reach Respondent’s employees with its or-.

ganizing message except at the Respondent’s premises; that the ee

complex in which Respondent’s stores were ,located contains

other business enterprises; that there are no fences, or -gates

around Respondent’s parking ‘lots; that Respondent does not .

Station guards there for. the purpose of refusing access to any-

one;-and that there are no: — ‘barring trespassers from its

union solicitation by employees on its premises, while: permitting

antiunion solicitation, thereby further restricting employee ‘op-

* See the following cases involving retail store operations in

which we have held that employers may lawfully prohibit’ non-

employee union organizers. from soliciting and from distributing

union material in certain areas of the retail storé premises and

* enforce violations of that prohibition by expulsion and by main-

¥ broad, ‘the Trial Rxaminer ; id

' Fested in the full view of its..employees ‘was not justified

(| | i oe the police to have Kapetanakis expelled and ar- Ae

[:.> dpa legitimate business ennsiderations, bat was moti-

< ais ee ee e ‘.

Wield edna aly Diol ir BR pis Sree Wie

ee pe

‘ ; ee *

“had a ianitoly catia piliey. against ellewing ike:

_ charged employees ‘on its remises, and Stahl had been .

“discharged by Respondent for just cause in the latter part -

of. May.» In excluding Stahl from the store Respondent

was, enforcing its valid rule forbidding discharged £m-

ployees on its premises. Accordingly, in’ these. circum-

stances, we do not believe a finding. is justified that Re-

spondent violated Section 8(a) (1) of the Act by excluding a a

| 4. The Trial Examiner ales found that the sical >

. did. not violate Section 8(a)(1) of the Act by its inter- *-

‘ rogation of: employee Ragle. We. disagree. | The. Trial

Examiner found that in October, Respondent’ S supervisor,

“Cavellier, approached Ragle, who was wearing a union

- °° button, and asked her’ if #he would “like to have the

Union. in here.’? The conversation ‘continued along this —

line for several minutes. Respondent up to this time had

“engaged in numerous unfair labor : practices, including |

interrogation, threats of loss of benefits: and discrimina-

‘tory disciplinary action against this same employee. ‘In

‘the context of Respondent ’s other substantial violations

of the Act, we find: that ‘this interrogation was coercive

and in violation of Section 8(a)(1) lof es Act. é

cues ts Section 10(6) of the National haber Rela-

-* Board adopts as its Order the Recommended Order of the .

° rial Examiner, as modified herein, and orders that the . — |

Respondent, Central Hardware Company,. Indianapolis, meee

Indiana, its officers, agents, successors, and assigns, shall |.

- take the action set forth in-the Trial Examiner’s ‘Recom-

mended Order, as amended below. 5.

1. Add the following paragraphs. iy and (t) to the ‘

Trial Examiner’s Recommended : Order, renumbering the.

d peeeeny paragraphs sia ne ae) & ang 1(f) to ay):

ar)

: 7

{

wae

‘y fs

io) Belong in oinintry er any. ra

ie pertaining to union activities on company time.-

(fy ‘Coereively interrogating * employees ‘concerning |

their or other ‘dont ‘union roe oe

- and desires.

2. Sebebtets the attached notieg for the notice sieudced ;

“Appendix”. attached to the Trial Examiner’ s Decision.°

It Is Farther. Ordered that the complaifit herein be, and.

‘it hereby is, dismissed. insofar as it sakarnie: violations of 4

Bo: Act not found herein.

Dated, Washington, D.C, seca 4, iso.

FRANK W. .McCULLOCH, Chairman

JOHN.H. FANNING fe Member

GERALD A. BROWN : Member

(Seal) NATIONAL LABOR RELATIONS BOARD

: a DEX

“. NOTICE: TO EMPLOYEES

}

Pod by Order of the Notional Lator Relations Sear

An Agency. of the United’ Statés Government

! 6In the event that. thé Board’s Order is eatofos 1 ‘a _ judg- is

monet of ‘a. United States Court of ere the w in the.

aaa

‘WE: “WILL N or make, or enforce, any rule prohibit.

ing any employee. from soliciting any other employee

to. become. a member of, or to support, Retail Clerks —

Union Local No. 725, or any other union, in ponsell- -

ing or nonworking parts of our stores during ‘non- .

working time. As such a rule was announced. _

; Slbesexeer ga ‘given by George Reed,, our: -vice. president,

"On, June -13, 1968, WE WILL. cancel it.

WE WILL N OT question any employee as to whether

- ih a a WW NOT |

_ _ lay off, suspend, or in any other way punish Naa em-

ers ~~ ployee for not obeying. such a. Tale. °.- = |

‘ ‘WE. WILL. NOT make, or. enforce any rule prohibit.” .

| ing organizers or representatives. of Retail- Clerks .

Union Local No. 725, or any ‘other union, from com- .-

wz o | ing on our parking lots to solicit, or to arrange to |

2 solicit, any employee to become a member of, or to

= support, Retail Clerks Union -Local No. 725, or any

other union. As such a rule was announced in letters _

to employees, dated July 15, 1968, signed by Stanley

M. Cohen, our president, WE. WILL cancel it. -

"WE WILL NoT reduce your salary, or wages, or any

other benefit you now have, or do anything else which

* will be to, _ disadvantage, and WE WILL NOT

threaten -do apy « of these things’ for the purpose of

encouFagin you: not’ to ‘supp port, or not to become

Members. of Retail Clerks Union Local No. 725, or — -@

"any other’ ynion. , 3

- WE WILL: NoT raise your salary or wages; or give

ee you enty benefits you do not. now enjoy, and WE .

z ELL NOT promise to do any of these things for the. |

a ae _ purpose of encouraging you not to support, or not to

.. become members of, Retail Clerks: Union Local No.

725, or any other j union.” :

wee wey bites

a , ; 0 =). te . ‘ aS aes 8

5 . + . : @ P| = < +4 *

a d & WILL NOT fire, layoff, suspend, fail or refuse.

Yeinstate, or discriminate against; any employee

for engaging in union activity or for joining any

union. As it has been decided that we discriminated

> against Marilyn Ragle’ in. this manner when we sus. _

pended. her because she engaged in activity ‘in sup- -

_ Port of Retail-Clerks Union Local No. 725, WE WILL

pay her for any loss. of wages she suffered because we

“Suspended her, = ea tee eee ak

| a : WE WILL-N OT coercively ask employees questions

' a about their and other employees’ union membership, °

.. strain, or coerce ‘you in the exercise of any rights’ _

- guaranteed to you. by the National Labor Relations

- Act. In this connection WILL respect your rights

- sto eye ewe form, join, or assist any

union, to bargain collec ively through any union, or

representative of your choice as to wages, hours of _

_Work, and any other term or condition of employment.

You also have the right, which WE WILL‘ also re-

‘ spect, to refrain from doing SO.. *

“All our employees are free to become or remain, or not to.

i me or remain members of Retail Clerks Union Local

3 No. 725, or any other union, | _ “

- CENTRAL “HARDWARE COMPANY”

4 (Employer). | |

j BY esse ee ict oo

babes (Representative) (Title)

ae S . A

—a—

a "This Is an “Oficial 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 N, otice or compliance

. 614 ISTA Center, 150 West Market Street, Indianapolis,

_ Indiana, 46204, Felephong 317- oto-S0al,

DECISION OF THE EIGHTH CIRCUIT _.

_ COURT OF APPEALS

" United States Court of Appeals -

For the Eighth Circuit

(439 F. 2d 1321)

Central Hardware Gerney, >

Petitioner,

Vv.

National Labor Relations, Board,

_ Respondent,

Retail Clerks Union, Local 725,

. Retail Clerks International: As-

" sociation, AFL-CIO,

| _Intervenor. |

On Petition for Re-

~ view and on Cross-

Application for.

Enforcement of an’

-Order of the Na-

tional. Labor Rela-

tions Board. ~

[March 24, 1971.]

— 75 — ef fo ive

Before Gibson and Bright, Cireuit J udges, and ‘MeManus,

_ Chief District Judge. -.* |

Per Curiam. ae ae

The petitioner, Central Hardware Company, seeks fe-

view of the National Labor Relation’s Board orde (re-..

‘ported at 181 N.L.R.B. No. 74) and the Board files a.

. Labor Relations Act (29 US, § 158) and affirniatively

sia The petitioner, Central Hardware

requiring the petitioner to revoke and withdraw its’ no-

‘solicitation rule and to reimburse. employee Raglée fora

three-day loss of earnings. f.

The actions found to be violative of §§ 8(a)(1) and (3)

- of the Act occurred during an organizational campaign by noe

representatives of the _Retail’ Clerks Union, Local 725,

Retail Clerks International Association, - AFL-CIO, inter-

venor, at petitioner’s two stores in the Indianapolis,

Indiana area in 19681 The petitioner (hereafter called

Company) opened two retail stores on thé outskirts of -

Indianapolis, Indiana, in the spring of 1968. The: stores

were designated as the East Store and the West Store. _

Hiring was commenced about April 15, 1968, culminating

with a work force of some‘125 employees for each store

at the time .of the openings on June 3, 1968. The Board

found the Union began an organizational drive a week or

so before the stores opened, but the. record shows. that. -

the Company hired Edward Stahl, Jr., in April 1968 jas

an employee, not -knowing that Stahl was an undercover | .

Company, operated 10 re- -

tail hardware stores, 8 in ‘the St. Louis, Missouri area and 2 in

the Indianapolis, Indiana area.- The petitioner is a. Missouri

. corporation with its: principal place of business in St. Louis,-

Missouri thus jurisdiction is properly lodged in the Eighth Cir- -

: id

agent for thé Union and’ was paid to-work full time for. __

the Union in organizing the Company’s Indianapolis -

stores. Stahl received. full time. salary both from ‘the

Union and from the Company and utilized his. position to

talk to the employees and solicit them to join the Union. |

_ He was instrumental in supplying: a list of the employees,

80 per cent complete, to the union organizers.

'. Some 9 or 10 union organizers from’ both outside and

| | within the Indianapolis area conducted _a blitz type cani-

paign seeking signed authorization ecards to establish the

- Union as the bargaining agent for the employees of both

- Stores. During the first month of. the. campaign, com-

mencing May 21, 1968, the Union received 92 signed au- |

thorization ecards, but. during the-next three weeks of the

campaign the Union only received -17 signed authorization

. cards. The decrease in the number of signed authoriza-

tion cards was apparently due to the removal by’ the

Union of most of its outside organizers and a decrease

in activity of Indianapolis organizers who had other regu-

_ lar union functions to perform -in connection with other : ;

_ employers. . oe eae 2 i ra |

__ The organizational campaign took place primarily on

the Company’s parking lots.. The ‘Company had a no-

solicitation rule which it enforced against all solicitational

operations in the stores and in the parking lots. A num. ;

ber of employees protested to the Company concerning

the union organizational activity on the parking lots, com-

_ ~plaining that they were detained in leaving. the lot and

were threatened; they sought protection when leaving the ,

store at night. This complaint. was, at the suggestion of

~. Management, pla¢ed in written form signed by 97 out of

’

preor scent Neen anes a ee Ey rte a alate nse aay »... OR rae

_ 125 employees at.one of the stores and was directed to

an executive official at St. Louis, Missouri. The signed .

complaint stated in. effect that the undersigned employees

did not want to be harassed-any more by the Union and

they did not wish to join this Union,

SD IR ip AE

parking lots,. mnkided with the allegedly eibietr: non-

empleyee no-solicitation rule, violated § 8(a)(1). of the ~

_ .Aet;.and -that the Company’s interrogation of employee ~

Ragle concerning her union sympathies ang a speech by

vice president Reed. exceeded the permissible bounds of

Resend i — Bla)(1)- of. ice pitied Meee

he : ! NO. SOLICITATION RULE -

A Thisployeen.

The Board. found that ‘the Béuciawy s. poaenineeg no-

: solicitation. rule was overly. broad and was also discrimi-.

natorily applied in that the Company allowed anti-union

solicitation while taking a strict, stand against all other

_ ‘types of solicitation. Employee Ragle was suspended for’

three days for violation of .the Company’s : employee no-

solicitation. rule: The Company’s rule on employees’ solici- -

tation. was quite broad and prohibited solicitations on. -

the Company’s premises without. limitation as to time or

place, in the absence of Company approval. It is evident

‘that such a broad employee’ ‘no-solicitation rule is invalid

as constituting an-interference with the employees’ rights

—~ta.conegrfed action.. As a matter_of. congressional - policy,

employees under § 7 of the Act (29 U.S.C. § 157 ) have the.

right.to organize ‘and engage in concerted action for pur-

poses of ‘mutual. protection and collective bargaining; and

employees by an amendment of the Act in 1947 also have

the. right to refrain from such activity. Under § 8(a) (1)

of the Act (29 U.S.C. $158), an employer must respect

an employee’ s §7 rights and may not’ interfere, restrain

or act coercively with respect to. these rights... :

‘The Supreme Court i in Republic Aviation Corp: v. NLRB,

324 U.S. 793 (1945) upheld the Board’s authority to view

_ overly broad employee no-solicitation rules as interfering

with’ the ee § 7 rights and. thus agi unfair

labor practices under § 8(a) (1). Both the Board and the

Court, in balancing the respective rights of management.

to. conduct ‘its own affairs and. the employees to freely

organize, recognized that the- employer may make and

af - . @nforce reasonable rules _ governing the conduct of m-..-

ni ~++hon-...__ Dloyees on company time. Absent discriminatory factors, 2

# this- would include prohibiting nnion Solicitation by em-

ms outside working hours, even though on the company’s

‘ployees? activities during the non-working periods may

: not be unreasonably. restrained. Republic ‘Aviation Corp. |

a NLRB, Supra at 803. Therefore, sany rule prohibiting:

= employee union solicitation outside of working hours is

= viewed as. an. unreasonable impediment to self-organiza-

a tion and discriminatory, absent evidence that such a:rule -

is necessary in order to maintain production or discipline.

An employer in the retail business\ may ‘in additier pro-

_ hibit employee solicitation in selling areas during non- -

_ .. | Working time as such solicitation could prove disruptive _

5 . Of the selling operation.. However, the prohibition may

q not extend to the non-selling areas of the company’s prem-

ises. NLRB. v. May Department Stores, 154 F.2d 933, 537

(8th Cir.) cert. denied, 329 U.S. 725 (1946). 2

0 Le

we Dien: ot

_- Supra; Jas, E. Matthews ,v. "NLRB, 354 F.2d 432 ‘(8th |

Cir. ), cert. denied, 384 U.S. 1002 (1966). >.

‘The overly broad no-solicitation: rule of the Company.

(characterized as being a matter of company policy even .

before it was communicated to the employees of the East

- and West Stores). was violative ‘of. § 8(a)(1) of the Act. |

“Although the Company had a Tight to prohibit employe

- solicitation on company time, the overbreadth of t aE ag

constituted interference with the employees’ § 7 fights of

3 ar On wks respect to employee Ragle, the Com-

pany never made clear to her what bey Flats were in.

respect to émployee ‘solicitation, and it appears that the

-Board’s. finding of a §§ 8(a) (1) and (3) violation for her

three-day | suspension is supported by substantial evidence

on. the. record...

B. Non- Employees. . Z 2

We next oskaidcl’ the Company’ s no-solicitution rule

barring non-employee union organizers from: contacting

Company employees| on Central Hardware’s business .

premises, including its parking lots. Each of the Com-'

_pany’s stores has a parking ‘lot located in front of and.

- along one side of the store. The store employees park in

specified areas of the lots, which accommodate about 350

cars. Other smaller businesses located nearby provide

their customers with separate parking. facilities, Only |

Central Hardware’s employees - and customers use the ~

parking facilities provided. at each of their two. stores:

The Board made no specific finding concerning opp “ae

' sive solicitation taeties practiced by’ union or érs in

_ these parking lots. It did, however, specifically . find. th ey:

- petitioner Central Hardware -had made its lots: accessible._/

to. the public without limitation. Applying princip 5" ae

"enunciated in Food Employees Union Local 590 v. Logan —

ee Plaza, 391. U. S. 308 ee and Solo Cup nee,

<a Hn MERE 65 19 WE REID ° ee ee ee —

- that the + aie ’s determination in Solo Cup, Supra, was

aden

+. 172 NLRB. No. 110 (1968), the Board declared the’ Com. |

pany’s non-employee no-solicitation rule- overly broad and

found its enforcement in the instant case to be violative

. OF $8(a)(1).- 7 ake ee

The ‘Cémpany contends ‘tha

lots ‘for customer and employee parking preserved the

“private: property’’. characteristics of this, parking area.

failed to show that the employes were. beyond the reach

t restricting: the use of the.

‘It argues that the area did not become available for gen-.

_ eral use by the public or for - pecial use ‘by, uhion or-

_ ganizers.. The - Company alleges that since the Union

_ Of reasonable union. efforts. fo communicate with \them,

, the record furnishes no basis for } § 8(a) (1) violation in f

_ enforcement of this non-empJoyee o-solicitation rule. On

this petition for review, the Company relies upon NLRB.

v. Babcock & Wilcox Co., 351 U.S. 105, (1956), and the fact .

subsequently reversed in NLRB »v. Solo Cup Company, .

#22 F.2d 1149 (7th Cir, 1970). We briefly examine the _

€ Wilcoz, supra, the. Court determined that an employer’s

refusal .to permit. distribution of union literature by non-

- @

parking lots adjoined the fenced-in plant areas, In. Bab-

cock & Wilcoz, the Court emphasized the fact: that other -

channels of communication were available to the: union

: = a [A]n employer may validly post his property’

_ against nonemployee distribution of union literature

. if reasonable efforts by the union through other avail-

able charinels of communication will enable it to Teach. |

the employees with its message and if the employer's -

‘notice or order’ does int dincisninate, against the

~ union mY, ssa other distribution. bie a

oy he bight of self-organization. dopedie 3 in some --

measure on the ability of the employees to léarn the'

advantages: of ‘self-organization from others. Conse-.

. quently, if the location of ; the 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 alloy the union to ap-

proach his employees, on his property: No such con-

_ ditions are'shown in these records, ty Aaa

: .. Though the quarters of the /employees are scat-

_ . tered they are in reasonable reach. The act requires

only that the employer refrain from interference, dis-

ori: crimination, 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 or-

ganization when other means are yengnly available.

[351 U.S. at 112114.) /

In NLRB i v. Solo: Cup Company, supra, the Seventh

. Cireuit followed the rationale of Babcock. &- Wilcox and —

. _ rejected the Board’s determination that an industrial park -

_ containing plants of eix*t companies, including Solo Cup,

constituted a quasi-public area open to the public as well

‘as to union organizers seeking support from Solo Cup’s

. es

’

employees. In distinguishing these circumstances’ from .

_ those i in Logan Valley Plaza, supra, the court said :.

While there were no fences surrounding the area id.

no guards were: posted at’ the entrance : to the [In-

dustrial] District, the District was still private prop-

_ erty and not open to public use. . None of the

": companies located there held itself out as being open

.to the publie, and the general public had nd reason

to enter the area. [422 F.2d at ce

’ ‘ ,

‘ie :

os t

: Sa 83 —

ping center complex known as the Logan Valley Mall. Weis

ae ‘union labor and that Weis’ employees were not, receiving

_ union wages or benefits. Weis and Logan Valley Plaza

obtained an injunction against this: picketing in the Penn-

| ‘sylvania state court.: The state court enjoined the pickets.

‘market, the’ parking lot of the shopping center, and the

parking lot entrances .and exits, The Pennsylvania Su-

preme Court affirmed the issuance’ of ‘the injunction on the « j

ground that the pickets liad trespassed under state law. -

The United States Supreme Court reversed that4udgment,

holding that a state, by the use of its trespass law could .

“not bar picketing in the ‘shopping center area, The Court

began with the prémise that ‘the First and Fourteenth:

Amendments’ forbid a state from ‘prohibiting peaceful

. picketing in a place’ generally open to the public; absent ne

special factors relating to the Purpose or manner of the

picketing. ‘The Court likendd the circumstances to that of - 3

_ the company town in Marsh ‘vy. Alabama, 326 U.S..501 - -.

| " (1946), commenting: a ee REARS) -y

. ‘*. .« In short the. town and its shopping district

“ eorporation.”: 396 U.S., at 502-503, [391 U.S. at on?

. . P.

a. ;

. All we decide here i is that Sa the shopping enter

serves as the community business block ‘‘and is freely

: accessible and open to the public in the area and

‘those passing through,”’ Marsh v. Alabama, 326 US., .

‘ — * at-508, the State may not delegnte the power, ‘eee. ;

the use of. its trespass laws, wholly to exclude those |

- members-of the public wishing to exercise their First. — a

~ Amendment rights on the premises in a manner and P

for a purpose generally consonant with the use to —

which the property is ny. puts [391 U.S: at 319-

8 We: stint from i premise that. janie picketing

, in \ location. generally open tq the public is,

tors involving the purpose or manner of

cted by the First Amendment: : eee

ion organizers in soliciting ‘support ve

eh ick sath e ercise First Amendment

" ". yights." The essential di | between Babcock & Wil-

cox and Logat Valley Pla gerd upon a determination,

as to the use of the- ‘properties } \ question.

‘iiiens

si see laa bates Bae orn eee

~~ In the instant case, the Board nd that the “enclaves. i

in which .. respondent’s stores are’ lovated . also contain — 7

other . business enterprises”’ ; t o fence’;gates, guards

or signs’ bar. anyone ’s use of the preniions that the

‘premises i in question are ‘‘accessible to the public Without

- limitation.”’ This situation more’ nearly resembles the cir.

cumstances presented in Logan Valley Plaza than those”

_ presented: in .Babéock d Wilcox. The Board’ here’ found

‘Central Hardware’s 8 parking lots to be generally open

to the public, to have ‘a quasi-publie status.’’ The record,

' as a whole, farnishes' adequate support for this: finding —

which -th binds us upon our review. 29 U.S.C., §.160(e):

See MLRB v. Walton Mfg. Co., 369..U.S.- 404 (1962) ;

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

Under the mandate of: Logan Valley Plaza, we hold the =

~ Company’ 8. re no-edlicitation - to be —_

. é 3 ae 3 ; 2 +

vem a Py *. ome w. yee ve~ a Ot Seco — we eto a . aa z

. :

Union representative Kapetanakis’ arrest as an unfair

labor practice. We think this finding lacks substantial

_ Support in the recgrd. The Company had the right to ‘bar. aay

. Kapetanakis from the store; he was not a bona fide cus-

and that if the employees were’ to select the Union :

_ their collective-bargaining representative ‘all bets*are off

a threat that they, would be discontinued or minimized :

if the Union was supported.” 3

The Board acknowledges. that the employer is free. to

_ Communicate its views respecting a union or union repre-

‘permitted and made meaningful, the employer a8 well as — 2

‘not contain ‘‘a threat of reprisal “or promise of benefit,” |

86 —

-NDRB v. ‘Gissél. Packing 7, Inc., 395. U.S. 575

(1969).. There is no threat of retaliation ‘and the words —

spoken do not: appear to contain any promise or threats.

. The employer . certainly. is entitled to state that its em-

_ ployees are currently being better treated than comparable.

unionized employees and also to convey the legal facts of

life that if a union is, voted as the bargaining representa-

_ tive the employer must bargain with the union rather than

7 offer increased benefits directly to the employees.

The real test here is whether the employees could ‘rea-

_ sonably . conclude that they were being threatened with

economic reprisal. NLRB v. Loutsiana Manufacturing

Company, 374 F. 2d 696 (8th Cir. 1967). There is no evi-

dence that any employees were so intimidated and the

entire speech itself: appears to be within the permissible _

limits of § 8(c). (29 U.S.C. § 158 (¢)). During the course

of his ‘speech, vice president Reed ‘stated that the Com-

pany recognized the rights of the employees to deter--

mine for themselves if they would like to organize and,

after presenting his argument against the Union’s efforts,

- concluded, ‘‘Let me say again that the decision to organize’

rests with each and everyone: of you on: an individual —

basis.’’ Neither this speech nor the subsequent actions

_of the Company. give rise to a valid conclusion that: the

Company was threatening reprisal or ‘promising benefits

over. and beyond the permitted general. statements that

the employees would be better off without selecting the

\ Union as their bargaining agent, which in turn is merely

\a counter statement to the Union’s position that- the em-

~~ ployees’ benefits and conditions of employment would be

‘bettered by joining the Union. There was no specific

- promise of an immediate increase in benefits, 7? not sup-

"porting the Union.

The Board. also found supery isor + Cavellier’ s question to |

eo me: as to whether she would “like to have

. ‘ 3 aed

CDAe aie te 2 ee

ind FS

, . e °

: pei yy J M

ii itera si Aaa

* ee : .

a) .

. — 87 — *

pany v. NLRB, 332 F:3d 429 (8th Cir. WO).

In conclusion; we therefore hold that the Company com-

mitted an unfair labor practice in its. overly broad no:

GiBson, Circuit Judge (concurring in part and dissenting

in part): a soe. a

ord does not disclose picketing activity by the union

organizers. This is a‘ critical distinction which the ma-

jority fails to discuss, The Logan’ Valley decision - ap-

> the public, noting.that where-an owner places his property

in public use; the owner’s rights are: circumscribed both

by statutory and Constitutional rights of those who use

- gg

~ the property. In my view, the union picketing in Logan .

. Valley 'is a distinctly different type of communicative ac-

__ tivity from the union: solicitation activity in the instant

case. The First Amendment interest in protecting peace-

ful picketing is obvious since picketing has as its objective

_. the conveyance of. a mes to.the public, but is con- ;

siderably less clear here where the union’s solicitation

: message is’ directed solely to the company employees and

is imposed, by: confrontation and argument (to which some

employees objected). Consequently, I view this question

as limited. to the statutory rights of union organizers to .

communicate with employees and conclude that.the stand-

ards articulated in Babcock, rather than owes Jane i

” are controlling.

Furthermore, I do not think pea Volley § is’ seclielie

because the parking lots in the instant.case were not of

such a public character that the owner lost or waived

almost all rights. of control: over their use. The trial

- Examiner’s and the Board’s characterization of the park-

ing lots as equivalent to shopping centers is not warranted

_ by the evidence. These parking lots were solely for the

benefit of the employer’s customers and employees. .They

were not set up for the purpose of allowing ‘‘one-stop

shopping. ” They were. not public squares or the equiva- —

_ lent and they did not create a ‘‘cordon sanitaire.’ These

parking lots were*set up and maintained: for the sole pur-

pose . of . supporting the employer’ s business and none - |

other. The fact that a few small stores were: adjacent to

the lots would not alter their character into that of a

_ shopping’ center operation. In no sense of the word are

these private parking lots (maintained for employees and

potential customers) public streets, — i anon public

parks or their equivalents.

In Babcock the Supreme Court held that a company. can

‘lawfully post its property against. non-employee . solicita-*

: tion. ( ») gf reasonable efforts by the union through other

‘Utilizing this. standard, Ei: must conclude that thes Com- .

pany’s non-employee no-solicitation rule is lawful.

- Places, cf. NLRB yy. Stowe Spinning Co., 336 U.S. 296 ;

(1949); or ‘a resort hotel where th employees live on

373 F.2d 26 ( 2d Cir. 1967) ; ora lumber camp where em-

_ ployees live on the company premisés, NLRB v. Lake

Superior Lumber Company, 167 F:24 147 (6th Cir. 1948).

| rule under the rule enunciated in, Babcock.

. Applying the second part, of ‘the Babcock test to the

instant case, I find that While the Board found that both -

"the employee and non-employee. no-solicitation Tules were

discriminatorily: applied, the record does not contain sub-

— 90 —

stantial evidence that the non-employee no-solicitation —

rule was discriminatorily applied. ‘There is. no evidence -

_ - of any non-employee solicitation being permitted or sanc-_

- tioned by the Company. This finding is drawn from thin

alr, completely devoid of factual substantiation.

_ +

The majority opinion, which i in’ effect appropriates and

| directs: the use of the Company’s parking lots.for union |

organizational purposes, goes far beyond Logan Valley;

it sanctions trespass and impairs personal and property |

rights on the altar of. collectivism. The result reached by

the/majority is an improper balancing of the rights of

Management to reasonably control its private :property

and the rights of employees to organize; it is neither.

warranted by law nor supported by substantial evidence

in the record. I would not order enforcement of this seg-

ment of the Board’ 8 order. .

_ A true copy. |

Attest : | |

Clerk, U ‘ S.-Court of Appeals; Eighth Circuit. :

CONSTITUTION AND STATUTORY _

PROVISIONS INVOLVED

- United States Constitution

Amendment No. 3") |

Congress’ shall make no law i Aisi abridging the i

freedom of speech.

‘Amendment. N o. 5-

No person. shall * * * be deprived « of. life, Hibecty or

property without. due process of law; nor shall. pri-

vate property be taken for public. use, withoss just

( compensation. a

—

PAD Alby Coc Batiie bay

’

—) we

National Labor Relations Act

Section’7 oe e

Employees shal] have the «right to self-organization,

to form, join, or assist labor organizations, to bargain

- %ollectively through representatives of their own *

choosing, and to engage in other concerted activities —

for the purpose of collective bargaining or other mu-

_tual aid or protection, and shal] also have the right to .

refrain from any or all of such activities:* * *

Section 8(a) (1)

It shall be an unfair labor practice for an employer

_ by discrimination in regard to hire or tenure of em-

ployment or any term or condition of employment to.

@ witness called by and on behalf of ‘the General Counsel

being’ first duly sworn, wag examined and testified as fol-

lows: | ee a ere : ;

3 ae . 4 * ¢ “td ce poop a.

° . k :~ “ OO

MAI ‘Direct Examination

. By Mr. Fogerty - | :

Q. By -whom are you employed? A. Retail Clerks Inter-

national Association. oe oe tee .

- -®* Numbers appearing in brackets in text indicate Page num-

bers of original stenographic transcript of testimony,

Q. About ave long have you. been seninit ~ them?

_ A. Approximately five years.

, 2: What is your job with Retail Clerks International

_ Association? A. Field organizer representative.

ee Q. Did you have occasion to be in Indianapolis in ‘the

summer of 1968? A. Yes, sir, I did.

- Q. What was your occasion for leing there? A. To.

—~ assist the Local in ‘organizing . of the Central Hardware

store.. =~ Bs

-Q. By Local you are referring to the Charging Party a

in this case, Local 7251 [18] A. Yes, sir.

{ge Directing. your attention to on or prea J uly - 22 3

‘1968, did you have occasion to—tell us what happened pi

- that date? A. Well, Ed Stahl who is. the Local representa-

| * tive and myself were assigned certain people to home call ,

of the Central Hardware Store. : he oa

ig Deg >

The Witness: After home calling ‘the employees’ Ed 3

Stahl]. and’ myself in separate cars went to the Central | ,

Hardware Store.

[19] By Mr. Fogerty -

- Q Which store? A. On the west side.

‘Q. Do you know the approximate location of that storet

A. It’s on mere Road and saan a Street I be- ~

lieve. .

Q. Would you tell us what penal when you went eee

the store? A. Yes. We sssiiapes in the parking. lot and me

- Stahl. and myself— os

Trial ‘Examiner: The store’ s sic lot?

‘The Witziess: Yes, sir. And we started to précced ' to «

the store. As ‘we got about halfway from our car to the -_

stom, Mr. Hagerman who is right over there——

Sy : e a tee

PIA e nee Nee en a enor et Ae tae Ny seer aenemere verte ete ta recs - — sida > .

_ \the parking [20] lot,. that we were ing suppos %

” By Mr:*Fogerty

_ 4 customer and that I would not be talking to his people

_; Chandise and buy some merchandise if I did. see something i

that I liked :

asked him. if he meant that he didn’t want Union people

8 Ge

Trial Examiner: Let the. record er that the witness

is pointing j in the directio on of the table at —_ counsel.

for the Respondent is seated.

By Mr. Fogerty :

Q. Whe is Mr. Hagerman, if you know A The gentle

| man——

Q. What ; is es position . with ‘Central Hardware? A

"-He’s store manager.

_- Q Would you tell us what lates ‘ that point? . a

Well Mr. Hagerman told us, asked us what we were doing

and we told him we were going into the store. And he

told us at that time. he didn’t want us in the store or on

— the employees,

‘Trial Examiner: Was that his word or your car

terization?

The Witness: N o. ‘This is his eae | ae

‘And that he didn’t want us in there talking to his. cteced |

on Company time. ~ fy ae ; Hes

—Q What did you 6: say, if anything, in response to this? -

A. Well, :I told him that when I went into. the store I was -

about the Union, that I was going in to look at the mer-

Q. What, did Mr. Hagersian aay, if anything, t6:thist

. A Well he told us that he didn’t want our. business. I

in’ his Store and ‘he replied back that this ian 't what he

é ise

Trial Bxomiser: Your Initiale: mnee was that your

"words? Foze: a | |

' The ‘Witness: Yes, sir. Beran a picket 1 line.” ce re

By Mr. Fogerty

-Q. What did he say to that, if cavthinet 21] A.: well i

. he, nothing, just éther than I took what he meant wrong

oe that ‘he didn’t want us in the store and not Union people.

\ Q. What happened then; did’ you leave? A. No. Itold —

him we were going in the store and he said if we went

. into the store then he had orders to take action. I told -

Pee I was gqjng in as a customer and he could do = Le ae

- hig had to do.. as : ae

‘Q. Did he apesity Wisi action he had orders to tak :

A 3 lon’t believe so at the time.-

. Q. Would you tell us then what happened? A. Well \F

" turned to\Ed Stahl and told him to stay outside in cast

anything di happen and I went into the store by. myself.

_I went into\the sporting goods area and looked around. \ -

Then I walked hrough the store. Two or three employees \

approached me to. ask me if they could help me and said,

‘*No,”’ that ‘‘I was: just looking around.’’ I walked through

the store and back ‘to the sporting came and the _

- / equipment: department), ee

Q. Would-you tell us what happened then? A. Well as

: I was. looking at it I notiony a policeman coming into the —

. .' + store and went to the service: desk area and began talking |

- to Mr. Hagerman. Shortly after that the policeman came

over to me and asked me to leave the store. He asked who

_- I worked for and what I was doing i in town. * se

Q. Did you tell him who you worked for? A. I told him. .

I worked for the Retail Clerks Union.and that [22] we

_ were organizing in the Central Hardware. but; you know, I .-

_ was in the. store as a custoiner shopping. :

Q. ‘Did the, policeman leave! A. No. a ‘salicniesas in-

; sisted” that: I leave the store. I tried to xplain T wasn’t.

9, as

. « 4 ‘ f “oe %

Hae SRF the dete cee pias tone Pec LA re he nate i So . ae as te , seg fe

j ~ = mad eee ae . —_— — oc tere eden

talking to the employees on the floor, that I was just, you 3

' . know, looking at the ‘merchandise. He claimed’ that. the

‘ Company time and he refused to do that; . og ee ed

- Qin other words, you offered to confront the em.’ a

_Q. Was there any. other conversation? If so, what was

itt A. Well the policeman said, ‘“Well, let’s go ontside,”? ~~

“and he escorted me outside and ‘put ‘me in the back seat.

of his policecar. = ne eet

_ Q: Was. this a marked police cart. A. Yes, sir.

. | Q. By a police car are you .referring to an Indianapolis

police car or a sheriff’s car? A. City police car I believe.

_ Q. Were there any employees observing any of this dis-

cussion ‘you. had with the policeman? [23] A. Well I io.

’ ‘ticed employees coming to the store, this was about the:

time some of them were getting off and some of them were

- coming in, and they were looking into the car. Some of

. the employees were,-you know, around the area in front

of the store and were looking out to see what was going ~

Q. How could you tell these were ‘employees? -A, The —

women by the clothing, they have smoeks they wear which .

Wi Se ea seas “ae

identify them as employees. ae : sete : ~

| : ? 2 ; . | . eee as is : ; F

Q. All right, you told us you were - ut in the back seat. -

\ of the police car. Tell us - hat. happened, if anything. A.

shan.

Pee ie ti 2 iad

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