# Appendix — Central Hardware Co. v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0049%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 407 U.S. 539 ## Text : e een ES Upreme Sour ag Dee Mus cesit ty ces ce pe gr ot ae FTL | APPENDIX =| — ‘FES. 19. ar & . a Te ROBERT SEAVER, CLER ‘ In The: a - SUPREME cour OF THE — STATES” OCTOBER TERM, 1971 eo Y 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 “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 o 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, -| 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... A @ _— 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 g. Identify Principal Product or Service: Hardware. a 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 ‘ 3 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. “ a: 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) / mA 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: “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) ae ~ 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 : =) Respondent denies the allegations contained , in | paragraph d.(e) (1). ae ; ry 7 = 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: no 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 4 ~ [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: e. . : “ 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~ 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 t “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 a .¢ —— * 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 te “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 t 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- 2 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- e 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 4 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 ‘ ‘ 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 82 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.’’ 7 “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-: ee 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. , 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, i 44 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 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- a, 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 a , 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. ox 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 - BO | 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 2 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 Ce 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. . - . 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. f > : . 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. 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. a 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 : Es ae 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.: Sd ae 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- =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 '. On June 13, 1968, : the Respondent’s - Vice-President, © _. ‘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 purpose without pridr management approval.” ‘The Trial © 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. - =. Ss ©. > * 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 ee - 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- . 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- tions Act, as "amended, the National. Labor Relations © -* Board adopts as its Order the Recommended Order of the . ee » ° 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 a) e { i 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 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 e ‘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| = 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 i _ 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 , with its provisions,. may be directed to the Board’s Office, © . 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, ae 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 Y * 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- - . x : id ed 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. RB 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 - t 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- @. ployees during working: hours; but an employee’s tine © 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, 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 - | : © £4 ys ss 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 > ee 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 ae 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. 9 Pee ie ti 2 iad We Sees ght chine -to tho a -[24] people. on Compahy time, , that we should either home ee Bt... or have a meeti g. I told him’ we didn’t talk. to ae ee a ‘ ae I started to ay he said that - we should scpanins’ Rife a then awayfrom the tore and. not: at thé store, we should . ; Pie an [25] valor. Rave al meeting’ to. have them there. © s * . Then what \k ppened, if ‘anything? A. Well, the ; > \ on iceman ealled. for assistance on the radio. I believe | a c* \. was riot ¢ontrol or. hing on’ this- order that handles. . & i: this’ types of eee thi _ police ent I don"t -: Bh AN: know. Ppa | : “oh, ; \5 Ne cee =. "pial Bitaninoe; You don’t "know what ‘the policerian et ee > Phe’ Witness: No. ‘What Dm saying’ is I don’t know Z _ What: the Tiot: control’ 8 job i is.. | : “Trial ‘Examiner: “As. far as all you gk: reaiy ‘is that >the policeman made a eall on. his radiot . : pos ~ Rhe ‘Witness“He mnade a call to find out what to > do i in i ae a Situation: to the riot ‘eoritrol.. Trial Exatuiner: ‘Do: you Femiemiber what he said ¢ on this \ = Me The: Witness: He ‘aid be iad. a fellow. at the Central * «Hardware ‘that was. with the‘Wnion.. ue: AS REN aes Mr. Fogerty: What? as 7 fo ee ie 7 , — Th , The ‘Witueds: That was" with ‘the. ‘hae anid wanted eas me ‘assistance, someone ‘out there that knew. what to do : ag and a ‘colored lieutenant ‘came out there to handle it 7m Mr. Fogerty. eee coe ~ ; Q. What did. he eome out: int A, I believe he éame ont = ; in nla own car. ‘ . x : —97—. scene? [26] A. Right.- ‘\ Versed about what to do. And ,the one officer came back to me and said,. ‘Well, when I asked you in the store would you leave what did you tell’me?”’ And: I said, ‘‘No, a Q. So it was “still a second police car arrived on the Q. Then what happened? A. The three of ‘them con- ‘that I wouldn’t leave. But here I ari outside.’ He said, >, “You’re under arrest.”? Then ‘he, well he’ called the paddy Wagon and a wrécker to take my car m2 ere 9 . [27] Q. Could you describe for us. briefly tlie. description é of the paddy wagon? A. It’s a closed in-vehicle-with doors: on the back. .They led me from the police car around to’ the back of it where-t stepped into it. It was enclosed. Q. Was this an unmarked poli ce vehicle? A. Well it _ Was Marked,* ° 7 ye Oe es See eee Q. ‘In. other. words, it had something on the side? a sure. a coe s bee - eee Oe 2. ae a . — : 9 *. 2 * «? * * + . station. "=" ‘paddy wagont A: I was taken to the police station. Q. What happened when you Were at the police station? _ Yes. . Indianapolis Police Department. I believe. I’m ‘not : _ [28] Q. “What happened after, you testified they put you : _ - in the paddy wagon and they took you over to your car, ', then what happened? [29] A..They drove me to the police hoe _ [32] :Q. What happened afier you were ‘placed in’ ‘the : A. They: took ‘all the sharp instruments from me, .put me ; ‘in a cell with two other gentlemen, .Then after being there - for about 15, 20 minutes, mayKe a half hour, they took all my money and everything else away from me, then put me in another. cell. Then later on ‘they fingerprinted me, mugg¢d me— et OO eae x au . . ae Q. They mugged you? A. Took my picture with a num- | _ ber. And put’ me back in the-cell. I was there’ ayers: ‘mately. ‘three and a half hours before I. was released. eo ae ae 8 [i eee 7 Direct Examination _ __. By Mr. ‘Keciest. Q. Mr. Kapetanakis, where was the paddy wagon — in relation to the’ store?, A. Right in front of the front . doors. ° ; ros | - “ ‘ ; * * a a * ” a ; 3 , ; [35] Q. Where was the police .car or patrol car located? oe : ate ee ee @. @- _— . The Witness: .It ‘was just left of: the front doors ,right: _ -hext to the sidewalk which is oo in front ef the store. By Mr, Karmel | . _ . Q. If one stood in the front of the store, inside the store, pe that vehicle be seen? A. Yes, sir. i: From inside the store? A. Yes, sir. Q. Could the paddy wagon be. seen if one stood in "the _ front [36] of the store? A. Yes, re . | Q: Now another vehicle, the lieutenant’ s vehicle, drove. up after the paddy wagon, is that correct, sir? A. No, ‘be- ‘fore the paddy wagon: | ar alee \ Q. Before the paddy wagon a second patrol car. drove # \ ‘upt A. Yes. * | ne Q. “Where did: that patrol io stop? A. Right behind the . - one I was: sitting in. ° | ¢* * *# #® £. # \@- *@ |S . Gross-Examination oF By Mr. Mattern ae ™ LS wee B 7 ie dh, a en + _ : [37] Q. During the time you were in Indianapolis six: a &§ " geven weeks, during: the aay, you described you were in. - — a: the Central Hardware parking lot, about how many of | "these -home calls did you make on employees? A. Home calls I made. approximately maybe 50, 60 home calls, OR eR ey ee — - [38] Q. Tell me, if you can, the furthest. distance from _ . + * * 6° * .* . [40] Q. Who gave you that list? | Mr. Karmel: Objection. Ammaterial. Trial Examiner: Overruled, You may answer. The Witness: Charlie ‘Mercer, who is organizing direc- tor of. the Loeal.. -. , ital * * « * * # '¢ a nit? A.. ' Q. Did. the list have names. and addresses 0 Yes, sir. re ; Q. Did it have telephone numbers? A. Yes, sir. : Q: Did it have their job description.. as to what they _-Were, checkout clerk, warehouseman? A. If we knew: what they Were yes. -Q. But all of them had a name and address and phone | . Number? A. Well not necessarily a phone number. Se —--Q. But they all had an address? A. Yes. oe ee Oe [45] Mr. Mattern: We contest. certain aspects of the al. ; legation there is a rule’ barring Union organizers from the parking lot. We contest that allegation, ¢ We admit the no solicitation rule i is at the present time | in ‘fall force and effect. : * tid * * * * [51] Now answer + the question: Did you ‘show: that card to. -Mr. Hagerman? ; The Witness: No, I didn’t. . - 7 a . 0 6'* © 0 @ ® Saf us - [53] Q. You stated you come to the store whore an organi- - zational attempt. was going on — as a customer. What were you going to buy? | Mr. Karmel: Objection. ‘Trial Examiner : Ov erruled. ‘Phe Witress: Well, a was going to look at some. » got © equipment. — ee - 3 | | s vad By Mr. Mattern | a o -. Q. That is all you were going to ii is. look at golf equip- | mont? ‘A. Not necessarily. — | hat else were you going to do? A. I looked to see_ - who the employees are facialwise, Ww ho i is b working and who I can home call. | 7 - Trial Examiner : W hot The Witness : Who I can home call. . ‘By Mr. Mattern 2 You state you did not ; go in there to talk to any body t Be A. No, sir, I didn’t. : i You did not go into that store at any time ot on that date. to explain to any of these employees their benefits of — ‘self. organization under the National Labor Relations Act, is that correct?’ A. That’s right. eee * How many times did-Max ask you not to come in the: _ store? [54] A. Twice. v 101 - _Q. How far away from the store were you the first - timef = | : tes eG '* Trial Examiner ; Max | take it is Mr. Hagerman? | . Mr. Mattern : I’m sorry. Max Hagerman. = so The Witness: We were approximately 395, 40 feet away | from. the front door. 7 ae . By Mr. Mattern ta Sale Be Eee a = Q. Was Mr. Hagerman between you’ and ‘the front. . = door? A. No. I believe he was off to my left, | | . Q. And he asked you not to go into the store? ‘A. ‘He _ did. ‘ : yt ee ras . Q. And he asked you to please leave the parking lot? A. He told us he didn’t want us in the store or on the —Q.Now you say he asked you the second time to leave. told him I was going in and he said, ‘Well, we don’t want you in our store. We don’t want your business.” : [56] Q. The policeman, did he come directly back to you? bes Yes. ue LS ee eee | | a -Q. Did you say’ Max pointed to you or anything? Aa 4 No. I think he nodded his head that I was over there. “# Were you there by yourself ? A. Yes, gir, I was. es: Was anybody else around you?’ A. No. . Cee .Q. Was the policeman loud when he came over to you? A. Be 7 } Ene Se ae ; 102 i‘ Was he quiet? A. Pretty much so: -Q. He talked in a normal tone of voice? A. Yes: -Q. There was still nobody around you? A. Like I say,- I was pretty concerned with the policeman at the time. Q. I asked the question was there anybody anne Noam | A. I didn’t observe anybody at. the time. \ ee ee ae ae a a >. [59]. 9. When these other police cars began to arrive, did you observe any supervisors*or employees. come out and. Ee direct them where to park? -A. No. , ' Q. To the - [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0049%3A01. Public record. Not legal advice.