Ameron Automotive Centers, a Division of the Kelly-Springfield Tire Co.; F. W. Woolworth Company d/b/a Woolco Division, Joint Employees

National Labor Relations Board - Board Decisions

Nov 30, 1982

265 N.L.R.B. 511 (N.L.R.B. 1982)

AMERON AUTOMOTIVE CENTERS
Ameron Automotive Centers, a Division of the
Kelly-Springfield Tire Co.; F. W. Woolworth
Company d/b/a Woolco Division, Joint Em-
ployers and International Brotherhood of
Craftsmen, Professional and Allied Trades,
Local 101. Cases 29-CA-6676-1, 29-CA-6676-
2, 29-CA-6736, 29-CA-6823, 29-CA-6914,
29-CA-7015, 29-CA-7053, and 29-RC-4321
November 30, 1982
DECISION AND ORDER
On December 5, 1979, Administrative Law
Judge Stanley N. Ohlbaum issued the attached De-
cision in this proceeding. Thereafter Respondents
filed exceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions' and brief2 and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge found that Re-
spondents violated Section 8(a)(1) of the Act by
promulgating an unlawfully broad, written no-so-
licitation rule applicable to its employees. 3 He fur-
ther found that Respondents violated Section
8(a)(1) by promulgating a total ban on nonem-
ployee solicitation under circumstances which ef-
fectively precluded the Union from reaching the
employees with its message, and also violated Sec-
tion 8(a)(1) by enforcing this ban on solicitation in
a discriminatory manner.4 To remedy these unfair
labor practices, the Administrative Law Judge rec-
ommended, inter alia, that Respondents be required
Respondents have moved the Board to amend the "caption" in this
case to delete any reference to Ameron Automotive Centers, a Division
of the Kelly-Springfield Tire Co., on the ground that, as of January 1,
1980, Ameron and Woolco are no longer the joint employers of the em-
ployees employed at the automotive centers involved herein. Respond-
ents claim that Woolco is capable of remedying any unfair labor practices
found by the Board. The General Counsel opposes this motion. Since Re-
spondents were joint employers of these employees at the time the unfair
labor practices were committed, they are jointly liable to remedy these
unfair labor practices. Accordingly, Respondents' motion is denied.
2 Respondents have requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
3 The Administrative Law Judge also found the evidence insufficient
to support a claim that Respondents on several occasions orally pro-
scribed lawful solicitation by its employees. No exception has been taken
to this finding.
' As the Supreme Court noted in N.LR.B. v. Babcock A Wilcox Ca,
351 U.S. 105 (1956), an employer "may validly post his property against
nonemployee distribution of union literature if reasonable efforts by the
union through other available channels of communication will enable it
to reach the employees with its message and if the employer's notice or
order does not discriminate against the union by allowing other distribu-
tion." 351 U.S. at 112. In the present case, the record reveals that not
only were there no other reasonable means of communicating the Union's
organizational message to employees, but also that Respondent enforced
its ban on nonemployee solicitation in a discriminatory manner. Thus, Re-
spondent's prohibition is deficient under both of the criteria set forth in
Babcock & Wilcox
to rescind the published rule banning solicitation by
nonemployees 5 and to permit nonemployees to
engage in organizational solicitation of its employ-
ees on the sidewalks and parking areas adjacent to
its buildings and also in its restaurants. With re-
spect to the restaurants, the Administrative Law
Judge prescribed certain limitations as to the
manner in which such solicitation should be con-
ducted.
We agree with the Administrative Law Judge's
finding that Respondents violated Section 8(a)(1)
by denying the Union access to the sidewalk adja-
cent to the Woolco store. Our dissenting colleagues
construe this conclusion as, inter alia, adoption of a
"shopping center exception" to the general rule
that an employer may deny access to its property
to nonemployees. Yet even a cursory review of the
Administrative Law Judge's Decision in this case
reveals that he engaged in a detailed analysis of the
factors found by the Court in N.LR.B. v. Babcock
& Wilcoxs to be relevant in all cases involving non-
employee access to private property. After taking
into consideration all of the circumstances sur-
rounding both the Union's attempts to communi-
cate with Respondents' employees and the efficacy
of methods not utilized by it, the Administrative
Law Judge concluded that the alternative means
for communicating with employees here was sever-
ly restricted and, therfore, the employees' Section 7
right to receive information on their right to orga-
nize was jeopardized. Yet our dissenting colleagues
would under these circumstances have us deny the
Union access to areas which are otherwise open to
any member of the public-an "intrusion" upon
Respondents' private property rights which, in our
view, requires only a "temporary and minimal"
yielding of these rights. 7 We believe that Babcock
& Wilcox and its progeny do not compel such a
result in a case such as this.8 Rather, in striking the
* "Woolco Policy No. 30" states that:
Soliciting is not permitted by any outside person, organization or or-
ganization's representative among the selling and non-selling employ-
ees on the premises of this store at any time.
* 351 U.S. 105 (1956).
Central Hardware Ca v. N.LR.B., 407 U.S. 539, 545 (1972). The fact
that an area is open to the public has been considered relevant by both
the Board and the courts in applying the balancing test of Babcock &
Wilcox. See, e.g., Giant Food Market Inc., 241 NLRB 727 (1979), en-
forcement denied 633 F.2d 18 (6th Cir. 1980); Seattle-First National Bank
v. N.LR.., 651 F.2d 1272 (9th Cir. 1980).
* We are not persuaded by our colleagues' assertion that it is inappro-
priate for the Board to provide an order granting access to the Union
based upon Respondents' discriminatory application of its nonemployee
no-solicitation rule. Even assuming that Respondents' denial of access to
the Union was not otherwise unlawful, the discriminatory application of
the rule alone is sufficient to warrant such an order. In Sears Roebuck &
Ca v. San Diego County District Council of Carpenters, 436 U.S. 180, 205
(1978), which is quoted by our colleagues, the Supreme Court reiterated
that "[t]o gain access, the union has the burden of showing that no other
Continued
265 NLRB No. 58
511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
balance between the Section 7 rights of the em-
ployees herein and Respondents' private property
rights, we find that the effective exercise of the
former requires a minimal intrusion upon the latter;
namely, union access to public areas adjacent to
Respondents' business.9 This finding in no way ex-
cepts shopping centers from the general rule pre-
scribed in Babcock & Wilcox but instead is a consci-
entious application of the criteria set forth in that
case to the circumstances presented herein.1 0
However, the Administrative Law Judge further
found that the issue of whether nonemployees were
entitled to access for union solicitation purposes to
Respondent Woolco's "Harvest House" public res-
taurants required application of the "balancing"
test prescribed in Babcock & Wilcox Co. We do not
agree. Respondents' nonemployee no-solicitation
rule purports to prohibit solicitation by nonem-
ployees "on the premises of this store," thus en-
compassing the "Harvest House" restaurant prem-
ises. The Board has held such rules as applied to
public restaurants are unlawfully broad, and that
union solicitation by nonemployees in an employ-
er's restaurant, if conducted in a manner consistent
with the purpose of the restaurant, cannot be so
proscribed." Thus, unlike the situation where non-
employee union organizers seek access to "private"
or other' 2 areas in which an employer may gener-
reasonable means of communicating its organization message to the em-
ployees exist or that the employer's access rules discriminate against
union solicitation." (Emphasis supplied.) Furthermore, if one were to
accept out colleagues' view, an employer who violates the Act by initiat-
ing strict enforcement of its no-solicitation rule upon commencement of
an organizing campaign would be free to continue such a policy, whose
only purpose was to thwart organizing activity. Contrary to our dissent-
ing colleagues, we do not view our remedy as a penalty but rather a
return to the situation preceding the unlawful conduct since, in effect, we
merely require that the Union be permitted to solicit to the same extent
as the numerous other persons who were permitted to do so prior to the
advent of the organizing campaign.
' Our colleagues' assertion that access to the parking lots was sufficient
for the Union to identify and communicate with employees coming to
work is without merit. The Adminstrative Law Judge found that Re-
spondents' employees were not required to wear any identifying clothing
or badges to and from work. He also found that, although there were
two specially designated areas for employee parking, those areas were
not restricted to employees and, more important, in practice the employ-
ees parked elsewhere as well. Thus, we agree that it was difficult to dis-
tinguish Woolco employees from employees of numerous other stores in
the shopping center or, for that matter, from customers of the mall, until
they approached the entrances to the Woolco store itself. Accordingly,
the Administrative Law Judge correctly found that access to the
sidewalk adjacent to the store was necessary in order to enable organiz-
ers to identify Respondents' employees.
o1 In adopting the Administrative Law Judge's conclusion that Re-
spondents violated Sec. 8(aXl) by enforcing the ban on solicitation by
nonemployees in a discriminatory manner, we do not rely on the fact that
on numerous occasions Respondent Ameron permitted nonemployee tool
salesmen to solicit sales on its premises. See Rochester General Hospital,
234 NLRB 253, 259 (1978).
' See, e.g., Montgomery Ward & Company, Inc, 256 NLRB 800
(1981).
"s We note that an employer may generally prohibit solicitation on its
selling floor areas and solicitation of its restaurant employees within the
restaurant. See, e.g., Marshall Field 4 Company, 98 NLRB 88 (1952),
modified on other grounds and enfd. 200 F.2d 375 (7th Cir. 1952); see
ally prohibit nonemployee solicitation, here the
Babcock & Wilcox criteria need not be met, since
nonemployees cannot in any event lawfully be
barred from patronizing the restaurant as general
members of the public. Accordingly, Respondents'
rule prohibiting solicitation by nonemployees on
the entire premises is unlawfully broad, regardless
of whether, under Babcock & Wilcox, the Union in
this case had other available channels of communi-
cation sufficient to enable it to reach Respondent's
employees with its message. 13
Similarly, we find inappropriate that part of the
recommended Order which affirmatively provides
for nonemployee access to the "Harvest House"
restaurants. Such an affirmative Order is an ex-
traordinary remedy provided in cases where the
Babcock & Wilcox criteria have been satisfied and,
accordingly, nonemployee access to areas which
ordinarily could be lawfully posted is granted by
the Board "to the extent needed to permit commu-
nication of information on the right to organize."' 4
Since we find that Respondents cannot in any
event lawfully prohibit union organizers from pa-
tronizing their restaurants and meeting with its off-
duty, nonrestaurant employees, it is unnecessary to
provide an affirmative order under Babcock &
Wilcox granting access to the restaurants. Accord-
ingly, we conclude that the Administrative Law
Judge's recommended Order requiring Respond-
ents to cease and desist from maintaining and en-
forcing their nonemployee no-solicitation rule and
requiring Respondents to rescind such rule is suffi-
cient to remedy the violation with respect to the
restaurants. 1 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
Ameron Automotive Centers, a Division of the
Kelly-Springfield Tire Co., St. Louis, Missouri, and
F. W. Woolworth Company, d/b/a Woolco Divi-
sion, New York, New York, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining in effect, announcing, asserting,
enforcing, publishing, displaying, disseminating,
communicating, or threatening any total ban on
also Montgomery Ward & Company. Inc, supra,' Montgomery Ward & Ca,
Incorporated, 162. NLRB 369 (1966).
"' See Montgomery Ward & Company, Inc., 256 NLRB at 801.
" 351 U.S. at 112.
s See, e.g., Montgomery Ward a Company. Inc, sipra. Thus, it is un-
necessary for the Board to determine whether, under the balancing test
of Babcock & Wilcox, access to the restaurants is necessary for the em-
ployees to be able to receive information on their right to organize.
512
AMERON AUTOMOTIVE CENTERS
lawful organizational solicitation under the Act by
their employees on Respondents' premises.
(b) Discriminatorily applying or enforcing,
against employees or nonemployee union repre-
sentatives, any rule forbidding solicitation on Re-
spondents' premises.
(c) Maintaining and enforcing "Woolco Policy
Number 3G" pertaining to soliciting or any other
policy, rule, regulation, or requirement totally for-
bidding solicitation by any nonemployee at all
times and on all parts and portions of Respondents'
premises.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the Na-
tional Labor Relations Act.
2. Take the following affirmative actions neces-
sary to effectuate the policies of the Act:
(a) Rescind and annul any and all prohibitions of
lawful organizational solicitation under the Act by
Respondents' employees on Respondents' premises.
(b) Rescind and annul "Woolco Policy Number
3G" pertaining to soliciting by nonemployees or
outside persons.
(c) Permit employees to engage in orderly solici-
tation on behalf of a union or unions during non-
working time, on all portions of their premises
except sales floors and automotive service shops
while they are open to customers.
(d) Permit nonemployees, including union repre-
sentatives, to engage in orderly organizational so-
licitation of Respondents' employees, lawful under
the Act, on sidewalks and parking areas.
(e) Post at their store and automotive shop prem-
ises in Rocky Point, Patchogue, Bridgehampton,
Riverhead, and Lake Ronkonkoma, Long Island,
New York, copies of the attached notice marked
"Appendix."' 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29,
after being duly signed by Respondents' authorized
representatives, shall be posted by them immediate-
ly upon receipt thereof, and be maintained by em-
ployees for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps the Respondents have taken to
comply herewith.
"1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
CHAIRMAN VAN DE WATER and MEMBER
HUNTER, dissenting in part:
We agree with our colleagues that Respondents
violated Section 8(a)(1) of the Act by publishing an
unlawfully broad no-solicitation rule applicable to
its employees, by publishing an overly broad no-so-
licitation rule applicable to nonemployees,17 and
by enforcing its ban on nonemployee solicitation in
a discriminatory manner. Our paths part, however,
when our colleagues further find that Respondents,
by refusing access to the sidewalk in front of their
building to nonemployee union organizers, addi-
tionally violated Section 8(a)(1) on the ground that
such conduct denied the employees their Section 7
right to receive information on organization. In our
opinion, applying the criteria set forth by the Su-
preme Court in N.L.R.B. v. Babcock & Wilcox
Co.,'8 the evidence in this case is insufficient to
support the conclusion that the employees involved
herein are beyond the reach of reasonable union ef-
forts to communicate with them through other,
more customary channels.
In Babcock & Wilcox, the Supreme Court held
that "an employer may validly post his property
against nonemployee distribution of union literature
if reasonable efforts by the union through other
available methods of communication will enable it
to reach the employees with its message."'9 How-
ever, in describing the circumstances under which
this right to prohibit nonemployee solicitation must
give way in some measure to the Section 7 right of
employees to receive the union's message, the
Court stated that:
[I]f the location of a plant and the living quar-
ters of the employees place the employees
beyond the reach of reasonable union efforts
to communicate with them, the employer must
II We agree with our colleagues that Respondents may not summarily
prohibit nonemployee union organizers from patronizing the Harvest
House restaurant and, as a corrollary, meeting with off-duty. nonrestaur-
ant employees similarly patronizing the restaurant. We would note, how-
ever, that a union organizer's right to speak with such employees has
been limited to solicitation "only as an incident to normal use of such
facilities." Marshall Field & Company, 98 NLRB 88, 94 (1952). See also
Montgomery Ward d Company. Inc. 256 NLRB 800 (1981). Such solicita-
tion does not include moving from table to table to solicit off-duty em-
ployees. See Marshall Field. supra. Accordingly, solicitation by nonem-
ployees would by necessity be effectively limited to prearranged meetings
during breaks or mealtime provided, of course, that, as here, the employ-
er ordinarily permits its off-duty store employees to take their meals or
breaks at the restaurant on its premises. To hold otherwise would permit
an employer to discriminate against customers and off-duty employees
solely on the basis of the content of their conversations while eating. To
this extent we agree with our colleagues that the right of nonemployee
union organizers to patronize Respondents' public restaurant does not
turn on whether alternative means of communication with employees are
available to the Union.
Is 351 U.S. 105 (1956).
'1 Id. at 112.
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allow the union to approach his employees on
his property. 20
Mindful of this language, the Board has in the
past considered the accessibility of employees'
homes to be an important factor in determining
whether a union must be permitted to enter private
property for purposes of organizational solicitation.
For example, where the employees' living quarters
are on the employer's premises and there is virtual-
ly no other way for the union to reach the employ-
ees, the Board has found it unlawful for the em-
ployer to prohibit union solicitation by nonem-
ployees on its premises. 21 Similarly, when the em-
ployees' residences are so widely dispersed that
home contact is effectively precluded, the Board
has concluded that union access to the employer's
premises cannot be denied.2 2 In these cases, the de-
termination of whether "reasonable efforts by the
union through other available channels of commu-
nication will enable it to reach the employees with
its message" 23 has in large measure been predicat-
ed upon the accessibility of employees' homes to
union organizers.
In the present case, the record is devoid of any
evidence as to where Respondents' employees
reside and, consequently, whether they are accessi-
ble to union organizers. The only witness who tes-
tified at all concerning this issue stated that he had
no personal knowledge as to where any of the ap-
proximately 70 Woolco employees at the Rocky
Point store lived.2 4 The Administrative Law Judge
O0 Id. at 113 (emphasis supplied).
2s See, e.g., S & H Grossinger's Inc., 156 NLRB 233 (1965), enfd. 372
F.2d 26 (2d Cir. 1967) (as many as 65 percent of the employees residing
on the employer's premises). In the context of a representation election
campaign, see Husky Oil NPR Operations, Inc., 245 NLRB 353 (1979),
enfd. 669 F.2d 643 (10th Cir. 1982); Alaska Barite Company, 197 NLRB
1023 (1972), enfd. 83 LRRM 2992, 71 LC¶ 13, 878 (9th Cir.), cert. denied
414 U.S. 1025 (1973); Sioux City and New Orleans Barge Lines. Inc., 193
NLRB 382 (1971), enforcement denied 472 F.2d 753 (8th Cir. 1973).
5a See Belcher Towing Company, 238 NLRB 446 (1978), enforcement
denied 614 F.2d 88 (5th Cir. 1980) (employees' residences scatttered over
40 different towns hundreds of miles apart). In the election context, see
Sioux City and New Orleans Barge Lines. Inc., 193 NLRB 382 (1971) (em-
ployees residing in 15 different States).
i3 351 U.S. at 112.
'4 William Koenig, the Union's president, testified as follows:
Q. (By the General Counsel) Mr. Koenig, have you ever obtained
knowledge where these 70 employees at the Woolco Rocky Point
store live?
A. No, I don't know their home addresses, no.
Q. Do you have any idea where they may be living?
A. I would-
Q. These particular employees at the Woolco Rocky Point store?
A. I think I would judge from the rate of pay that they would be
living in the Eastern Suffolk area, because of the low pay an the cost
of comutation [sic] it wouldn't seem reasonable that they would be
living outside the Eastern Suffolk area.
Q. Other than your conclusion based on the low wages, do you
have any knowledge where these particular 70 Woolco Rocky Point
employees live?
A. No.
We note here that the parties stipulated that all five of Respond-
ent's business permises and the shopping center configurations are
found that the shopping centers in question are lo-
cated in and service "dispersed suburban or semi-
rural communities," concluding from this fact alone
that the Union was unable to reach Respondents'
employees at home "because of their presumably
relatively distant geographic commuting dispersal
from Respondents' locations." We were not aware
that, where an employer's place of business is lo-
cated in a "suburban or semirural" area, the Board
will presume that the employer's employees live in
distant geographic areas and from that presumption
alone will infer that they are beyond the reach of
reasonable union efforts to communicate with them
at their residences. On the contrary, the Board has
refused to give controlling weight to the demo-
graphic makeup of the area surrounding the em-
ployees' workplace. In Monogram Models, Inc.,2 5
the General Counsel contended that alternative
methods of communication were not available to
the union and were not feasible in any event be-
cause respondent's employees lived in the Chicago
metropolitan area, which allegedly made them just
as inaccessible as employees who live on their em-
ployer's premises. The Board rejected this general-
ization, stating:
We do not believe it wise or proper to adopt a "big
city rule" and a different "small town rule" in ap-
plying Babcock and Wilcox, or to attempt to deter-
mine how big a city must be to justify the proposed
differing application. Concededly, it may be more
convenient and less expensive for the Union to use
the Respondent's property for the purpose of orga-
nizing the employees here involved. That was also
true under the facts of Babcock and Wilcox. But the
test established there was not one of relative con-
venience, but rather whether "the location of a
plant and the living quarters of the employees place
the employees beyond the reach of reasonable union
efforts to communicate with them .... " The facts
here do not, in our view, justify such a conclusion,
and we are unwilling to make that conclusion solely
upon the basis of the plant's location in a metropoli-
tan area. 2 6
Here, however, our colleagues have in effect sub
silentio adopted a "suburban" or "rural" rule,
which presumes that employees working in a rural
area live such great distances from their workplace
and from each other that they are necessarily
beyond the reach of reasonable efforts to communi-
"substantially similar." However, there is no indication in the record
as to where the employees working at Respondent's other four loca-
tionis reside in relation to the stores and each other. The Administra-
tive Law Judge apparently presumed that they, too, live in "relative-
ly distant" and dispersed locations, although again there is no evi-
dence to support such a finding.
25 192 NLRB 705 (1971).
"2 Id. at 706.
514
AMERON AUTOMOTIVE CENTERS
cate with them at home.2 7 We cannot accept such
a principle.
We are not unmindful of the fact that a union
must know the names and addresses of employees
in order to be able to contact them at home. How-
ever, here again the evidence is insufficient to war-
rant a finding that the Union, through reasonable
efforts, would have been unable to ascertain the
names and addresses of the Woolco employees in
order to facilitate contact with them off the shop-
ping center premises. In this regard, Union Presi-
dent Koenig testified that he was unable to ascer-
tain the names and addresses of nearly all of the
Woolco employees, with the exception of the four
or five who signed authorization cards. He testified
that the Union asked Vincent Stasio, an employee
who worked in the Ameron automotive service de-
partment located in a separate part of the building,
to obtain such information. Since Stasio ostensibly
did not know many of the Woolco employees and
did not have ready access to employee timecards,
etc., Koenig testified that Stasio's efforts were un-
successful. However, Koenig also testified, incredi-
bly in our view, that the employees who signed au-
thorization cards were unable to provide even the
names of fellow employees, individuals who pre-
sumably worked with them regularly.2 8 As to
those employees who attended the two off-prem-
ises union meetings, there is no evidence that the
Union asked them for this information. On the
record before us, we do not think that the Union's
efforts in this regard were reasonable,2 9 and we
find it hard to believe that reasonable efforts would
not have yielded a substantial number of names and
addresses. 30
'" The fact that the employees may not all live in the same or neigh-
boring towns is a far cry from the situation in several of the cases in
which the Board has found employees' homes inaccessible. In Belcher
Towing Company, 238 NLRB 446, (1978) the employees lived in over 40
different towns spread throughout the State of Florida. In Sioux City &
New Orleans Barge Lines, Inc., 193 NLRB 282 (1971), employees resided
in 15 different States. Although such extreme examples are not the only
circumstances in which we would find employees' homes beyond the
reach of union organizers, we do not accept the view that, if an employ-
er's employees live more than a few miles apart, the union cannot be ex-
pected to contact them at home. We suspect that there are very few busi-
nesses whose employees live in such proximity today.
I" He further testified that these employees told him they were afraid
to "attempt to gather names and addresses because of fear of reprisals."
aO It may not always be necessary to show that the union in fact tried
a particular avenue of communication in order to prove that such an ap-
proach is futile. See Hutzler Brothers Company, 241 NLRB 914 (1979), en-
forcement denied 630 F.2d 1012 (4th Cir. 1980); but see Rochester General
Hospital, 234 NLRB 253, 260 (1978). However, we note that in many in-
stances it is difficult to infer from a feeble attempt at a particular method
of communication that a greater effort would have been ineffective.
'0 We do not think it necessary that each and every employee be di-
rectly within the reach of outside organizers or else an employer is guilty
of an 8(aXl) violation for prohibiting outsiders from soliciting on its
property. However, the issue of whether a certain percentage of an em-
ployer's work force must be directly accessible is not before us in this
case. But see The Falk Corporation, 192 NLRB 716, 723 (1971).
Neither was the avenue of off-premises meetings
with employees sufficiently shown to be unavail-
able to the Union. As noted above, the Union held
two major organizational meetings off the shopping
center premises. Koenig testified that the first
meeting was attended by about 15 percent of the
employees, but the second meeting generated only
5-percent attendance. The Administrative Law
Judge found that off-premises meetings were not a
viable channel of communication because of "the
wide geographical dispersal of the employees, the
necessity to hold such meetings early in the morn-
ing before store opening time or late at night after
store closing time, the high cost of and national
policy to economize upon use of gasoline, and the
demonstrated inefficacy of such attempts." In our
opinion, the Administrative Law Judge's rationale
is deficient in several important respects. First, it is
irrelevant that these meetings would necessarily
have to be held before or after work. The Board
has stated that the test established in Babcock &
Wilcox is "not one of relative convenience."s ' The
mere fact that it may be inconvenient for employ-
ees to meet with the Union before or after work
does not mean they are beyond the reach of rea-
sonable efforts to communicate with them in this
manner. Second, as noted above, there is no evi-
dence that the employees in fact live in a widely
dispersed geographical area. Thus, even if the cost
of gasoline and Federal energy policy can be con-
sidered relevant considerations in this case, which
we doubt, no showing of prohibitive expense to
employees or the Union has been made. Finally,
the Administrative Law Judge's reliance on the
fact that the meetings the Union did not hold were
poorly attended is misplaced, since there is no indi-
cation in the record that the distance and time
problems alluded to were actually responsible for
the sparse turnout.3 2 In our opinion, the mere fact
that the meetings were poorly attended does not
necessarily mean that such an avenue of communi-
cation is "unavailable" under Babcock & Wilcox.
Without more, it might just as easily be true that
the employees here were not interested in organiz-
ing under the auspices of this Union, especially
since the number of participants decreased after the
first meeting.
Accordingly, we would dismiss this part of the
complaint since there is no evidence that the em-
ployees live in inaccessible areas, that the Union
through reasonable efforts could not have obtained
3S Monogram ModeL Inc, 192 NLRB 705. 706 (1971).
3' We note that the Union ascribed the lack of attendance and discon-
tinuance of these meetings to reasons other than those cited by the Ad-
ministrative Law Judge. Koenig testified that "the problem was that
people were afraid to attend meetings."
515
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the names and addresses of employees, or that
union meetings outside the shopping center proper-
ty were not an available method of communica-
tion.3 3 Under these circumstances, the General
Counsel has not proven that Respondents' employ-
ees are beyond the reach of reasonable efforts to
contact them outside the shopping center.
Moreover, even assuming that the evidence was
sufficient to warrant a finding that the employees
could not be reached outside the shopping center
premises, we would not find a violation of Section
8(a)(1) here, since the evidence also shows that the
employees in any event were not denied the right
to receive information concerning their right to or-
ganize. As noted by our colleagues, Babcock &
Wilcox teaches that, when employees are indeed
beyond the reach of union efforts to communicate
with them off the employer's premises, the employ-
er's right to exclude nonemployees must "yield to
the extent needed to permit communication of in-
formation on the right to organize" 34 and, as noted
by the Supreme Court in Central Hardware Co. v.
N.L.R.B., "the 'yielding' of property rights [re-
quired] is both temporary and minimal."35 The
Union here was able to distribute its literature on
the shopping center premises without interference
as long as it confined such distribution to the park-
ing lot in front of Respondents' store. Since we be-
lieve, contrary to the Adminstrative Law Judge,
that the evidence supports a finding that the Union
was sufficiently able to identify Respondents' em-
ployees and communicate with them in this
manner, we find that reasonable access to the shop-
ping center property was in fact made available to
the Union. Therefore, Respondents did not violate
the Act by prohibiting distribution on the
sidewalks, since this proscription did not interfere
with the employees' Section 7 rights. For this addi-
tional reason, an affirmative order granting access
to the sidewalks is unnecessary and inappropriate.
With respect to the Union's ability to identify
employees, contrary to the Administrative Law
Judge's conclusion, the record indicates that the
Union was able in most instances to identify and
distinguish Respondents' employees from its cus-
tomers. Although some of the Woolco store em-
ployees are part-time employees and report to
work at or around 5:30 p.m., most of Respondents'
employees arrive for work before the store opens
at 9:30 a.m. The majority of these employees arrive
about 10 minutes before opening and the remain-
sa We do, however, agree with the Administrative Law Judge and our
colleagues that communication through billboards, newspapers, radio,
television, and the like was unreasonably burdensome and of questionable
effect.
S4 351 U.S. at 112.
"s 407 U.S. 539, 545 (1972).
der, mainly office employees, report between one-
half hour and 45 minutes before opening. Although
the entrance is locked prior to the store opening,
Respondents' security guard opens it so that em-
ployees may enter. At closing, the doors are
locked, the lights dimmed, and customers are asked
to leave. All employees, including the part-time
employees reporting at 5:30 p.m., remain in the
store for some minutes until all customers have left.
The employees then leave through the main cus-
tomer entrance. The union organizers themselves
testified that they were able to identify the employ-
ees. Ronald Shannon, who passed out literature on
October 7, 1979, testified that he and his compan-
ions began passing out this literature at or about
7:45 or 8 a.m. to people entering the store. He testi-
fied that the union organizers "would approach
them and give them our literature right in the park-
ing lot." Shannon further testified that he was able
to identify these individuals as Respondents' em-
ployees "[b]ecause they were there early, and some
of them had what looked like Woolco smocks." Fi-
nally, Shannon testified that, after the police re-
quested the organizers to confine their distribution
of literature to the parking areas, and as customers
began to arrive, "we handed out literature to the
customers, as well as to the employees."3 6 Union
President Koenig testified that some of the employ-
ees were distinguishable since they "wore a uni-
form [smock]" with "Woolco" on it. He futher
stated that, since the store did not open until 9:30
a.m., "I must assume that the earlier people going
in were employees."
From the foregoing testimony by the General
Counsel's own witnesses, it is clear that many of
Respondents' employees could be, and were in fact,
identified by the union organizers and were offered
literature. Under these circumstances, that the
Union may have abandoned its distribution cam-
paign after only two attempts and without reaching
a substantial number of the employees is irrele-
vant.3 7 What is important is the fact that, to the
extent that Respondents acquiesced in the Union's
solicitation and distribution of literature on the
shopping center property, an accommodation of
3e It appears that, despite its asserted concern over wasting literature
on nonemployees, the Union intended to convey its message to customers
also. Union President Koenig at one point in his testimony made refer-
ence to the fact that organizer Michael Lorenzo was handing out litera-
ture to individuals disembarking from a bus from "the Senior Citizen
Housing Project."
" The evidence indicates that distribution of literature was abandoned
for reasons other than any inability to identify employees. Koenig testi-
fied that, in his opinion, this organizational method was of "limited
value" and that "the whole point of, or half of the point of handbilling is
to show the people that we could be there to hand out these handbills
and there is nothing to be afraid of." Koenig also testified that, with its
limited attempts at contacting employees, the Union reached 25 to 30
percent of Respondents' work force.
516
AMERON AUTOMOTIVE CENTERS
the conflicting rights referred to in Babcock &
Wilcox was reached.38 Thus, a finding that Re-
spondents violated Section 8(aX1), and an order re-
quiring Respondents to permit distribution in other
areas, cannot legitimately be justified on the
ground that the Union will otherwise be unable to
reach employees with its message and is, therefore,
inappropriate. 39
Recently, the Supreme Court had occasion in an-
other context to comment on the balancing of the
right of employees to receive the union message
against the employer's or property owner's right to
prohibit nonemployee solicitation on its premises.
In Sears, Roebuck & Co. v. San Diego County Dis-
trict Council of Carpenters,40 the Court stated:
While Babcock indicates that an employer may
not always bar nonemployee union organizers
from his property, his right to do so remains
the general rule. To gain access, the union has
the burden of showing that no other reason-
able means of communicating its organization-
al message to the employees exists or that the
employer's access rules discriminate against
union solicitation. That the burden imposed on
the union is a heavy one is evidenced by the
fact that the balance struck by the Board and
the courts under the Babcock accommodation
's In May Department Store Company d/b/a Meier d Frank Ca, 198
NLRB 491 (1972), respondent did not interfere with leafleting by nonem-
ployees at its employee entrance on the shopping center property. The
Board, in reversing the Trial Examiner, dismissed the complaint, stating
that "we do not believe there exist any extraordinary circumstances
which necessitate additional union access to the Respondent's facilities
.... " (Emphasis supplied.) The Administrative Law Judge distin-
guished this case on the ground that, here, the employees do not have
their own entrance and thus cannot be identified. Since we do not agree
with his finding concerning identification, any material distinction be-
tween May Department Store Company and the present case vanishes.
3" As noted above, we agree with our colleagues that Respondents
have applied a nonemployee no-solicitation rule in a discriminatory
manner. However, we do not believe that this finding alone is sufficient
to warrant an order affirmatively requiring that Respondents permit non-
employee union solicitation on its sidewalk or anywhere else. In Babcock
& Wilcox, 351 U.S. at 112, the Court held that an employer's property
rights must "yield to the extent needed to permit communication of infor-
mation on the right to organize." (Emphasis supplied.) In our view, this
language and the context in which Babcock & Wilcox was decided indi-
cate that property rights need not yield to Sec. 7 rights in these caes
absent a showing of necessity; namely, that no reasonable alternative
method for communicating with employees exists. A finding that an em-
ployer has discriminated with respect to those whom it has granted
access to its property does not address the issue of whether access is
needed and, therefore, cannot justify the granting of such ccess. More-
over, such a remedy in effect creates a right which did not initially exist,
thereby punishing the employer for past transgressions rather than reme-
dying the unfair labor practice. Accordingly, we believe that, in order to
remedy the discriminatory enforcement of its nonemployee no-solicitation
rule, Respondents should be required only to cease and desist from apply-
ing the rule in a discriminatory manner, thereby permitting union access
to the same extent, if any, that nonunion solicitation is permitted. In this
limited respect, we agree with the Order mandated by our colleagues.
4o 436 U.S. 180 (1978).
principle has rarely been in favor of trespas-
sory organizational activity. 41
The Court also noted that the right to access has
generally been denied "except in cases involving
unique obstacles to non-trespassory methods of
communication with the employees," 4 2 and review
of the Board decisions since Babcock & Wilcox sup-
ports the Court's assessment.43 We fear, however,
that the Board has recently begun to alter long-
standing case law which has presumed to leave
unions and employees to their own devices with re-
spect to organization absent unique or extraordi-
nary circumstances warranting special treatment.
We are unaware of any claim that the conventional
methods of communication utilized successfully by
employees and unions in the past are, as a general
rule, no longer viable today. Yet our colleagues, by
diluting or ignoring the appropriate standard of
proof while paying little more than lip service to
the criteria applied in previous cases, 4 4 have effec-
tively paved the way for claims that an employer
has violated Section 8(a)(1) any time conventional
methods of organization are inconvenient and even
when, as here, such methods are abandoned for
reasons admittedly unrelated to the claim that these
avenues are insufficient to permit the union to
reach employees.
We are as concerned as our colleagues and the
Administrative Law Judge that suburban shopping
centers not "assume the character of Act-free en-
claves" insulating employers and preventing em-
ployees from receiving important information on
their Section 7 right to organize. We also recognize
that, in attempting to balance the legitimate rights
of both the employer and its employees, reasonable
minds may differ as to the weight to be accorded
the numerous factors which must necessarily be
considered. Nevertheless, we believe that the cir-
cumstances herein, far from presenting any argu-
ably "unique obstacles to non-trespassory methods
of communication," 4 5 merely evidence logistical
41 Id. at 205.
4s Id. at 205-206, fn. 41, citing N.LR.R v. S d H Grossinger's Inc., 372
F.2d 26 (2d Cir. 1967), and N.LR.R v. Lake Superior Lumber Corpora-
tion, 167 F.2d 147 (6th Cir. 1948), enfg. 70 NLRB 178(1946).
4" Compare cases cited in fnt 5 and 6, upmra, with Rochester General
Hospital, 234 NLRB 253 (1978); Dexter Thread Mils Inc. d/b/a Lee
Wards, 199 NLRB 543 (1972); May Department Store Company, d/b/a
Meier d Frank Ca, 198 NLRB 491 (1972); The Falk Corporation, 192
NLRB 716 (1971); Monogram Models Inc, 192 NLRB 705 (1971). But
see Scholle Chemical Corporation, et aL, 192 NLRB 724 (1971), enfd. 82
LRRM 2410, 70 LC 113,341 (7th Cir. 1972).
4' See Hutzler Brothers Company, 630 F.2d 1012 (4th Cir. 1980), where
the court denied enforcement because of the absence of evidence in sup-
port of the Board's finding that alternative methods of communication
were unvailable to the union in that case.
4s Sear. Roebuck & Co. v. San Diego County District Council of Car-
penters, 436 U.S. at 205-206, fn. 41; see also Giant Food Markets Inc. v.
N.LR.B., 633 F.2d 18 (6th Cir. 1980).
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
problems common to many if not all organization
campaigns, whether the employer involved does
business at a relatively small, unenclosed, shopping
center,4 6 a factory,4 7 a hospital complex, or similar
locations.4 8 In reaching the result here on the scant
evidence presented, we fear that our colleagues
have, at the very least, paved the way for a broad
"shopping center exception" to the general rule
that an employer may prohibit nonemployee union
solicitation on private property. We, therefore, dis-
sent.
46 We need not express any opinion aa to whether a different result
herein would obtain if Respondents' premises were located in an enclosed
"mall" facility.
47 See, e.g., Dexter Thread Mills d/bl/a Lee Wards, 199 NLRB 543
(1972); Monogram Models Inc., 192 NLRB 705 (1971).
48 Rochester General Hospital, 234 NLRB 253.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT maintain in effect, announce,
assert, enforce, publish, display, disseminate,
communicate, or threaten any total ban on
lawful organizational solicitation under the
Act by our employees on our premises.
WE WILL NOT discriminatorily apply or en-
force, against employees or nonemployee
union representatives, any rule forbidding so-
licitation on our premises.
WE WILL NOT maintain in effect and enforce
"Woolco Policy Number 3G" pertaining to so-
liciting or any other policy, rule, regulation, or
requirement totally forbidding solicitation by
any nonemployee at all times and on all parts
and portions of our premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in Section 7
of the National Labor Relations Act.
WE WILL rescind and annul any and all pro-
hibitions of lawful organizational solicitation
under the Act by our employees on our prem-
ises.
WE WILL rescind and annul "Woolco Policy
Number 3G" pertaining to soliciting by non-
employees or outside persons.
WE WILL permit our employees to engage in
orderly solicitation on behalf of a union or
unions during nonworking time on all portions
of our premises except sales floors and auto-
motive services shops while they are open to
customers.
WE WILL permit nonemployees, including
union representatives, to engage in orderly or-
ganizational solicitation of our employees,
lawful under the Act, on our sidewalks and
parking areas.
AMERON AUTOMOTIVE CENTERS, A
DIVISION OF KELLY-SPRINGFIELD
TIRE Co.; F.W. WOOLWORTH COM-
PANY D/B/A WOOLCO DIVISION
DECISION
PRELIMINARY STATEMENT; ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge:
This consolidated proceeding' under the National Labor
Relations Act, as amended, 29 U.S.C. § 151, et seq. (Act),
was heard before me in Hauppauge and Brooklyn, New
York, on 14 hearing days between April 18 and August
16, 1979, with all parties participating throughout by
counsel or other representative and afforded full oppor-
tunity to present evidence, arguments, proposed findings
and conclusions, and briefs, which, after unopposed time
extensions on applications of counsel, were received
from the General Counsel and counsel for Respondents-
Employers on September 28, 1979. 2 Record and briefs
have been carefully considered.
Cases 29-CA-6676-1 and 29-CA-6676-2: order of consolidation and
complaint dated November 30, 1978, growing out of charges filed on
September 20, 1978; Case 29-CA-6736: complaint dated December 29,
growing out of charge filed on October 18, 1978; Case 29-CA-6823 and
29-CA-6914: order of consolidation and complaint dated February 28,
1979, growing out of charges filed on November 30, 1978, and January 8,
1979; Cases 29-CA-7015 and 29-CA-7053: order of consolidation and
complaint dated April 13, growing out of charges filed on February 16
and March 2. 1979; Case 29-RC-4321: Regional Director's March 23,
1979, supplemental decision on objections, order consolidating cases, and
referring for hearing, and notice of hearing, arising out of August 28,
1978, petition, subsequent decision and direction of election, four Novem-
ber 14, 1978, elections, and November 21, 1978, objections by petitioner
Union to conduct affecting election results.
' A subsequent letter, dated October I and received on October 11,
1979, commenting upon the General Counsel's brief, was received from
Continued
518
AMERON AUTOMOTIVE CENTERS
In view of the settlement among the parties of all
other issues on June 22, 1979, and my order on that date
approving the same and severing the settled issues,3 the
sole remaining issue for determination here is the propri-
ety of Respondents' no-solicitation rules and their appli-
cation, which are alleged to have been violative of Sec-
tion 8(aXl) of the Act.
Upon the entire record and my observation of the tes-
timonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent Ameron Automotive
Centers, a Division of the Kelly-Springfield Tire Co.
(Ameron), has been and is a Missouri corporation, with
principal office and place of business in St. Louis, Mis-
souri, and other places of business throughout the United
States, including Rocky Point, Patchogue, Bridgehamp-
ton, Riverhead, and Lake Ronkonkoma, Long Island,
New York, engaged in the sale and distribution of auto-
motive equipment and supplies and related products, and
in automotive repairs. During the 12-month period im-
mediately antedating issuance of each of the complaints
herein, representative periods, said Respondent has, in
the course and conduct of its said business, derived
therefrom gross sales revenues exceeding $500,000.
During the same period, said Respondent has also, in the
course and conduct of its said business, purchased and
received delivery of other goods and materials valued in
excess of $50,000, directly in interstate commerce from
States of the United States other than those where Re-
spondent's receiving places of business are respectively
located.
At all material times, Respondent F. W. Woolworth
Company, doing business as Woolco Division (Woolco),
has been and is a New York corporation, with principal
office and place of business in the county, city, and State
of New York, and other places of business throughout
the United States, including Rocky Point, Patchogue,
Bridgehampton, Riverhead, and Lake Ronkonkoma,
Long Island, New York, engaged in the retail depart-
ment store business and in sale and distribution of mer-
chandise offered for sale therein. During the 12-month
period immediately antedating issuance of each of the
complaints herein, representative periods, said Respond-
ent has, in the course and conduct of its said business,
derived therefrom gross sales revenues exceeding
$500,000. During the same period, said Respondent has
also, in the course and conduct of its said business, pur-
chased and received delivery of merchandise, goods, and
materials valued in excess of SS50,000, directly in inter-
state commerce from States of the United States other
Respondents-Employers. Its contents having been noted, that letter is
being filed with the briefs and record.
' The order and settlement stipulation of June 22, 1979, are incorporat-
ed into the record as Jt. Eah. I of the parties. A June 22 letter from
counsel for the General Counsel to Paul R. Kreshon and a July 12 letter
(with attached signed stipulation) from counsel for the General Counsel
to me, are incorporated into the record as Judge's Exhs. 2 and 3.
than those where said Respondent's receiving places of
business are respectively located.
At all material times, Respondents Ameron and
Woolco have jointly operated the retail automotive de-
partments located in Respondent Woolco's facilities
throughout the United States, including those in Rocky
Point, Patchogue, Bridgehampton, and Riverhead on
Long Island, New York, and have been and are joint em-
ployers of the employees employed in said automotive
departments.
I find that at all material times Respondents Ameron
and Woolco have each been and are employers engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act; and that at all of those times Charging Party-Peti-
tioner Union has been and is a labor organization' as de-
fined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As has been indicated, the sole remaining issue here is
the propriety of Respondents' no-solicitation policies and
practices. These will be addressed following a prelimi-
nary review of the situation and circumstances under
which they were and are being applied.
A. Facts as Found
1. Description of Respondents' premises, the
"Malls" in which located, areas which they serve,
access routes, Respondents' employees' home
locations, and related facts
Since the parties agree5 that Respondents' five afore-
mentioned business premises and their "mall" configura-
tions are "substantially similar," only Respondents'
Rocky Point premises-the specific characteristics of
which were developed in detail at the hearing-need
here be described. It may accordingly, as indicated by
the parties, be assumed that, except to the extent specifi-
cally otherwise pointed out, the description of Rocky
Point holds materially true for Respondents' other four
Long Island locations as well.
Respondents Ameron and Woolco, linked since around
1962 by nationwide agreement under which Woolco li-
censes Ameron to operate automobile accessory and
repair departments in conjunction with and at the same
hours as Woolco's retail sales stores, operate 378 branch
facilities with around 2,600 employees. Under the terms
of the license (G.C. Exh. 75, p. 4, art. 8), Woolco re-
serves the right to direct the manner in which the auto-
motive departments are operated, including the right to
cause the dismissal of any Ameron employee and the
right to promulgate and enforce Woolco rules and regu-
lations (id., art. 9). Respondents' department
stores/automotive centers are located within shopping
"malls" containing other retail establishments. The ap-
4 Although denied in Respondent's answer, I so find based on uncon-
troverted credited testimony of the General Counsel's witness, Koenig, as
well as the Board's certification of Charging Party as a labor organiza-
tion.
8 Resp. br., p. 5; O.C. br., p. 27.
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proximate sizes of the "malls" of which Respondents'
premises here chiefly involved form a part are:
Mall Location
Rocky Point
Patchogue
Bridgehampton
Riverhead
Mall Size (apx. sq. ft.)
871,200 (20 acres)
522,720 (12 acres)
566,280 (13 acres)
958,320 (22 acres)
The foregoing four malls located in, forming part of, or
serving dispersed surburban or semirural (according to
Respondent Woolco's Long Island District Manager Ei-
tapence, "very rural") communities, are unfenced (except
possibly in some rear areas) and approached and left by
way of entrances/exits or accesses/egresses from vehicu-
lar highways or secondary roads; for example, the Rocky
Point mall has a two-lane entrance/exit from/to New
York State Route 25A, as well as two two-lane easterly
access/exit points from/to Rocky Point Road (Resp.
Exh. 22), each open 24 hours per day and each with a
stop sign only for traffic exiting from the mall.6 There is
no sentry or guardhouse or post at any mall access point.
Very few persons, including employees, come to the
mall other than by automobile;' the malls contain large
vehicular parking areas-at Rocky Point, for 1,200 cars
(id.), not only in the central mall but also extending
around the entire perimeter of the buildings, including
sides and rear, and unearmarked for customers of specific
stores or businesses. Approximately 2,000 customers pa-
tronize Respondents' Rocky Point store each weekday;
4,000 each Saturdav and each Sunday; and on holidays
far more.8 Normally, Woolco customer traffic is heaviest
at opening time of the stores (9:30 a.m.; 10 a.m. in Octo-
ber 1978), lunchtime (11:30 a.m.-1:30 p.m.), and after 7
p.m.; Ameron customer/automotive traffic is sporadic
throughout the day and evening.
Respondents' leased building at Rocky Point is 1 of
about 30 buildings or stores and by for the largest single
structure (over 93,000 square feet, about 379 feet long by
250 feet deep, irregular) on that mall. Although it has
two levels, customer sales are restricted to the street
level. The Ameron automotive area (accessories and
shop) is located as a sort of wing at the street level of
the northwesterly corner of the building structure (Resp.
Exh. 22), with its own bay entrance on the north as well
as an interior entrance through the Woolco store. In ad-
dition to that exterior entrance, there are three other cus-
tomer outside entrances to Respondents' Rocky Point
building, all at street level-the main entrance (easterly
side of building, about 260 feet from the Route 25A mall
entrance and about 600 feet from the Rocky Point Road
mall entrance (see Resp. Exh. 22, scale 1":50'), the en-
trance to Woolco's Harvest House public restaurant
(easterly side of building), and the entrance to the
Woolco garden center (northerly side of building). Re-
m Patchogue and Riverhead malls likewise each have three vehicular
accesa/exit points, while Bridgehampton (employing as many as over 100
employees seasonally) has only one (from/to N.Y. S. Route 25, Sunrise
Highway.
Port Jefferson, the nearest railroad station to Rocky Point, is about
10 miles distant.
I Estimates of Respondents' Rocky Point Woolco Assistant General
Manager Zimmerman.
spondents' structure consists basically of the following
segments: by far the largest part, Woolco department-
store retail sales area, including its garden center; the
Woolco public restaurant, known as Harvest House; and
the Ameron automotive accessories and repair shop.
There is a public sidewalk at least at the front of the
building (main entrance and Harvest House restaurant
entrance). 9
In its Rocky Point building (as well as its other loca-
tions), Respondent Woolco operates a public restaurant
(approximately 25 by 28, with tables, booths, and
counter, total capacity 89-99 with waiter/waitress serv-
ice), known as Harvest House, with an exterior entrance
from the front sidewalk and exit through the Woolco
retail sales store, open to public and employees alike. Re-
spondent Woolco's Harvest House restaurant at Rocky
Point generates approximately 10 percent of its profit
there, as an operating department of that store, with its
regular employment and other store policies applicable
there as in all other departments. There is no sign or
notice anywhere in Harvest House (or elsewhere in any
public portion of Respondents' premises) in any way re-
stricting or limiting access, entrance to, or use of that
restaurant, or any activity therein, to or by only custom-
ers, employees, or other persons. In other words, Har-
vest House is a public restaurant ostensibly open to all
members of the public without restriction. There are
other public restaurants, not owned or operated by either
Respondent, within each mall.
Respondents regularly employ a total of 600 to 800
employees at the 510 locations on Long Island which
have been mentioned, with 100 to 130 at each location
(about 119 at Rocky Point), of whom (Rocky Point
Woolco) approximately 80 percent are female. Employ-
ees are not required to wear distinctive uniforms or garb
when entering or leaving the Woolco or Ameron store
or shop, although more than half wear (sometimes under
outercoats) or carry smocks-without distinctive store
name or symbol-entering or leaving, and employees are
required to wear two badges-one with Woolco and the
employee's name (usually only the first name, with a last
initial only) and the other a Woolco promotional
badge-as well as distinctive garb" only while at work
within the store or automotive shop. Most (60-70 per-
cent) employees arrive at the store at or around 9:20
a.m.-about 10 minutes before the 9:30 a.m. store open-
ing time,'2 the remainder (e.g., office employees) one-
half hour to 45 minutes before store opening. Employees
are required to enter and leave through the main (i.e.,
front) entrance to the store; customers may enter or
leave through any entrance/exit. Employees are allowed
I hour for lunch or dinner (45 minutes on Sunday),
which they may take anywhere (on premises in Harvest
House restaurant-at a 10-percent discount, or in em-
ployees' lounge (use limited to employees and only soft
' Patchogue has two customer entrances, and Riverhead and Bridge-
hampton one each, all fronting on public sidewalks.
'0 Including Lake Ronkonkoma.
" Salespersons, a greenish-acquamarine smock; restaurant employees,
a gold skirt with white blouse; mechanics, work trousers with grayish
shirt; manager, dres slacks with shirt and tie.
" In October 1978, store opening time was 10 am.
520
AMERON AUTOMOTIVE CENTERS
drinks vended), or off premises), and a 15-minute break
each 4 hours. (Not all employees have the same hours,
mealtimes, or breaktimes, although the "basic" employee
lunchtime is from noon to I p.m.) Employee cars display
no identifying name, emblem, or mark; and, although
there are two specially designated areas for employee
parking,1' those areas are not restricted to employees,
and in actual practice employees park elsewhere as
well-with no signs forbidding such parking. At 9:20
p.m. a loudspeaker announcement is made that the store
will close in 10 minutes. At 9:30 p.m. a loudspeaker an-
nouncement is made that the store is closed, lights are
dimmed, and customers are requested to leave. The full
complement of employees-around 30 to 45 (60 or 70 on
weekends) or so at Rocky Point, not necessarily the
same as reporting in the morning, and about 30 percent
of whom (employees leaving at night) are part-timers
who reported around 5:30 p.m. and only about 10-15
percent full-timers 4 -leave some minutes later.
2. Respondents' employees' union organizational
solicitational attempts, Respondents'
countermeasures, and related facts
Following earlier expressions of interest in the summer
of 1978 from an Ameron employee, union organizational
activities commenced in mid-August 1978 at all of Re-
spondents' Long Island locations here involved, followed
by later August union request for recognition and
August 28, 1978, petition to the Board for election and
certification on behalf of certain Woolco/Ameron em-
ployees.
The employees' and Union's efforts to organize were
effectively thwarted through the Union's inability to
convey its message to Respondents' employees because
of their presumably relatively distant geographic com-
muting dispersal from Respondents' locations; its exclu-
sion from all portions of Respondents' premises, includ-
ing its public restaurant, employees' lounge, and even
sidewalks; its inability to identify or distinguish employ-
ees from customers entering or leaving Respondents'
building or even the mall; the unfeasibility of stopping
vehicles at mall entrances for employee identification and
membership recruitment purposes; its inability to ascer-
tain employees' names and addresses, and in any event
the unfeasibility as well as undue expense of contacting
individual employees over a widely dispersed commuting
area; and the prohibitive expense as well as other imprac-
ticability of advertising by mass communicational media
(television, radio, and newspapers). When handbilling
was attempted on October 7 on the public sidewalk out-
side of Respondents' Rocky Point premises, Respond-
ents' managers threatened arrest, summoned the police,
and, although they did not actually confiscate the hand-
bills from employees (and others) entering the store, they
at least invited surrender thereof into their hands and dis-
carding into trashcans emplaced for that purpose. Hand-
billing, ineffectively attempted thereupon, but on police
suggestion confined to parking areas, was shortly there-
" I.e., north of Respondents' building, adjacent to Route 25A, and
south of the "Car Wash" northeasterly from Respondents' building.
" About 60 percent of Respondents' Rocky Point employees report
before morning store opening. Regular employees work an 8-hour shift.
after abandoned as fruitless; and in February 1979 again
resulted in the police being summoned and indicating it
should be confined to parking areas. On October 30, Re-
spondents dispatched to the Union a telegram calling at-
tention to its rule forbidding "soliciting . . . by any out-
side person, organization, or organization representative
among the selling and nonselling employees on the prem-
ises of this store at any time" and threatening that viola-
tions thereof would be considered to be "criminal tres-
passing" (Resp. Exh. 1). At the same time, Respondents
issued their own antiunion propaganda, urging their em-
ployees not to join the Union, and calling attention to
store closings because of excessive operational costs, as
well as the alleged compelled obligation of unionized
employees to strike upon penalty of fines (G.C. Exhs. 22
and 23). The Union held organizing meetings, during its
campaign, at a motel about 20 miles distant from Rocky
Point, as well as at a location 10 miles distant, but each
was poorly attended. Organizational literature affixation
to parked vehicles had been abandoned as impracticable
because of the large volume of cars streaming through
and scattered throughout the mall parking areas without
any way of distinguishing employees' from customers'
cars. According to Respondents' Long Island district
manager, Eitapence, Suffolk County on Long Island,
New York-in which Respondents' premises here are lo-
cated-has very little mass transportation, and he esti-
mates that 90 percent of their employees drive to and
from work.
3. Availability of mass communicational media for
union organizational purposes
Television, radio, newspaper, and billboards exist on
Long Island and are, theoretically, purchasable for union
organizational purposes. Uncontradicted testimony by
Union President Koenig establishes that not only has
such newspaper advertising been ineffective, but that its
cost, as well as the cost of other mass communicational
media, is prohibitive:
Medium
Local newspaper
Radio
Television
Cost
$4000 per day for
1/2-page advertisements
$900 per minute (prime
time,
with signed contractual
obligation)
S6,000-S8,000 per minute
(prime
time), plus as much as
$10,000
I" Notwithstanding this uncontroverted testimony of Koenig, the
record otherwise establishes that advertising cost in Pennysaver News, a
Rocky Point publication, in August 1979 was at the rate of S3 or $4 for
15 words of cl/atfled advertising (Reap. Exh. 27, p. 2); and in Suffolk
Life, another local publication, in July 1979 at the rate of $9.90 "regional-
ly" or $17.95 for "4 regions" for the first 10 words of casskd~ "want
ads" (Reap. Exh. 28, p. 16). There is no showing as to the cost of full or
partial page (unclassified) advertising in either of these publications.
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
program production cost. 6
B. Further Findings, Resolution, and Rationale
1. Disparate application of Respondents' no-
solicitation rules
Credited testimony'7 establishes that, notwithstanding
its purportedly total ban on solicitation by "any outside
person, organization or organization's representative"
(Resp. Exh. 16, par. 3G), Respondents have tolerated or
sanctioned, and beyond that their supervisory personnel
have on occasion themselves participated in, such alleg-
edly proscribed solicitation. Thus, while Respondents
take the position that their ban against solicitation by
"any outside person, organization or organization's repre-
sentative" applies to their sidewalks as well as their store
and shop premises, Woolco Rocky Point Assistant Man-
ager Zimmerman concedes that as recently as the
summer of 1978 they permitted the sale of tickets on
their sidewalks by the Knights of Columbus, as well as,
in the fall of 1977, by the fire department and by a veter-
ans' organization, in their parking lots abutting their
sidewalks. Such permitted use of Respondents' sidewalks
is confirmed by Zimmerman's superior, Woolco Rocky
Point Manager Turmel, as well as by Woolco Long
Island District Manager Eitapence. Beyond this, credited
testimony of General Counsel witnesses Stasio and Pack-
ard establishes that up to around Labor Day 1978 maga-
zine sales solicitors regularly visited Ameron Rocky
Point automotive shop premises, vending or soliciting
subscriptions for magazines, openly and in the presence
of Ameron Shop Manager Friedman, who himself was
observed to purchase a subscription. At Respondents'
Ameron Riverhead premises, during the summer of 1978,
book solicitation among employees, in the presence of
Ameron Shop Manager Patton, was also observed by
Packard, a manager-trainee there. Without explanation
neither Friedman nor Patton was produced to dispute
this testimony, which I credit. Furthermore, as credibly
testified to by Stasio and Lada (former Ameron mechan-
ics at Rocky Point), not only were magazines and maga-
zine subscriptions openly vended among Respondents'
personnel in the automotive shop at Rocky Point, but
also, regularly and openly in the presence of supervisory
personnel, clothing, tools (perhaps as often as every
week), and stereo equipment; and although it was not
until January 1979 that Ameron District Manager Anas-
tasio-who prior to then had without demur witnessed
such solicitations and purchases taking place, as well as
Rocky Point Shop Manager Romines-was observed
telling a tool salesman not to solicit, even after that such
"outside person" solicitation, sales, and purchases never-
theless continued within the shop. Moreover,
coffee/sandwich/cigarette solicitation/sales by an "out-
'6 No data were supplied covering the cost of billboard advertising,
although Respondents' surrebuttal witness, Eitapence, testified that the
nearest billboard to Rocky Point is on Route 25 (not, it is to be noted, on
Route 25A, which leads to that store), about a mile away. In the absence
of evidence to the contrary, there is no reason to suppose or assume that
such advertising would be effective, practical, or economically feasible,
for union organizational purposes here.
' General Counsel witnesses Stasio, Packard, and Lada; Respondents'
witnesses Zimmerman, Eitapence, and Turmel.
side person" to Ameron Rocky Point mechanics also
took place in the fall of 1978 or possibly even in January
1979, at times within the shop itself.' s I credit General
Counsel witness Lada's testimony, in preference to
Ameron Rocky Point Shop Manager Romines' indistinct
recollection, that when the driver of the coffee truck
asked Romines if he could come in daily to vend his
wares, Romines replied, "Sure, no problem." Indeed, tes-
tifying as Respondents' witness on surrebuttal, Romines
conceded that when his mechanics asked him if they
could make purchases from the truck (or trucks-accord-
ing to Romines there were two) in the shop, Romines re-
sponded, "I don't see any reason why not," and they did.
Concerning the solicitation and sales of tools to the me-
chanics, although Romines conceded that he had, at least
for some weeks after his advent as Ameron Rocky Point
shop manager in mid-September 1978, permitted solicita-
tion and sales to mechanics there by tool salesmen, until
later instructed by District Manager Anastasio to stop it,
I credit the testimony of the mechanics as above de-
scribed, that they nevertheless thereafter continued
openly to do so. Furthermore, as already indicated, with-
out explanation Rocky Point Ameron Manager Fried-
man, Romines' predecessor to September 1978, was not
produced to dispute in any way the mechanics' testimo-
ny describing practices up to that time.
From the foregoing it is apparent and I find that Re-
spondents' application of their no-solicitation rule was on
a selective basis and not universally as argued (but not
even so testified to by Respondents' own witnesses). It is
well established that disparate application of even an oth-
erwise valid no-solicitation proscription, so as to pre-
clude union organizational solicitation while permitting
or sanctioning other solicitation, violates Section 8(aXl)
of the Act. See Republic Aviation Corp. v. N.LR.B., 324
U.S. 793, 803, fn. 10 (1945); Revere Camera Company v.
N.L.R.B., 304 F.2d 162, 165 (7th Cir. 1962); N.LR.B. v.
Hill & Hill Truck Line, Inc., 266 F.2d 883, 886 (5th Cir.
1959); Rockwell International Corporation, 226 NLRB
870, 875-876 (1976); The Contract Knitter, Inc., 220
NIRB 558, 560 (1975); Mason & Hanger-Silas Mason Co.,
Inc., 167 NLRB 894 (1967), enfd. as modified 405 F.2d 1
(5th Cir. 1968); Wigwam Mills, Inc., 149 NLRB 1601,
1608-10 (1964), enfd. 351 F.2d 591 (7th Cir. 1965);
Bannon Mills, Inc., 146 NLRB 611 (1964); Peyton Packing
Company, Inc., 49 NLRB 828, 843-847 (1943), enfd. 142
F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730
(1944).
It is accordingly determined that Respondents' dispar-
ate application of their no-solicitation rule was and is in
violation of Section 8(aX1) of the Act.
2. Respondents' no-solicitation rules applicable to its
employees (as well as to nonemployees)
a. Written
Credited testimony,' g not directly controverted, estab-
lishes that right after Labor Day 1978, on the heels of
's While Respondents showed that the coffee, etc., vendor also pur-
chased tires from Respondents, this does not diminish the fact that the
"outside" vendor did in fact solicit the mechanics.
' General Counsel witnesses Stasio, Lada, and Packard.
522
AMERON AUTOMOTIVE CENTERS
the inception of the Union organizing campaign at
Rocky Point, a sign2° was mounted on the automotive
service shop desk there, tersely stating "NO SOLICIT-
ING" or "NO SOLICITING ALLOWED." The sign
was maintained there until shortly before the Board-con-
ducted election of November 14, 1978. There was no tes-
timony by any of Respondents' witnesses controverting
this testimony, which I credit.
Inasmuch as this blanket proscription of solicitation, at
least in its application to Respondents' own employees,
was much too broad and sweeping, interdicting as it did
all solicitation by employees, wherever carried out and
even during nonworking time and in noncustomer traf-
ficked areas"2 and while the store and shop were not
open for customer business, it was, under established
law, clearly violative of Section 8(aXl) of the Act and it
is so determined. See Republic Aviation Corporation v.
N.LR.B., supra at 805; Mason & Hanger-Silas Mason Co.
Inc. v. N.LR.B., 405 F.2d 1 (5th Cir. 1968); Jas E, Mat-
thews & Ca v. N.LR.B., 354 F.2d 432, 440-441 and
cases cited (8th Cir. 1965), cert. denied 384 U.S. 1002
(1966); N.LR.B. v. Harold Miller, et al., d/b/a Miller
Charles & Co., 341 F.2d 870, 873-874 (2d Cir. 1965);
N.LR.B. v. United Aircraft Corp., 324 F.2d 128 (2d Cir.
1963), cert. denied 376 U.S. 951 (1964); King Radio Cor-
poration, Inc., 172 NLRB 1051, 1052-56 (1968), enfd. 416
F.2d 569, 571 (10th Cir. 1969), cert. denied 397 U.S. 1007
(1970); Bannon Mills, Inc., 146 NLRB 611 (1964).
b. Oral
Respondent Ameron former Rocky Point mechanic,
Stasio, testified that on September 16, 1978, Woolco
Rocky Point Manager Turmel said to him, in the pres-
ence of Ameron Manager Romines, "[I have] a few
choice words for you .... If [I see you] so much as
talking to any of [my] employees, or soliciting, inside or
outside of the store, [I will] have [you] out of there," to
which Stasio responded, "[You can't] talk to me like
that" and walked away. On cross-examination, however,
Stasio seemingly professed inability to "recall" whether
Turmel limited his remarks to "working time." Accord-
ing to positive testimony of Store Manager Turmel,
however, he told Stasio-in the presence of Romines-
that Stasio was not permitted to solicit on the premises
while at work or during working time and imposed no
other restriction upon solicitation by Stasio.22 Testifying
on the same general topic, General Counsel witness
Renita Wolf, Ameron Rocky Point cashier/salesperson,
testified credibly that within 2 weeks after she signed her
union authorization card (dated August 15, 1978), she
was told by Woolco Assistant Manager Zimmerman that
the store did not want its employees to have anything to
do with the Union and that any employee caught talking
20 Variously descnribed as 8 inches by 11 inches (Stmio), 4 inches by 8
inches (L.da), and 7 inches by 10 inches (Packard).
st Even in noncustomer sales or service areas; cf. Goldblatt Bro. Inc.,
77 NLRB 1262, 1263 (1948); May Department Stores Company, 59 NLRB
976 (1944), enfd. 154 F.2d 533 (8th Cir. 1946), cert. denied 329 U.S. 725
(1946); Marshall Field I Company, 98 NLRB 88, 98-99 (1952), modified
200 F.2d 375 (7th Cir. 1952); McDonald's Corporation d/b/a McDonal's
of Paolo, 205 NLRB 404, 405 (1973).
a" Although called by Respondent in surrebuttal, Romines did not tes-
tify concerning this episode.
about the Union during working time would be fired.
General Counsel witness Lada, another former Ameron
mechanic at Rocky Point, testified that toward the end
of January 1979, while engaged in discussion in the shop
with customer-friend Oliva concerning union benefits
and desirability, Ameron District Manager Anastasio,
who (with Ameron) Shop Manager Rominess) overheard
this, informed Oliva he could not solicit "in the shop or
in the store," and escorted him out-after Oliva had ear-
lier been distributing union literature (received by Oliva
from Lada). Finally, General Counsel witness Drossel, a
former manager-trainee at the Ameron auto shop at
Rocky Point, testified that at a supervisory staff meeting
in October 1978 Respondents' supervisors were instruct-
ed by Respondents' counsel, Christopher Hoey, to assure
that employees did not talk to union solicitors during
working time.
In the resulting somewhat blurred state of the record
on this particular topic, I do not consider that a finding
that Respondents orally forbade employee solicitation so
as clearly to violate the Act, would be justified. To begin
with, it appears to me that the fair intendment and inter-
pretation of the described remarks to Wolf and Lada was
that Respondents thereby orally forbade employee solici-
tation in their store or shop-both customer public sales
and service areas-during those employees' working time,
which is not violative of the Act. Peyton Packing Compa-
ny, Inc., 49 NLRB 828 at 843-844 (1943), quoted with
approval in Republic Aviation Corp. v. N.LR.B., supra at
803-804. Insofar as the conflict in testimony between
Stasio and Turmel on this subject is concerned, on testi-
monial demeanor within the framework of the record as
a whole, I prefer and therefore credit the testimony of
Turmel, who in this aspect impressed me as a more reli-
able witness and possessed of better recollective capacity
than Stasio; and since in any event I would be unjustified
in finding that the testimony of Stasio in this aspect
clearly or substantially preponderates over that of
Turmel, the General Counsel has failed in this aspect to
sustain the burden of proof and persuasion which are his.
Cf. Administrative Procedure Act, 5 U.S.C. § 556(d);
Consolidated Edison Ca v. N.LR.B., 305 U.S. 197, 229,
230 (1938); Blue Flash Express, Inc., 109 NLRB 591, 592
(1954); Attorney General's Manual on the Administrative
Procedure Act 75 (1947).
It is accordingly determined that it has not been estab-
lished by substantial credible evidence upon the record
as a whole that Respondent in violation of the Act orally
forbade solicitation by its employees.'2
a" According to eneral Counsel witness and former Ameron Rocky
Point mechanic Kreshon, on November 13, 1978, at Respondents' River-
head location (where he was then employed) he was told by Ameron Ri-
verhead Manager Patton that if Kreshon went outside the shop to talk to
union representatives he could be fired, even though it was his day off.
Kreshon further testified that when he asked Ameron Rocky Point Man-
ager Romines on March 13 whether he could talk to former Rocky Point
mechanic Stasio-who had been terminated about 2 weeks before then-
in Respondent's restaurant during lunchtime, Romines responded that he
could; and that, when Kreshon pressed further and asked if he could be
fired for doing so, Romines replied that he could not but that it would be
"hard" on him and that he would be "watchedl]." It would not seem that
even if credited-and I would have difficulty in so doing since Kreshon,
Continued
523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondents' no-solicitation rules applicable to
nonemployees
a. Respondents' rule
We come, then, to Respondents' proscription against
solicitation by nonemployees, and its application here.2 4
The rule in question is to be found in a printed state-
ment of "Woolco Policy," seemingly revised in 1977
(Resp. Exh. 16) and applicable in Respondents' establish-
ments throughout the country. This companywide policy
statement was and is posted in a 14 inch by 22 inch
frame on Respondents' personnel bulletin board main-
tained near their personnel office or in the employees'
lounges, located in an area open only to employees, but
not elsewhere posted or made known to any employee,
customer, or nonemployee at any other place in Re-
spondents' stores or shops.2 5 That rule or "policy" is a
section "3" captioned "Some Special Instructions," 2 6 is:
Soliciting is not permitted by any outside person,
organization or organization's representatives
among the selling or non-selling employees on the
premises of this Store at any time.
For purposes of our consideration of this topic, it will be
assumed-since Respondents have so applied and con-
strue it-that this proscription against "solicitation" by
outsiders was intended to apply and applies not only to
solicitation by vendors selling merchandise in possible
competition with Respondents, but also to union mem-
bership "solicitation."
b. Generally applicable principles
The generally applicable principles governing union
membership solicitation upon an employer's premises
have evolved and been laid down in numerous cases at
the Supreme Court and lower levels.
The following guiding principles emerge from a
review of controlling case law:
1. Accommodation is required between an employer's
"property rights" to exclude or inhibit union organiza-
tional solicitation upon its premises, and employees' "or-
who repeatedly experienced seeming difficulty in recollection without
resort to earlier written statements and who impressed me as a generally
less than satisfactory witness---either of these alleged episodes falls clear-
ly within the topic of employer oral proscription of employee solicitation,
which is the only subject and issue here under consideration, all other
aspects of these proceedings having been disposed of by settlement as ex-
plained above.
"4 Since Respondents' disparate application of that rule has already
been considered, section II,B,I, supra, there is no need to rediscuss it
here.
a5 Although there may be some question whether the poster in ques-
tion was actually and visibly posted for employees, as claimed, prior to
the inception of the unionizational campaign in the late summer of 1978, 1
find upon the basis of credited testimony of Respondents' witnesses Zim-
merman and Eitapence that it was. It is, however, noted, that, although
the poster (Resp. Exh. 16) at the outset refers to a "Welcome to Woolco"
booklet distributed to new employees and indicates the "policies and
duties" set forth in the poster (Resp. Exh. 16) are derived from or expli-
cated in the "Welcome to Woolco" booklet (O.C. Exh. 6), at least the
no-solicitation "policy" set forth in the poster (Resp. Exh. 16, par. 3G) is
nowhere to be found in the booklet (G.C. Exh. 6).
2" It may be of interest to note that the "no solicitation" portion of
these "special instructions," while in its terms beamed at and dealing with
solicitation by outsiders is nevertheless publicized only to employees
ganizational rights" to engage in or to be the recipients
of such organizational solicitation. Neither of these
"rights" is absolute, to automatic exclusion of the
other. 2
2. Although employees have a presumed right-sub-
ject to appropriate restrictions as to time, place, and
manner2 8 _-to solicit on employer premises, nonemployee
organizers may also, under certain circumstances, 2 9 have
the right to carry their organizing message to employees
there.
3. Distinct, although to an extent parallel,3 0 legal prin-
ciples apply to union solicitation on the premises of an
employer by nonemployee organizers as distinguished
from employees. 3
4. Resolution of the right of access of nonemployees to
shopping malls and retail establishments thereon, under
current law,3 2 requires the application by the Board of
the "balancing" considerations referred to by the Su-
preme Court in N.LR.B. v. Babcock & Wilcox Co., supra,
" Cf. NLR.B. v. Baptist Hospital Inc., 442 U.S. 773 (1979); Beth
Israel Hospital v. N.LR.B., 437 U.S. 483, 492-493 (1978); Sears Roebuck
& Ca v. Carpenters, 436 U.S. 180, 217 (1978); Hudgens v. N.L.RB., 424
U.S. 507, 521 (1976); N.LR.R v. Magnavox Ca, 415 U.S. 322 (1974);
Central Hardware Ca v. N.LR. ., 407 U.S. 539, 542-544 (1972);
N.L.R.B. v. United Steelworkers of America [NuTone, Inc.], 357 U.S. 357
(1958); N.LR.B. v. Babcock & Wilcox Ca, 351 U.S. 105, 112-113 (1956);
N.L.R.B. v. Stowe Spinning Ca, 336 U.S. 226 (1949); Marsh v. Alabama,
326 U.S. 501, 506 (1946); Republic Aviation Corp v. N.LR.B., supra,
Thomas v. Collins, 323 U.S. 516, 533-538 (1945); N.LR.B. v. Jones d
Laughlin Steel Corp., 301 U.S. 1, 43, 44 (1937); N.LR.B. v. United Air-
craft Corp. and Whitney Aircraft Div., 324 F.2d 128, 130-132 (2d Cir.
1963); Marshall Field & Ca v. N.LR.B., supra. N.L.R.B. v. Lake Superior
Lumber Corporation, 167 P.2d 147, 150-152 (6th Cir. 1948); N.LR.B. v.
American Furnace Ca, 158 F.2d 376, 380 (7th Cir. 1946); N.LR.B. v.
May Department Stores Ca, 154 F.2d 533 (8th Cir. 1946), cert. denied 329
U.S. 725 (1946); N.LR.B. v. Cities Service Oil Ca., 122 F.2d 149, 151-152
(2d Cir. 1941); Art Metals Construction Ca v. N.LR.B, 110 F.2d 148, 150
(2d Cir. 1940); Scott Hudgens, 230 NLRB 414, 416 (1977); H & G Operat-
ing Corp. d/b/a Raleigh Hotel supra. Employees' organizational rights
under the Act include the right to be solicited. "[Slelf-organization can be
and is severly hampered by lack of assistance from trained, full-time or-
ganizers" Marshall Field & Company, supra. To the same effect, see Beth
Israel Hospital v. N.LR.., supra, N.LR.B. v. United Steelworkers of
America [NuTonc Inc.l, supra, N.LR.R v. Babcock v. Wilcox Ca, supra
N.LR.B. v. S. & H. Grosinger's Inc, 372 F.2d 26, 29-30 (2d Cir. 1967).
zs Beth Israel Hospital supra. N.LR.B. v. Baptist Hospital Inc, supra,
Republic Aviation Corp., supra. Las Angeles New Hospital, 244 NLRB 960
(1979).
20 I.e., (I) where the employer's place of business is not located in rea-
sonable proximity to established communities where a large portion of
the employees reside, (2) normally efficacious and reasonably economical
channels of public communication with the employees are not "readily
available," and (3) "the employer's [no-solicitation] notice or order does
not discriminate against the union by allowing other distribution."
N.LR.B. v. Babcock & Wilcox Ca, supra at 114 and 112. See also Mar-
shall Field & Ca. supra at 379. Insofar as union organizational member-
ship, including union "card" or other union representational designation
documentation is concerned, such representational documentation prof-
fers to solicited employees are looked upon by the Board as incidents of
"solicitation" rather than as "distribution," so that its "solicitation" rather
than "distribution" presumptional principles apply. The Rose Company,
154 NLRB 228, 229, fn. 1 (1965); Stoddard-Quirk Manufacturing Ca, 138
NLRB 615, 619, fn. 5, 620-621 (1962).
SO Cf. Carolina Mills Inc, 92 NLRB 1141, 1142, 1149, 1168-69 (1951),
enfd. 190 F.2d 675 (4th Cir. 1951); Giant Food Markets Inc., 241 NLRB
727 (1979).
3t N.LR.B. v. Babcock & Wilcox Ca, supra. See fn. 32, infra.
32 Hudgens v. N.LR.B, supra, in effect renouncing its rationale in
Food Employee, Local 390 v. Logan Valley Plaza Inc, 391 U.S. 308
(1968), and reverting to and reemphasizing the continued vitality of its
previous "balancing" test in N.LRB. v. Babcock & Wilcox Ca, supra.
524
AMERON AUTOMOTIVE CENTERS
and not resort to the Constitutional requirements of the
first and fourteenth amendments, unless state as distin-
guished from private action (i.e., restriction of access and
organizational activity) is involved. 33
5. So far as retail sales establishments are concerned,
total prohibition of solicitation-by employees as well as
nonemployee solicitors-is permissible in customer-traf-
ficked sales or service areas,3 4 with the partial limita-
tion-as to public restaurants-noted in paragraph 6,
below.
6. So far as employer owned or operated public restau-
rants-whether or not a part of general retail sales estab-
lishments (e.g., department stores)-are concerned, unob-
trusive solicitation there by off-duty employees of other
off-duty employees (on lunchtime or breaktime) other
than restaurant employees is permissible; and access to
and unobtrusive solicitation by nonemployee solicitors of
employees other than restaurant employees, may be per-
missible, depending upon resolution of the Babcock &
Wilcox "balancing" test; in either case subject to reason-
able restrictions to avoid interference with or annoyance
to customers in public areas.35
7. Babcock & Wilcox "balancing" of reasonably availa-
ble nonemployee off-premises union organizing alterna-
tives to on-premises access and organizing, require care-
ful, comprehensive, and fair Board weighing of all mate-
rial operative facts. s3
3s Hudgens v. N.LR.B, supra at 512-513 , 517-523; Central Hardware
Company v. N.LR.B., 407 U.S. 539, 545, 547-548 (1972); Giant Food
Markets, Inc., supra
s4 Beth Israel Hospital v. N.LR.R. supra at 493; Marshall Field &
Company, supra, Famous-Barr Ca (May Department Stores Company), 59
NLRB 976, 979-981 (1944), enfd. 154 F.2d 533 (8th Cir. 1946), cert.
denied 329 U.S. 725 (1946); J. L Hudson Company, 67 NLRB 1403
(1946), enfd. 160 F.2d 105 (6th Cir. 1947), cert. denied 331 U.S. 847.
as N.LR.B. v. Baptist Hospital Inc., supra, Beth Israel Hospital v.
N.LR.B., supra (wherein the restaurant cases referred to by the Supreme
Court in fn. 11 involved solicitation of restaurant employees themselves);
Marshall Field & Company, supra' Goldblatt Broat., Inc, 77 NLRB 1262
(1948), McDonald's Corporation, supra, Bankers Club, Inc, 218 NLRB 22
(1975), and Marriott Corporation (Children's Inn), 223 NLRB 978 (1976),
are all readily distinguishable from Marshall Field, supra, since in all those
cases (other than Marshall Field), the employer's public restaurant employ-
ees themselves were being solicited by the union-- significant circum-
stance which the Board explicitly characterized as "particularly impor-
tant" in Goldblatt Bros, Inc., supra at 1263, and which it again "note[d]
especially" in McDonald's Corporation, supra at 408). In Marshall Field d
Ca v. N.LR.R, supra--even aside from the fact that it is the Board's
decision (98 NLRB 88) which is controlling here-the court, in declining
enforcement of that portion of the Board's order permitting access of non
employee organizers to employees' cafeterias and restaurants, rested its de-
termination on the circumstance that, unlike those found in the instant
case, "the facts established ... do not present unique handicaps to self-
organization" (200 F.2d at 381), while pointing out that the union was
actually "permitted to make luncheon appointments and solicit in the
company's public restaurants, subject to restrictions which the Board
found to be valid" (200 F.2d at 382; emphasis supplied).
36 N.LR.B v. Babcock & Wilcox Ca, supra. Appropriate factors for
consideration include geographic distances and dispersal of employees'
residences; employees' varying shift hours; physical configuration and
characteristics of place of employment; location and accessibility of job-
site; feasibility of identifying employees and distinguishing them from cus-
tomers and other nonemployees; propinquity of employer to other em-
ployers, in terms of avoidability of confusion of customers of and inter-
ference with business of other employers, as well as avoidance of seem-
ingly "secondary" pressures; interference with employer's normal busi-
ness; availability, cost, and practicability of alternative methods of com-
municating with employees (e.g., newspapers, billboards, soundtrucks,
radio, television, telephone, mail, suitable meeting places); availability of
8. Where the employer has disparately applied against
union organizational solicitation a total or limited pro-
scription against solicitation on its premises-whether by
emloyees or nonemployees-the proscription will be
treated as violative of the Act. 37
Application of these guiding principles to the instant
case enables resolution of the issues resulting from Re-
spondents' specific applications of their absolute no-so-
licitation proscription against nonemployee union orga-
nizers, solicitors, or visitors.3 8
To begin with, as has been found, Respondents' no-so-
licitation ban against "outside" solicitation was disparate-
ly applied and, on that ground alone, without more, it
was in violation of the Act.3 9
Beyond and apart from this, however, there are in-
volved Respondents' interdiction of nonemployees'
access to employees on their sidewalks and store en-
tranceways, possibly also in immediately abutting road-
way and parking areas, their publicrestaurants (Harvest
House), and their employees' lounges-all of which they
continue to maintain are their "premises" subject to their
no-solicitation rule.40
Insofar as Respondents' sidewalks and entranceways
are concerned, taking into consideration that they are
dedicated to public use and are shared by employees
with customers and other pedestrians;4t no reason ap-
pears why reasonable, nondisruptive, limited solicitation
not interfering with customer or employee access to or
exit from Respondents' premises, should remain under
total interdict. The same is true for parking areas.4 2
lists of names and addresses of employees; realistic comparison of efficacy
of actually versus theoretically available methods of communicating the
union's organizational message to the employees. Cf. Hudgens v.
N.LR.B., supra, Central Hardware Ca v. N.LRB., supra; N.LR.B. v.
United Aircraft Corp., supra,' May Department Store Company, d/b/a Meier
.& Frank Co., supra (employees readily identifiable since required to enter
and leave via separate employees' entrance/exit); H & G Operating Corp.
d/b/a Raleigh Hotel, 191 NLRB 719 (1971); S. H. Grossinger's Inc., 156
NLRB 233 (1965), enfd. as modified 372 F.2d 26, 29-30 (2d Cir. 1967);
Scott Hudgenx supra' Marshall Feld & Company, supra, LeTourneau Com-
pany of Georgia, 54 NLRB 1253, 1260-61 (1944), affd. sub nom. Republic
Aviation Corp. v. N.LR.R, 324 U.S. 793 (1945); Peyton Packing Ca, 49
NLRB 828, 843-844 (1943), enfd. 142 F.2d 1009 (5th Cir. 1944), cert.
denied 323 U.S. 730.
s" N.LR.B. v. Babcock A Wilcox Ca, supra N.LR.B. v. United Steel-
workers of America [NuTone, Inc.], 357 U.S. 357, 363 (1958); Marshall
Field Ca v. N.LR.., supa,' Bonwit Teller. Inc v. N.LR.B., 197 F.2d 640
(2d Cir. 1952), cert. denied 345 U.S. 905 (1953).
ss It is emphasized that to the extent Respondents have sought to
impose a similarly broad proscription against employee solicitation, it has
already been found (supra) to have been in violation of the Act and will
be voided (infra).
'9 See cues cited supra, fn. 37.
40 No question is raised concerning Respondents' right to exclude non-
employee organizers from their customer-trafficked sales and service
areas, which is clear. See cases cited supra, fn. 34. Nor is any question
presented as to the right of nonemployee access to the mall itself, which
has not been proscribed or sought to be prevented.
41 Cf. Marshall Field & Company, supra. Unlike May Department Store
Company d/b/a Meier & Frank Ca. supra, where employees had their
own separate entrance/exit, at which their organizational solicitation was
not interfered with, in the instant case all employees-even mechanics-
are required to enter and leave by the customers' front entrance/exit.
4" Regulation of the exact extent and manner of the exercise of such
peaceful organizational solicitation and handbilling is normally handled,
in case of abuse, by local police and judicial authorities. If violation of
the Act occurs, redress may be sought before the Board. No attempt
need here be made to anticipate such contingencies, nor to catalog and
prospectively provide for them in their limitless ramifications.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question of nonemployee access to Respondents'
Harvest House public restaurants for union solicitation
purposes requires application of the Babcock & Wilcox
"balancing" test alluded to above.43
Substantial credible evidence upon the record as a
whole, without effective contradiction, establishes the
following circumstances: that Respondents' stores and
automotive service shops are located in shopping malls
in suburban or semirural areas, drawing customers as
well as employees from a widely dispersed and relatively
distant areas; that access thereto is by private auto-
mobiles over highways and secondary roads; that identi-
fication, recognition, or differentiation of the automobiles
of Respondents' employees when entering, leaving, or
parked within the malls is for practical purposes substan-
tially impossible or unfeasible; that Respondents' employ-
ees work different shifts; that Respondents have indicat-
ed and made known, through issuance and maintenance
of a broad no-solicitation rule forbidding all solicitation
by any nonemployee, and through express written and
oral notifications to employees and the Charging Party
Union that union organizational solicitation of Respond-
ents' employees by nonemployees of Respondents4 4 is
and will continue to be totally proscribed and forbidden
in all areas including Respondents' stores and shops,
sidewalks and abutting locations, Respondents' public
restaurants, and employees' lounges, upon threat of arrest
and prosecution for "criminal trespassing"; 4 s that it is
unfeasible and impracticable for the Charging Party
Union to obtain or to attempt to obtain, from Respond-
ents,4 6 or otherwise, lists of the names and addresses of
Respondents' employees; that utilization by the Union,
for organizational purposes, of methods or media of com-
munication to Respondents' employees consisting of mail,
telephone calls, telegrams, newspaper announcements
and advertisements, billboards, soundtrucks, radio, televi-
sion, and rental of local assembly sites, would be unduly
and unreasonably burdensome and prohibitively expen-
sive, as well as of highly questionable practicality, feasi-
bility, or efficacy, and should not be required in order to
enable Respondents' employees to obtain the Union's or-
ganizational message; that, because of Respondents'
43 See cases cited supra, fns. 27, 29, 32, and 35. Employee access to
cafeterias/restaurants for union solicitation purposes even in the arguably
highly "sacrosanct" premises of hospitals (as possibly distinguished from
department stores) met with Supreme Court sanction in NLR.B. v. Bap-
tist Hospital Inc, supra Beth Israel Hospital v. N.L R.B., supra
44 Findings concerning Respondents' similar proscription agaunst solici-
tation by employees are contained supra.
4' Resp. Exh. I. It has been pointed out that persons asserting or seek-
ing to exercise rights under the Act should not, in order to enjoy them or
in the course of pursuing them, first have to suffer arrest or prosecution,
or threat thereof. Cf. Giant Food Market% Inc., supra
46 Although the Union made no demand upon Respondents for such a
list (cf. Tennsco Corp., 206 NLRB 48 (1973)), or to enter upon their prem-
ises, there is no reason for supposing such a demand any more then a
demand to meet with employees in their restaurants, would have met
with success, in the face of Respondents' other hostile actions toward it,
including the threat of prosecution for "criminal trespassing" and the re-
peated calling of police, as well as Respondents' demonstrated across-the-
board hostility toward unionization and any efforts in that direction, and
Respondents' currently maintained positions in this litigation. Under such
circumstances, union demand upon Respondents for lists of employees
and addresses, or to enter their restaurants, would have been a futile ges-
ture, wooden adherence to which need not be technically required. Cf.
Scott Hudgens supra
maintenance and enforcement of their total ban against
solicitation, substantial proportions of their employees
have been unable to receive the Union' organizational
message, and have for that reason been restricted, inter-
fered with, restrained, and coerced by Respondents in
the exercise of their organizational rights under the Act;
and that the organizational methods heretofore sought to
be utilized by the Union have proven ineffectual, and
have themselves been substantially prohibited and abort-
ed by Respondents.
Under these circumstances and for these reasons, to
limit the Union to the relatively distant entrances to the
mall itself,47 and to restricted access to Respondents'
sidewalk and parking lots would not suffice, since,
among other things, the problems of recognition and dif-
ferentiation of employees from customers and other non-
employees would remain unsolved. It is accordingly nec-
essary to deal with the question of access by nonem-
ployees, for solicitational purposes, to Respondents'
public restaurants (Harvest Houses) and employees'
lounges.
Insofar as Respondents' "Harvest House" restaurants
are concerned, it is at the outset emphasized that they
are open to the public (store customers, restaurant pa-
trons, employees, and others) without limitation or
posted or other indication of restriction or of limited li-
cense. Respondents do not monitor the private discus-
sions which go on among patrons of those restaurants,
nor do they censor the documents which may pass be-
tween them. In this aspect, Respondents' position is in
direct clash with that of the Charging Party Union, the
latter supported by the General Counsel. On the one
hand, Respondents insist that their absolute ban against
solicitation in their public restaurants is no more than an
incident of their right of private property; on the other
hand, Respondents' employees, the Union, and the public
as represented by the General Counsel, urge that em-
ployees have the right to self-organization under the Act,
part of which is the right to receive communications
from unions. As has been shown above, 48 since neither
of these rights is absolute, they must be brought into bal-
ance and reconciled.
Respondent Employers urge that communications be-
tween the employees and the Union may readily take
place other than on its "private property." They suggest,
for example, home visits; the Union's answer is that it
does not have knowledge of who the employees are,
much less where they live in the widely dispersed and
here and there densely populated suburban areas in-
volved. The Employers further suggest the Union should
resort to television, radio, and news media advertising.
Requiring the Union to reach the employees via televi-
sion, radio, or other news media communications would
be both unrealistic and impractical. For one, it would, as
shown, be prohibitively costly; for another, the efficacy
of such a scattershot approach is at best highly conjec-
4" Union President Koenig testified without contradiction that when
he attempted to solicit at a highway entrance to the mall, he was warned
away by police for the reason that he was creating a traffic hazard or
impediment.
48 See cases cited supra, fns. 27. 29, 32. 35, and 36.
526
AMERON AUTOMOTIVE CENTERS
tural. Cf., e.g., N.L.R.B. v. United Aircraft Corp., supra;
Hutzler Brothers Company, supra. Respondents further
argue that since their employees on duty at closing time
may not leave until customers have done so, they are at
that time distinguishable from customers and accordingly
readily subject to union solicitation. This argument is of
dubious validity at best, since (1) the union solicitor
would have no way of knowing when the last customer
left, or of distinguishing between the last customers leav-
ing and the first employees leaving, (2) many employees
do not work until closing time, (3) Respondents take the
position that their no-solicitation rule applies to their
sidewalks and closely abutting areas as well as to their
building, and (4) such employees that leave after night
closing time are undoubtedly anxious to get home rather
than to engage in discussions as to whether to join a
union. These circumstances indicate that attempted
night-time solicitation on Respondents' sidewalks and
parking lots after work is simply not a practicable
method for Respondents' employees to receive the
Union's organizational message. The same is true for em-
ployees hastening to get into the store on time within rel-
atively brief minutes before its opening. Respondent's
suggestion about organizational meetings in assembly
places must similarly be weighed in terms of the wide
geographical dispersal of the employees, the necessity to
hold such meetings early in the morning before store
opening time or late at night after store closing time, the
high cost of and national policy to economize upon use
of gasoline, and the demonstrated inefficacy of such at-
tempts. Respondents also suggest that the Union could
conduct its solicitation activities in a nearby bowling
alley, but, even aside from how the bowling alley owner
or operator would react thereto, there is no indication of
when that could be done nor of how many of Respond-
ents' employees bowl. It is unessential that the Union
first have unsuccessfully exhausted all other conceivable
avenues of solicitation as a precondition to application by
the Board of the Babcock & Wilcox "balancing" princi-
ple. Hutzler Brothers Company, supra. Nor, contrary to
Respondents' further contention, do I consider the fact
that Respondents' employees first "initiated contact with
the Union" (Resp. brief, p. 18), to be determinative so as
to render inapplicable otherwise controlling precedent
and principle.
Respondents urge that only employees, and not unions,
have rights under the Act. Although this contention
seems overbroadly stated, 49 in any event under the Act
employees have the right to be represented by unions
and to deal with and therefore necessarily to communi-
cate with unions, subject, it is true, to avoidance of rea-
sonably avoidable or disruptive impingement upon the
conduct of their employer's normal business operations.
If, as is the fact here, the employees are exposed to the
employer's antiunion exhortations-as is the employer's
right-simple fairness requires that they not be for prac-
tical purposes absolutely shut off from the message of the
union. To be sure, as pointed out in numerous cases cited
above, reasonable accommodation may be necessary,
49 For example, unions as certified or recognized collective-bargaining
representatives have the right-indeed the obligation-to bargain for and
otherwise represent all unit employees
upon a case-by-case basis, between the right of the em-
ployer to carry on his business without undue disruption
and the right of his employees to engage in organization-
al activities lawful under the Act, including receiving the
union's message.50 Receipt of that message in orderly
fashion during nonworking time, even though on public
portions of the employer's premises open to nonworking
employees on the same basis as the public generally,
cannot, under the circumstances of the instant case, be
regarded as disruptive of the employer's business. All
that the employees and the Union seek here is the right
to talk in a public restaurant, in the same way that a
union representative and a nonemployee customer may.
Employer censorship and proscription of such private
conversations on nonwork time in a public facility, even
though it happens to be within a building owned and
leased by the employer, would appear to be unreasonable
as well as impracticable, and, if carried out, under the
circumstances here shown, in practical effect to be pre-
clusive of the ability of the employees to communicate
with the union at all-and thus preclusive of the employ-
ees' right under the Act to organize for collective bar-
gaining. Although, to be sure, the employer has "proper-
ty rights," the employees have correlatively important
legal "organizational rights," and to the extent that the
employer's "property rights" may in the context of the
instant case be required to yield or bend somewhat to ac-
commodate the employees' "organizational rights," it
would be a mild stretch at best. Balancing those rights,
as I consider myself required to do,5 1 I am persuaded
and find that no undue, unreasonable, substantial, or,
indeed, significant harm, and no disruption or interfer-
ence with Respondents' business operations, would result
from sanctioning reasonable and undisruptive, private
communicational contacts between Respondents' em-
ployees and union representatives in Respondents' public
Harvest House restaurants during those employees' lunch
and break periods.
Since organizational solicitation5 2 by Respondents'
employees in Respondents' Harvest House restaurants
during their nonworking time will be permissible with
the lifting herein5 3 of Respondents' blanket proscription
against solicitation by their own employees, 54 it is diffi-
50 It would fly in the face of reality to give little weight to the circum-
stances, described above, involved here in connection with Respondents'
mall locations, to which, for practical purposes, employees are confined
for their entire workday, and to and from which they presumably hastily
commute by private vehicles from scattered and relatively distant domi-
ciles. If such considerations are assigned no weight, suburban and semi-
rural malls could assume the character of Act-free enclaves which "could
largely immunize themselves from [union organizational activities guaran-
teed under the Act] by creating a cordon sanitaire of parking lots around
their stores" (Food Employees Local 590 v. Logan Valley Plaza, Inc, 391
U.S. 308 at 325 (1968))-so as effectively to foreclose exercise and enjoy-
ment of Congressionally guaranteed Sec. 7 rights.
5' Cf. N.LR.B. v. Babcock & Wilcox Ca, supra, and other cases cited
supra, fns. 27, 29, 32, 35, and 36.
5a I.e., orderly solicitation not involving littering or other arguably
undue burden upon or disruption of Respondents' operations.
"S See sec. 11,B,I, and II,B,2,a, supra, and Order, infra
b4 It is to be noted, in this connection, that in two recent cases the
Supreme Court has sanctioned employee solicitation even in public res-
taurants (cafeterias) of hospitals. See N.LR.B v. Baptist Hospital, Inc,
supra,. Beth Israel Hospital v. N.LR.B. supza.
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cult on practical grounds to apprehend in what signifi-
cant way that differs from the very same activity if car-
ried on with similar unobtrusiveness and circumspection
by a nonemployee or union representative. Thus, a par-
ticular soliciting employee may be just as much (or as
little) a stranger to the solicited employee as a particular
union representative; and the unobtrusive manner or
style of solicitation surely does not turn on whether the
solicitor is an employee or an "outsider"-indeed, the
"outsider" may be more circumspect than the "insider."
This being the case, justification for the distinction must
be sought in and based, as indeed Respondents contend,
upon a naked "property" right of a vendor to exclude
from his premises all persons who do not enter upon the
express condition that they do not "talk union" to em-
ployees patronizing their public restaurant on their own
time. Even apart from the dubious legality of the asser-
tion of such an absolute right or power, in appraising the
bona fides of this contention here it is to be noted that
nowhere is such a condition or limitation posted or made
known to any "outsider"-the only posting is to employ-
ees, in that portion of Respondents' premises restricted to
"employees only"; i.e., that portion of Respondents'
premises where an "outsider" may not enter. Beyond
this, enforcement of any such condition, rule, or require-
ment is pragmatically impossible. How, for example,
could Respondents "police" every conversation between
two or more people at the tables of their public restau-
rants? (For example, nonsolicitational discussions be-
tween union solicitors and employees are not pro-
scribed.) And, can it be doubted that "outsiders" (cus-
tomers, itinerant viewers of merchandise, strollers, etc.)
have on occasion discussed their own business, involving
solicitation of custom, orders, or services, while partak-
ing of food or drink in Respondents' public restaurants?
Since Respondents' employees will not be required
during nonworking time to refrain from soliciting unob-
trusively in Respondents' restaurants, and since "outsid-
ers" are not put on notice of such a limitation, what
valid end does its continued rigid assertion here serve,
other than to arbitrarily single out and run a union orga-
nizer qua union organizer, off its restaurant premises if
he dares talk union to an off-duty employee at a private
table which they share? While Respondents contend they
would summarily eject such a person if observed at a
table in their restaurant unobtrusively handing a union
card to an employee during a quiet and inaudible private
conversation, is it credible that Respondents would sum-
marily eject from their restaurant a customer who during
a similar private conversation hands his luncheon com-
panion a charity contribution blank, an order for mer-
chandise, a lease, a proposed insurance policy, or a con-
tract to take home and read? Unobtrusive solicitation in
Respondents' restaurants by a nonemployee is thus, for
practical purposes, no different from the very same act
by an employee, the one involving no greater affront or
harm to Respondents' "property rights" than the other.
Balancing the competing rights here, as required, in
my judgment their reasonable accommodation requires
that Respondents' total proscription against union organi-
zational solicitation by nonemployees be voided, and jus-
tifies and requires that reasonable and unobtrusive access
to Respondent's Harvest House restaurants be allowed to
nonemployee union organizational solicitors to the extent
of permitting therein conversations, including the passing
or tender of documents, between an individual employee
or employees and a nonemployee union or other organi-
zational solicitor while seated at a table in those restau-
rants, during Respondents' employees' nonworking time,
so long as Respondents' employees are permitted to pa-
tronize those restaurants; 55 but not (1) table-to-table,
across-tables, or strolling solicitation, (2) solicitation at
any restaurant counter, or (3) solicitation of any person
employed in the restaurant. s5
Respondent Woolco argues that, since its restaurants
are owned and operated by it, even though located in a
segregable portion of its premises reached directly from
the street (or, as in the case of its Riverhead location, in
a nearby but separate building), they are just like other
departments of the store and that therefore the usual rule
proscribing solicitation in department store customer sell-
ing areas applies. (Cf. Famous-Barr Co. [May Department
Stores Company], 59 NLRB 976, 979-981 (1946), enfd.
154 F.2d 533 (8th Cir. 1946), cert. denied 329 U.S. 725
(1946)). I do not agree, except as to solicitation of per-
sons employed in the restaurants themselves. 57 Since pa-
trons-whether employees or nonemployees of Respond-
ents (including, it is to be noted, employees of Respond-
ent Ameron, which has no proprietary interest, role, or
relationship in those restaurants) of those restaurants sit
at tables discussing their private or other affairs or con-
ducting their business privately, those private table dis-
cussions are not the same as solicitations on sales floors
milling with customer traffic or while customers are
waiting to be served. It is a known fact of life that
people the world over talk about things and conduct
their business at tables in restaurants. Particularly where,
as here, a "balancing" (N.L.R.B. v. Babcock & Wilcox
Co., supra) is applied, no reason is apparent, and no facts
have been shown, why such private table discussions by
Respondents' employees (other than the restaurant em-
ployees)-unlike all other restaurant patrons-should be
placed under interdict. On the contrary, subject to rea-
sonable limitations, they should be allowed. Cf. N.L.R.B.
v. Babcock & Wilcox Co., supra, and other cases cited
supra, fn. 35; Hutzler Brothers Company, supra; Scholle
Chemical Corporation, 192 NLRB 724 (1971), enfd. 82
LRRM 2410 (7th Cir. 1972); Oertle Management Compa-
ny, Inc., 182 NLRB 722 (1970); Marshall Field & Compa-
ny, supra; N.L.R.B. v. Baptist Hospital, supra; and Beth
Israel Hospital v. N.L.R.B., supra. as
"5 Indeed, under the circumstances shown, those restaurants appear to
be "uniquely appropriate" (Republic Aviation Corp. v. N.LR.R, supra),
places for Respondents' employees to discuss organizational matters, pri-
vately and unobtrusively, during their own free time during the day.
Is We do not address the question of solicitation of Respondents' res-
taurant employees on their own, nonduty time, since that issue is not pre-
sented here and the Charging Party has upon the record disavowed inter-
est in doing so. Cf., cses cited supra, fn. 35.
"' See fn. 56 and cases cited in fn. 35, supa.
's Respondents' express the fear of possible misbehavior in their res-
taurants by union representatives admitted thereto, and apprehension-
colorfully portrayed-that their restaurants may be converted into a
"combat zone" for the "strident rhetoric" of "competing unions" (Resp.
Continued
528
AMERON AUTOMOTIVE CENTERS
From yet another viewpoint, it may be said that by in-
viting their employees to eat in their restaurants as
paying customers thereof, Respondents have given equal
status and rights to those employees as to other restau-
rant customers, to talk unobtrusively to their guests, or
table companions on whatever subjects they wish to dis-
cuss, without censorship by the restaurateur.
There remains for determination the question of
whether union and other nonemployee organizational so-
licitors should be allowed access, now forbidden to all
other than employees, to Respondents' employees'
lounges, for organizational purposes. Those lounges are
located in a rear, street-level portion of Respondents'
premises, in an area barred to all but Respondents' em-
ployees, entered through a door marked "Employees
Only." The immediate area also contains not only Re-
spondents' executive or managerial offices with their sup-
porting administrative staffs, but also all of Respondents'
financial, personnel, and other records, as well as its
opened safe and cash room, and reserve stock area en-
trance, ready access to all of which is presumably con-
tinuously required during business hours. All of Re-
spondents' employees are bonded. Thus, at present, only
bonded persons may enter what is regarded as this "secu-
rity" area. Respondents argue that to throw open that
area to nonbonded outsiders would jeopardize its secu-
rity, including prominently the cash continuously main-
tained, deposited, and exchanged therein, and removed
therefrom, in the regular course of their business oper-
ations; or, alternatively, to undertake costly redesigns,
renovations, and reconstruction of their premises in
order not to jeopardize the existing security thereof since
access is currently limited to bonded employees. I am in-
clined to agree, particularly since granting access to un-
bonded nonemployees to Respondents' restaurants (as
well as its sidewalks and abutting parking areas) should
suffice to enable the employees to receive the Union's
organizational message,59 without jeopardizing the secu-
rity of Respondents' operations by admitting unbonded
strangers to access to its cash repositories or, alternative-
ly, requiring Respondents to undertake the expense of re-
designing or reconstructing their facilities and business
operations. In my opinion, again "balancing" the compet-
ing rights here, going so far is neither required nor war-
ranted. It will accordingly not be required that, under
the existing circumstances as shown, Respondents' cur-
rent practice of excluding all but its own bonded person-
br., p. 30). Respondents accordingly (id, pp. 30-31) suggest · way out:
use another restaurant (i.e., gore somebody else's ox-"interfere" with
another restaurant's "customes," assuming the other restaurant owner
does not likewise sert the right to censor the private conversations
taking place among its patrons at its tables).
Although such apprehensions of misdeed are speculative, should they
eventuate they may readily be handled like all such situations, whoever
the misbehaving customer may be, if necessry by resorting to store secu-
rity personnel, or the police. Such fears do not constitute adequate basis
for denial of employees' rights.
A5 Cf. Marnall Field & Ca v. N.LRB.. supa.
nel from the area in question, containing the employees'
lounge, be altered.60
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in these proceed-
ings.
2. Through assertion, maintenance, and enforcement of
their no-solicitation rules, in the discriminatory and other
manner and to the extent hereinabove in section II,
supra, applied so as to proscribe, interfere with, and pre-
vent union organizational solicitation by employees and
nonemployees, Respondents have interfered with, re-
strained, and coerced employees in the exercise of rights
under Section 7, in violation of Section 8(a)(1) of the
Act, and Respondents continue to do so.
3. Respondents' unfair labor practices in violation of
the Act, and each of them, have affected, affect, and,
unless permanently restrained and enjoined, will continue
to affect commerce within the meaning of Section 2(6)
and (7) of the Act.
4. Substantial credible evidence upon the record as a
whole fails to establish that Respondents or either of
them orally in violation of the Act forbade lawful solici-
tation under the Act by Respondents' employees.
REMEDY
To the extent Respondents have been found to have
violated the Act, they should be ordered to cease and
desist from such and like and related violations, as well
as to take certain affirmative actions in implementation of
the cease-and-desist requirements and to carry out the
policies of the Act. Respondents should also be ordered
to post the usual informational notice conventionally re-
quired in cases of this nature.
The affirmative requirements of limited nonemployee
access to portions of Respondents' premises, as well as
the cease-and-desist provisions of the Order, should be
applicable only to the five Long Island, New York,
premises of Respondents involved in this litigation, not-
withstanding the nationwide applicability of Respond-
ents' no-solicitation "Woolco Policy No. 3G" (supra),
since no proof was submitted as to the necessity or factu-
al basis for any "balancing" (N.LR.B. v. Babcock &
Wilcox supra) of factors in Respondents' other locations
throughout the country; nor as to any discriminatory,
disparate, or otherwise unlawful application of that or
any other no-solicitation rule or requirement as to em-
ployees or as to nonemployees at any other location.s6
'o Nor, particularly in view of the provision here made for access to
Respondents' public restaurants, sidewalks, and abutting parking areas, do
I consider it necessary or appropriate to throw open the use of Respond-
ents' store toilets for union organizational purposes a the General Coun-
sel proposes.
"I In a post-brief letter of October 1. 1979 (see fn. 2, supa) Respond-
ents' counsel object to what they indicate as the Oeneral Counsel's seek-
ing herein of a J. P. Stevens A Co. Inc. remedy (245 NLRB 198 (1979)).
The cited case is inapposite, and its broadscale remediation is neither sug-
gested nor allowed here.[Recommended Order omitted from publication.]
529