Central Hardware Co.

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 491 (N.L.R.B. 1970)

CENTRAL HARDWARE CO. 491
Central Hardware Company and Retail Clerks Union
Local No. 725, Retail Clerks International
Association , AFL-CIO. Cases 25-CA-3214 and
25-CA-3261
March 4, 1973
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 23, 1969, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
limited exceptions with a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modifications:
1. The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) of the Act by
maintaining an unlawfully broad employee
"no-solicitation" rule. The Trial Examiner also
found, however, that Respondent did not violate
Section 8(a)(1) of the Act by disparate and
discriminatory enforcement of this rule. General
Counsel excepted to this finding. For the reasons set
forth below, we find merit in General Counsel's
exception.
On June 13, 1968, the Respondent's
Vice-President, George Reed, delivered a speech to
the employees and announced a long-standing policy
regarding solicitations on company premises. The
policy as stated was that "no solicitation may be
made on company premises for any purpose without
prior management approval." The Trial Examiner
found, as stated above, that this rule was invalid and
in violation of Section 8(a)(l) of the Act.
Sometime in June, an antiunion petition was
circulated among the employees at the Respondent's
East store. Raymond Spears, while on working time
in the selling area of the store, was asked to sign the
petition. Ted Kaptain, a supervisor for Respondent,
was present at the time of the signing and praised
the objectives of the petition. No disciplinary action
was taken against the circulators or signatories of
the petition. Later, in July, George Reed while
unlawfully interrogating employee Ragle showed her
the document and stated that it had been circulated
and signed by employees at the East store. In
contrast with its leniency with regard to employees
engaging in antiunion activity on working time,
Respondent strictly enforced its no-solicitation rule
against Ragle for union solicitation on July 8 by
laying her off for 3 days. We find, therefore, that
Respondent by its disparate and discriminatory
enforcement of the invalid no-solicitation rule
further violated Section 8(a)(1) of the Act.
2. For the reasons hereinafter set forth, we find,
contrary to the Trial Examiner, that Respondent
violated Section 8(a)(1) of the Act, by its conduct in
ejecting Union Representative Mark Kapetanakis
from its store and having him arrested.
The Trial Examiner found, and the record reveals,
that union Representative Kapetanakis, on July 22,
1968, attempted to enter the Respondent's West
store, and was told by store manager, Max
Hagerman, not to enter the store and to leave the
parking lot. Kapetanakis replied that he was going
into the store as a customer to look at sporting
goods and would not talk to employees about the
Union. At the hearing, he testified that he also
intended to look "to see who the employees [were]
facialwise, who, [was] working and who [he could]
home call." Hagerman testified that he informed
Kapetanakis "that if he went in the store [he] had
orders to call the police." Kapetanakis entered the
store and went to the sporting goods department.
Shortly, thereafter, an Indianapolis policeman who
had been sent for by Hagerman, asked Kapetanakis
to leave the store, and in full view of several
employees, escorted him out and placed him in a
police vehicle. This action was taken by Respondent
in furtherance of a rule it had adopted to "keep all
union organizers off [its] premises, both inside and
outside." The Trial Examiner correctly found this
rule to be an unduly broad, and hence invalid,
nonemployee no-solicitation rule violative of Section
8(a)(1) of the Act.' But he held nonetheless that
Respondent did not act unlawfully in ejecting
Kapetanakis from the store and in having him
arrested in the circumstances above set out. We do
not agree.
in finding this rule to be unduly broad , the Trial Examiner took into
consideration circumstances disclosing that there were no reasonable means
As the record herein, including the exceptions and briefs , adequately available to the nonemployee representatives of the Union to reach
presents the positions of the parties , Respondent's request for oral Respondent's employees with its organizing message except at the
argument is hereby denied Respondent 's premises , that the complex in which Respondent 's stores
181 NLRB No. 74
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are not faced here with the question of
whether Respondent could lawfully have prohibited
Kapetanakis from engaging in union solicitation on
its selling floor.3
The undisputed evidence establishes that
Kapetanakis had advised Respondent he was
entering the store as a customer, and on doing so
committed no overt act inconsistent with his
announced intent or otherwise disruptive of
Respondent's business. In the context of
Respondent's other, and clearly unlawful action
restrictive of employee organizational rights, we find
that Respondent's summoning of the police to have
Kapetanakis expelled and arrested in the full view of
its employees was not justified by any legitimate
business considerations, but was motivated by the
same antiunion considerations that prompted
Respondent's unlawful prohibitions of employee
solicitation in the store, its prohibition of
nonemployee solicitation on its parking lots, its
discriminatory enforcement of its no-distribution
and no-solicitation employee rules, and its other
unlawful conduct directed against employee
self-organizational rights.4
We therefore conclude that by expelling and
having union representative Kapetanakis arrested, in
the present circumstances, Respondent further
interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed
by Section 7 of the Act, and thereby violated
Section 8(a)(1) of the Acts
3. We reach a different conclusion, however, as to
Union representative Stahl, whom Respondent also
excluded from the store and threatened with arrest.
Respondent had a uniformly enforced policy against
allowing discharged employees on its premises, and
Stahl had been discharged by Respondent for just
cause in the latter part of May. In excluding Stahl
were located contains other business enterprises , that there are no fences,
or gates around Respondent 's parking lots, that Respondent does not
station guards there for the purpose of refusing access to anyone ; and that
there are no signs barring trespassers from its lots We agree that these
circumstances distinguish this case from N L R B v Babcock and Wilcox
C o, 351 U S 105. See Solo Cup Co. 172 NLRB No 110, and
Amalgamated Food Employees Union Local 590 v Logan Valley Plaza,
Inc, 391 U.S 308
In addition , we note also that Respondent precluded any union
solicitation by employees on its premises, while permitting antiunion
solicitation , thereby further restricting employee opportunities to be
informed about organization
'See the following cases involving retail store operations in which we
have held that employers may lawfully prohibit nonemployee union
organizers from soliciting and from distributing union material in certain
areas of the retail store premises and enforce violations of that prohibition
by expulsion and by maintenance of surveillance over the nonemployee
union organizers who enter the store for purposes of soliciting employees
G C Murphy Company, 171 NLRB No. 45, Heck's, Inc, 170 NLRB No
53, Super X Drugs of West Virginia, Inc. 169 NLRB No 42, Cf
Marshall Field & Co, 98 NLRB 88
'No contrary inference as to Respondent 's motivation flows from
Kapetanakis' admission at the hearing that his subjective but undisclosed
reason for entering the store was to acquaint himself with the identity of
the employees "facialwise "
'Cf Priced-Less Discount Foods, Inc, 162 NLRB 872, Heck's Inc, 156
NLRB 760, 761
from the store Respondent was enforcing its valid
rule forbidding discharged employees on its
premises. Accordingly, in these circumstances, we
do not believe a finding is justified that Respondent
violated Section 8(a)(1) of the Act by excluding
Stahl.
4. The Trial Examiner also found that the
Respondent did not violate Section 8(a)(1) of the
Act by its interrogation of employee Ragle. We
disagree. The Trial Examiner found that in October,
Respondent's supervisor, Cavellier, approached
Ragle, who was wearing a union button, and asked
her if she would "like to have the Union in here."
The conversation continued along this line for
several minutes. Respondent up to this time had
engaged in numerous unfair labor practices,
including interrogation, threats of loss of benefits
and discriminatory disciplinary action against this
same employee. In the context of Respondent's
other substantial violations of the Act, we find that
this interrogation was coercive and in violation of
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Central Hardware Company, Indianapolis, Indiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as amended below.
1. Add the following as paragraphs 1(e) and 1(f)
to the Trial Examiner's Recommended Order,
relettering the subsequent paragraph:
"(e) Enforcing in a discriminatory manner any
rule pertaining to union activities on company time.
"(f) Coercively interrogating employees
concerning their or other employees' union
membership, activities, and desires."
2. Substitute the attached notice for the notice
attached to the Trial Examiner's Decision.8
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
'in the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
After a trial in which both sides had an opportunity to
present their evidence, it has been adjudged that we
violated the law by committing unfair labor practices.
CENTRAL HARDWARE CO.
Accordingly, we post this notice and we will keep the
promises that we make in this notice.
WE WILL NOT make, or enforce, any rule prohibiting
any employee from soliciting any other employee to
become a member of, or to support, Retail Clerks
Union Local 725, or any other union, in nonselling or
nonworking parts of our stores during nonworking
time. As such a rule was announced in speeches given
by George Reed, our vice president, on June 13, 1968,
WE WILL cancel it
WE WILL NOT question any employee as to whether
such a rule has been obeyed and WE WILL NOT fire, lay
off, suspend, or in any other way punish any employee
for not obeying such a rule.
WE WILL NOT make, or enforce any rule prohibiting
organizers or representatives of Retail Clerks Union
Local 725, or any other union , from coming on our
parking lots to solicit, or to arrange to solicit, any
employee to become a member of, or to support, Retail
Clerks Union Local 725, or any other union . As such a
rule was announced in letters to employees, dated July
15, 1968, signed by Stanley M. Cohen, our president,
WE WILL cancel it.
WE WILL NOT reduce your salary, or wages, or any
other benefit you now have, or do anything else which
will be to your disadvantage, and WE WILL NOT
threaten to do any of these things for the purpose of
encouraging you not to support, or not to become
members of, Retail Clerks Union Local 725, or any
other union.
WE WILL NOT raise your salary or wages, or give you
any benefits you do not now enjoy, and WE WILL NOT
promise to do any of these things for the purpose of
encouraging you not to support, or not to become
members of, Retail Clerks Union Local 725, or any
other union
WE WILL NOT fire, layoff, suspend, fail or refuse to
reinstate, or discriminate against, any employee for
engaging in union activity or for joining any union. As
it has been decided that we discriminated against
Marilyn Ragle in this manner when we suspended her
because she engaged in activity in support of Retail
Clerks Union Local 725, WE WILL pay her for any loss
of wages she suffered because we suspended her.
WE WILL NOT coercively ask employees questions
about their and other employees' union membership,
activities, and desires.
WE WILL NOT enforce in a discriminatory manner
any rule pertaining to union activities on company time.
WE WILL NOT in any manner interfere with, restrain,
or coerce you in the exercise of any rights guaranteed
to you by the National Labor Relations Act. In this
connection WE WILL respect your rights to
self-organization, to form, join, or assist any union, to
bargain collectively through any union or representative
of your choice as to wages, hours of work, and any
other term or condition of employment. You also have
the right, which WE WILL also respect, to refrain from
doing so.
All our employees are free to become or remain, or not
to become or remain, members of Retail Clerks Union
Local 725, or any other union.
CENTRAL HARDWARE
COMPANY
(Employer)
Dated By
493
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties represented, was held before
me in Indianapolis, Indiana, on January 29, 30, and 31,
and February 5, and 6, 1969, upon the General Counsel's
complaint' and amendment to complaint,, dated
respectively November 27, 1968, and January 11, 1969,'
and respondent's answer.
In general, the issues litigated were whether respondent
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (herein called the Act).
Particularly, the questions for decision are as follows:
1. Did respondent violate Section 8(a)(I) of the Act by
coercively interrogating employees?
2. Did respondent violate Section 8(a)(1) of the Act by
threatening, and promising benefits to, employees to
induce them to refrain from supporting, or becoming
members of, Retail Clerks Union Local 725, Retail Clerks
International Association, AFL-CIO (herein called the
Union)9
3. Did respondent violate Section 8(a)(I) of the Act by
its "no-solicitation" rules and by the manner in which
they were applied?
4. Did respondent violate Section 8(a)(1) of the Act by
causing the arrest, and threatening to cause the arrest, of
representatives of the Union?'
5. Did respondent violate Section 8(a)(3) and (1) of the
Act by laying off an employee?
Upon the entire record,' upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the able
briefs submitted by the parties, I make the following:
The complaint was issued on separate charges filed on August 21 and
October 18, 1968, by Retail Clerks Union Local 725, Retail Clerks
International Association , AFL-CIO
'During the trial the complaint and its formal amendment were amended
by substituting the name " Rene Cuvellier" for "Rene Caverlier" whenever
it appears in those pleadings
'Unless otherwise noted , all subsequent references to the complaint
include its amendment and all dates hereinafter mentioned without setting
forth a year fall within 1968
On respondent' s motion made at the conclusion of the General
Counsel's case-in-chief paragraph 5(d)(m) and (iv) which also alleged
independent violations of Section 8(axl) were dismissed , no evidence
having been offered by the General Counsel to support the former and the
latter being redundant
'Issued simultaneously is a separate order correcting the stenographic
transcript of this proceeding in several respects
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT"
I JURISDICTION
Respondent , a Missouri corporation whose principal
office is located in St . Louis, Missouri , operates several
retail hardware stores, two of which are located in
Indianapolis , Indiana.' During the year ending on
November 27, a representative period , respondent ' s gross
volume of business exceeded $500,000. In the same period
respondent purchased and received merchandise valued at
more than $50,000 from suppliers located in States other
than those in which it operated stores. Accordingly, I find
that respondent is engaged in commerce within the
meaning of the Act and that the assertion of jurisdiction
over this matter by the National Labor Relations Board
(herein called the Board ) is warranted Carolina Supplies
and Cement Co., 122 NLRB 88, 89; Catalina Island
Sightseeing Lines, 124 NLRB 813, 815.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
Briefly, this case concerns itself with events which
occurred during the Union's campaign to organize the
employees working in respondent's two Indianapolis
stores Among these, were a speech delivered to
respondent's employees by its vice president, respondent's
promulgation of two "no-solicitation" rules, its
interrogation of employees, the arrest in one of
respondent's stores of a union representative and threats
to have another arrested, and the layoff of an employee.
The complaint alleges, and the General Counsel
contends," that respondent violated Section 8(a)(1) of the
Act by threats and promises made by respondent's vice
president during the course of his speech, by its two
"no-solicitation" rules' and the disparate manner of their
application, by its interrogation of employees concerning
compliance with one of the rules and respecting matters
relating to the Union, by causing the arrest of a union
representative, and by threatening to have another
arrested. It is further alleged in the complaint, and
contended by the General Counsel, that by suspending an
employee td punish her for having violated one of the
"no-solicitation" rules claimed to be invalid, respondent
contravened Section 8(a)(3).'°
'Respondent 's motion to dismiss the complaint , made at the close of the
trial , upon which decision was reserved and all other motions upon which
decision was reserved are disposed of in accordance with the findings and
conclusions set forth in this Decision
'This case deals only with respondent 's Indianapolis stores
As the contentions of the General Counsel and the Union are in large
part similar, unless otherwise indicated they will be referred to hereinafter
as the General Counsel 's contentions
'As will be more fully set forth below , one of these rules excluded
nonemployee representatives of the Union from respondent ' s parking lots
The other applied to employees and was not limited to respondent's
parking lots
"In pertinent part these sections provide*
Sec 8 (a) It shall be an unfair labor practice for an employer -
(I) to interfere with, restrain, or coerce employees in the exercise of
For its part respondent denies that the speech given by
its vice president contained threats or promises of benefit.
Asserting that its "no-solicitation" rules were valid, or if
seemingly too broad not improperly enforced, respondent
argues that the Act was not violated by its promulgation
or enforcement of the rules, by its laying off an employee
for not having complied with one of the rules, or by the
interrogation through which it learned of the rule's
transgression. Insofar as the arrest and threatened arrest
are concerned respondent contends that it was not obliged
to permit union representatives to enter its stores; that it
did not want the union representatives in its stores; that
when they refused to leave upon request it threatened to,
and did, call the police to eject them; that one union
representative nevertheless remained in its store, and that
when a policeman arrived, he, on his own volition, without
being requested to do so by respondent, arrested the union
representative.
B. Facts and Conclusions Concerning Respondent's
Premises, its Employees and their Availabilitv for
Organizing Purposes, and the Union's Organizing
Campaign"
1. Respondent's stores and parking lots
Respondent operates two stores on offstreet enclaves in
outlying areas of Indianapolis One of its stores (herein
called the West Store) is located near the intersection of
West 38th Street and Lafayette Road. The other store
(herein called the East Store) is situated near the
intersection of East 38th Street and Shadeland Avenue.
The roads, which intersect near respondent's stores are
busy public highways" along which traffic moves at fairly
high rates of speed." There are no sidewalks alongside the
roads in question in the vicinity of respondent's stores.
Although employees are stationed in the sales areas of
respondent's stores, their main function is to advise
customers as to the nature and purpose of the
merchandise displayed for sale. Insofar as actual sales are
the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment to
encourage or discourage membership in any labor organization
Section 7 , insofar as relevant , provides as follows
Sec 7 Employees shall have the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection
"These findings and conclusions are being made here , at the outset of
this Decision, in order to furnish a frame of reference, within which to
consider respondent ' s "no-solicitation " rules To bring the rules,
themselves, into focus , in this connection , their provisions will be set forth
in this footnote even though it will be necessary to restate them later when
their validity will be discussed at length, at which time I will also take up
the parties' major arguments in this respect However, to the extent that
the contentions of the parties relate specifically to the findings and
conclusions here made they will be considered here, although they may
again be considered in another context The two rules in question follow
t "[N]o solicitation may be made on company premises for any
purposes without prior management approval Violations will result in
disciplinary action including the possibility of dismissal."
2. "[M]anagement [will] keep all union organizers off [company)
premises both inside and outside "
"Recent surveys made by Indiana state and county agencies show that
on weekdays between 8 am and 10 p in more than 29,000 vehicles pass
each of the street intersections near which respondent 's stores are located
"Posted speed limits of from 35 to 40 miles an hour are typical of the
streets in question
CENTRAL HARDWARE CO. 495
concerned, customers, in the main, serve themselves.
Shopping carts and baskets are provided in which goods
selected by customers may be carried to checkout lanes,
located near the store's front doors, which are manned by
employees It appears, therefore, that the hardware stores
are operated very much like the familiar self-service
grocery markets
In each of respondent's stores there are storage areas,
which customers do not enter. There are also lockerrooms
and lunchrooms set aside for use by employees during
their free time. Although customers do not, like
employees, eat in the West Store employee lunchroom
they do, from time to time, enter it for the purpose of
buying cigarettes and candy bars which are there offered
for sale 1d In addition to using the employee lunchrooms
and lockerrooms during their off-duty time employees
may, and do, eat their lunch on respondent's parking lots,
to be described below
Respondent leases its Indianapolis stores. Also under
lease to respondent at the site of each store are paved
offstreet areas used as parking lots. The major portion of
each lot is'directly in front of the store to which it is
adjacent, the remainder lying to one side of the store.
Each lot is large enough to accommodate about 350 cars
Employees who drive to work are required to park in
certain areas of these lots, generally those sections along
the side of the store in which they work.
The enclaves in which respondent's stores are located
also contain other business enterprises. Among these, at
the site of the West Store, are a restaurant, a loan
company, and a carpet store, each with its own parking
lot, much smaller in size than respondent's. At the East
Store site are an office building, an establishment at which
automobiles are washed, and a truck service station which
has its own parking space."
There are no fences- or gates around respondent's
parking lots, nor does respondent station guards there for
the purpose of refusing their use to anyone. There are,
likewise, no signs barring trespassers from the lots.
The areas which contain respondent's stores and the
other business enterprises described may be entered" from
their adjoining roads only at certain places. There is one
entrance to the West site from West 38th Street and two
from Lafayette Road. The East location may be entered
from Shadeland Avenue at several points, three of which
are directly in front of respondent's parking lot. It may
also be entered by means of an access road which runs
from respondent's parking lot to East 38th Street. At
some points at which automobiles enter and leave these
areas people may stand without danger from passing
traffic.
"Although not too clear from the record, it would appear that the
cigarettes and candy bars sold in the West Store employee lunchroom are
dispensed by vending machines
"Respondent asserts, despite the presence of other business enterprises,
some of which are retail in character , that the complexes in which its
stores are located are not shopping centers Accordingly, respondent argues
that Amalgamated Food Employees Union Local 590 v. Logan Valley
Plaza, 391 US 308, and Solo Cup Company, 172 NLRB No 110, on
which the General Counsel heavily relies in support of his claim that the
rule excluding nonemployee representatives of the Union from respondent's
parking lots is invalid , are inapplicable However, whether or not
respondent 's stores are in shopping centers is immaterial , inasmuch as the
Board , in Priced-Less Discount Foods. Inc , 162 NLRB 872, 874, equated
a single store parking lot to a shopping center parking lot
"The only fence on either of the locations is one maintained around its
property at the East site by the car washing establishment located there
"The entrances described in this paragraph are also the only exits from
2. Respondent's employees
Respondent took possession of its Indianapolis stores
on April 15. Between that date and June 3, when they
were opened for business, respondent hired employees and
was engaged in preparing to open its stores.
There are about 125 people working in each of the
stores This number has remained fairly constant since
respondent first occupied them
Most of respondent's employees live in various sections
of Indianapolis, a city whose population exceeds 476,000.
About 50 employees live in surrounding towns 18 The
average distance from these localities to the stores in
which employees living in them worked is about 20 miles
Several employees who live outside of Indianapolis have
rural route addresses. These do not locate the employee
concerned geographically and are difficult to find.
A few of respondent's employees walk to work. The
remainder arrive in automobiles driven either by
themselves or others. Although employees who drive to
work are required to leave their cars in certain specified
areas of respondent's parking lots, they are not limited in
their choice of the lots' entrances and exits. Consequently,
all are used by employees as their convenience dictates.
Respondent issues distinctive orange colored vests and
smocks to its employees. These have been worn by
employees since about June 3, the date on which
respondent's stores opened for business. In addition, they
wear name tags.
There are two newspapers of general circulation
published in Indianapolis, and respondent's merchandise
advertisements appear in these. Also published in
Indianapolis are some 40 so-called neighborhood
newspapers. There are 4 television, and about 15 radio
stations whose broadcasts are ordinarily able to be seen
and heard in the Indianapolis area.
In connection with its contention that several avenues
of communication with its employees in addition to
talking to them on the parking lot were open to the
Union, respondent would have me find that its employees
customarily read the two newspapers which carry
respondent's advertisements This finding, were I to make
it, would have to be based solely on an assumption and
opinion given by Charles Mercer, the Union's director of
organization, that retail employees "ordinarily read the
newspapers to watch the ads of the stores in which they
work so they're familiar with what's on sale and what
isn't on sale." While this opinion as to the reading habits
of retail employees may be well founded insofar as their
perusal of their stores' advertisements is concerned, I feel
that it is an insufficient basis for a finding that these
employees read other parts of the newspaper in which the
advertisement appears Accordingly, there being an
absence of actual evidence on the subject, I do not make
the finding suggested by respondent.
3. The Union's organizing campaign
The Union's organizing campaign began in the latter
part of May During its course the Union used several
methods of obtaining support among respondent's
employees.
the areas in question
"The findings respecting respondent 's employees are based upon its
payroll records for the period ending on June 15, which are in evidence as
G C Exh 6 There is no contention that the general situation portrayed
by these records did not obtain at any material time
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Representatives of the Union from time to time walked
through respondent's stores. After noting the appearance
and name tags of the employees, who could be recognized
by their distinctive vests and smocks, the Union's
iepresentatives spoke to them on the parking lots at the
beginning and end of the day and during their lunch
period and free time Employees who favored the Union
talked to their colleagues in the stores and also on the
parking lots. Based on information received from various
sources the Union compiled a list of names and addresses
of employees which, by July 22, was about 80 percent
complete. Using this list representatives of the Union
visited the residences of employees and there sought to
convince those whom they found at home of the benefits
of unionization
Respondent's "no-solicitation" rules prevented the
Union from continuing its store and parking lot
communication with employees. The rules, of course, did
not preclude the Union from pursuing other methods of
reaching employees with its message. These, as suggested
in Solo Cup Company, 172 NLRB No. 110, could have
included distribution of literature at the points at which
employees entered and left the parking lots; the use of
radio, television, and newspapers; meeting employees on
the streets of Indianapolis, where most of them lived; and
the continuation of visits to employees' homes.
Concerning the latter method, here; unlike the situation
which was present in Solo Cup, the Union had a fairly
complete list of employees' names and addresses and
representatives of the Union continued to visit the homes
of employees after respondent's "no-solicitation" rules
were announced. The principal problem which this
entailed, aside from the substantial difficulty of finding
the homes of employees who lived in rural areas
surrounding Indianapolis, was that the employees were
absent from their homes more often than not when the
Union's representative called. In this regard, Mercer, the
Union's director of organization, testified that a union
representative making a "home call . may have to go
back on an average [of] five to six times in order to
actually make contact with the person" sought.
Mercer's testimony was based on his general organizing
experience It does not appear from the evidence that he
visited the home of any employee of respondent. However,
Mark Kapetanakis, one of the Union's organizers, did.
The results which he obtained support Mercer's
conclusion. Of 50 to 60 employees at whose homes
Kapetanakis called, he succeeded in talking to from 7 to
10; the rest were out when visited by him.
Again unlike the situation which obtained in Solo Cup,
union representatives can, as I have found, safely stand at
some of the points at which automobiles enter and leave
the areas in which respondent's stores are located for the
purpose of distributing literature to, and otherwise
communicating with, respondent's employees. The Union,
however, did not engage in this practice
To have done so would have required the union
representative participating in this procedure to be able to
determine which of several entry or exit points would be
used by the employees, who could choose any, and to be
able to distinguish the cars in which employees ride from
those of other people driving through those points in time
to stop the employees' cars. Even were I to find that these
difficulties could have been overcome, which the evidence
does not seem to warrant, had the Union instituted the
program here under consideration it would have resulted
in lines of automobiles backing up into the parking lots
and traffic tieups on the surrounding roads.
Concerning the Union's use of newspapers, radio, and
television, there are, as I have already found, more than
40 newspapers published in Indianapolis, and 4 television
and some 15 radio stations whose signals can be seen and
heard there This being so, I find, as did the Board in
Solo Cup, that were the Union to attempt to
communicate with respondent's employees through these
channels it "would have a problem in deciding on the
appropriate stations or newspapers,19 and would not be
able to reach the employees effectively . . . through such
media." [Emphasis in original.]
In arriving at the foregoing conclusion in Solo Cup the
Board "assum[ed] that cost was no object " In the instant
case the evidence establishes that cost was, indeed, an
object. Respecting this, Mercer stated that the Union did
not use radio and television in its organizing campaign
because of the "cost factor, which is quite high [and] very
expensive in addition to not knowing which station to put
[the advertisement] on."
Insofar as meeting on the streets is concerned,
Indianapolis, although not as large as Chicago, the city in
which the events giving rise to the Board's decision in
Solo Cup took place, is, nevertheless, a substantial
metropolitan community In Solo Cup, the employees
concerned lived in and around Chicago Similarly, here,
respondent's employees live in various sections of
Indianapolis and in its surrounding towns. Accordingly, it
is quite unlikely that representatives of the Union would,
or could be expected to, meet any significant number of
respondent's employees on the street.
In a not too different context the Board in Solo Cup
distinguished the situation present there from the one
before the Supreme Court in N L R B v. Babcock &
Wilcox Company, 351 U.S. 105, 107. In Babcock &
Wilcox, a large percentage of the employees involved lived
in Paris, Texas, a city of 21,000 people Because of this
the Court was of the opinion that nonemployee union
representatives, barred by a "no-solicitation" rule from a
plant parking lot could reasonably be expected to continue
to avail themselves of other methods of imparting
information to the employees, which included "talking
with them on the streets of Paris." This distinction is
equally applicable here. I find, therefore, that the method
of communication between the Union and respondent's
employees here under discussion would be as impractical
as any of the others which have been considered.
Accordingly, I conclude that there are no reasonable
means available to nonemployee representatives of the
Union to reach respondent's employees with its organizing
message other than by having those representatives meet
them on respondent's parking lots.
C Facts Concerning Respondent's Alleged Unfair
Labor Practices Relating to its Rule Against
Solicitation by Employees and its Enforcement
In speeches delivered to respondent's employees on
June 13 by George Reed, its vice president," he
"In this regard , as Mercer , the Union 's director of organization , testified
"we have several radio stations in the Indianapolis area, around 15 at
least It would be hard to distinct [sic] which one radio station to put the
advertisement on " In this connection , see also my findings , set forth
above, concerning the Indianapolis newspapers in which respondent's
merchandise advertisements appear
"Reed gave the same speech twice at each of respondent 's stores, once
to full-time employees and once to part-time employees A copy of this
speech is in evidence as an attachment to G C Exh 2
CENTRAL HARDWARE CO. 497
announced respondent's "policy regarding solicitations on
company premises." This policy, which is still in effect, is,
as stated by Reed, that "no solicitation may be made on
company premises for any purpose without prior
management approval. Violations of the no solicitation
policy will result in disciplinary action, including the
possibility of dismissal." It seems clear from the penalty
provision of this "policy" that its applicability is limited
to employees 11
During the latter part of June, Larry Stuck, an
employee in respondent's West Store, notified a supervisor
that he had received a union authorization card from
Marilyn Ragle, another employee Within a short time
this matter was brought to Reed's attention.
Although Reed interrogated Stuck and Ragle
extensively concerning the place of the card's delivery to
Stuck, he was unable to establish that Ragle had given it
to Stuck in the store, as Stuck maintained during the
interrogation. However, Reed became convinced during
his questioning of Ragle that she had violated
respondent's "no-solicitation" rule in other respects== and
that punishment was required. Accordingly, on July 8,
Ragle was laid off for 3 days. At the time of her layoff
Ragle was given a paper entitled "NOTICE OF
DISCIPLINARY ACTION":3 which stated:
This is to record that [Marilyn Ragle] has violated the
Company's "no-solicitation" rule; and is hereby given a
disciplinary layoff of three (3) days, and a warning that
future violation of the rule will result in immediate
discharge without further notice.
While questioning Ragle concerning the authorization
card received by Stuck, Reed showed her a document
which had been circulated among, and signed by,
employees working in respondent's East Store. This paper,
which I shall for convenience refer to hereinafter as a
petition or as an antiunion petition, is addressed to Reed,
is undated, bears 97 signatures, and recites that the
subscribers "do not want the [Union] harassing [them]
any more [and] do not wish to join this union "30
In support of his contention that respondent's employee
"no-solicitation" rule was discriminatorily enforced, the
General Counsel, in effect, requests that I find that the
petition was circulated after June 13, the date on which
respondent's rule was announced; that it was circulated in
the store and there signed by employees in the presence of
a supervisor, and that no disciplinary action was taken
against those employees who circulated or signed the
petition All the findings sought by the General Counsel
concerning the petition. except with respect to the time of
its circulation and signing , are supported by a
preponderance of the evidence and are, therefore, made
Raymond Spears, upon whose testimony the foregoing
findings are based, was the only witness who gave
evidence as to the actual circulation and signing of the
petition. His testimony was not precise as to the date on
which these events occurred. In this regard he stated that
"to the best of [his] knowledge" he was asked to sign the
"As has already been set forth (see fn 11 ) respondent promulgated
another "no-solicitation" rule aimed at nonemployee representatives of the
Union . This rule will be discussed at length in a later portion of this
decision
"Reed 's conviction in this regard was based , he testified , on Ragle's
admission to him that she had "solicited people [although not Stuck]
on company time in the store "
"This document is in evidence as G C Exh 10
"This petition is in evidence as G C Exh 8
petition by a fellow employee "in the month of June
about three to four weeks" after he had been transferred
from the West Store, where he began to work for
respondent, to the East Store.
Spears was equally imprecise about the date of his
transfer to the East Store. He fixed that time, however, as
being in the "latter part of May," or about the "middle
[of May] or from there on " His final word on the subject
was that he started to work at the East Store some 3 or 4
weeks after he began to work at the West Store
Spears was as uncertain about his date of hire at the
West Store as he was about all the other dates he gave In
this respect, Spears was unable to recall when, exactly, he
started to work at the West Store, but stated that it was
in "the latter part of April."
The exact date on which the petition was circulated or
on which it was signed by Spears can not be determined
from the testimony he gave. The periods during which
these things occurred, can, however, be calculated by
substituting actual dates for the indefinite time spans
assigned by Spears to the events in question.
Reckoning on this basis, Spears started to work at
respondent's West Store between April 15 and April 30,
which interval would comprise, as he testified, "the latter
part of April." He was transferred to the East Store, as
he stated, 3 to 4 weeks later, or between May 6 and May
28. Finally, he related that in Jk:ne, about 3 or 4 weeks
after his transfer, or between June 1 and June 25, he
signed the petition As part of this period, within which he
signed the petition, included a substantial span of time
before June 13, when respondent's "no-solicitation" rule
was made known to its employees, I cannot find that the
petition was signed by Spears, or circulated, after that
d ate
D. Contentions and Concluding Findings as to
Respondent 's Employee "No-Solicitation" Rule
The General Counsel contends that respondent's
employee "no-solicitation " rule is invalid because of its
undue breadth and that by not penalizing the employees at
its East Store who circulated and signed the petition
respondent discriminatorily enforced its rule 25 Respondent
contends that the rule in question is privileged because of
the retail nature of its business ; that the evidence does not
establish that the rule was discriminatorily enforced; and
that Ragle's layoff for noncompliance with the rule does
not fall within the Act's proscription because the rule,
respondent claims, is valid . As will be shown below,
respondent's contentions and that of the General Counsel
concerning the discriminatory enforcement of the rule are
not well taken.
Unlike the situation obtaining in a factory, for
example, where a rule forbidding solicitation during
employees ' off-duty time is presumptively invalid,16 an
operator of a retail store is "privileged to promulgate a
rule prohibiting all union solicitation within the selling
areas of the store during both working and nonworking
hours." Montgomery Ward & Co, Inc, 145 NLRB 846,
848, modified in other respects , 339 F 2d 889 (C A. 6).
However a retail store rule prohibiting "solicitation in any
form . . . on store premises" is "unduly broad in scope"
and therefore violative of Section 8(a)(1) of the Act
because it forbids "solicitation during nonworking time
"The General Counsel seems to argue that by its discriminatory
enforcement of the rule respondent engaged in an unfair labor practice
separate and apart from its promulgation of the rule
"Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 617
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether on or off the selling floor and in or out of work
areas." Mock Road Super Duper, Inc., 156 NLRB 983,
984. _7
The validity of respondent's rule here under
consideration turns, therefore, on whether it bans
solicitation by employees off respondent's selling floors
during their nonworking time In this regard, even if the
lunchroom in respondent's West Store, in which only
employees eat, is considered as a selling area because
customers enter it from time to time to buy the cigarettes
and candy bars there offered for sale, there are other
portions of respondent's premises, clearly not used for
selling purposes, which would, nevertheless, fall within the
rules purview. Included among these are the lunchroom in
the East Store, employees' lockerrooms, storage areas
located off the sales floors, and the parking lots, in all of
which the rule, on its face, forbids solicitation by
employees regardless of whether they are actually
working.
Being thus unduly broad, respondent's employee
"no-solicitation" rule goes beyond the privilege set forth
in Montgomery Ward It is, therefore, invalid.
Having found that respondent's employee
"no-solicitation" rule is invalid, it follows that the
interrogation of Stuck and Ragle by Reed, respondent's
vice president, to determine whether the rule had been
complied with was violative of Section 8(a)(1) of the Act.
Pepsi-Cola Bottlers of Miami, Inc, 155 NLRB 527,
530-531. It also follows that Ragle's disciplinary layoff by
respondent because she allegedly failed to comply with the
rule was violative of Section 8(a)(3). Marlene Industries
Corporation, 166 NLRB No. 58.
As noted earlier, the General Counsel argues that
respondent separately violated Section 8(a)(1) of the Act
by its discriminatory enforcement of the rule. This
argument is based upon the circulation and signing of an
antiunion petition in respondent's East Store. As set forth
above, the evidence does not warrant a finding that the
circulation and signing of the petition occurred after June
13, the date on which respondent announced its employee
"no-solicitation" rule. This being so, I must reject this
argument.
In sum , therefore, I conclude that respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act by promulgating, maintaining, and
enforcing an unduly broad rule forbidding solicitation by
its employees, and by interrogating employees concerning
their compliance with this rule. I further conclude that
respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) by laying Ragle off
because of her claimed noncompliance with the rule.
Finally, insofar as respondent's employee
"no-solicitation " rule is concerned, I conclude that the
General Counsel has not sustained his burden of proving
by a preponderance of the evidence that respondent
"The Court of Appeals for the Sixth Circuit refused to enforce the
Board 's Order in Mock Road insofar as it dealt with the "no-solicitation"
rule because the court was of the opinion that there was insufficient
evidentiary support for the Board 's conclusion as to the nature of the rule
N L R B v. Mock Road Super Duper, Inc , 393 F 2d 432, 435 The court,
however , did not find fault with the principle enunciated by the Board. In
any event , as a Trial Examiner , it is my "duty to apply established Board
precedent which the Board or the Supreme Court has not reversed "
Prudential Insurance Company of America, 119 NLRB 768, 773, reversed
on other grounds 361 U S 477 As far as my research has disclosed the
precedent established by the Board in Mock Road has not been reversed
by either the Supreme Court or the Board
separately violated Section 8(a)(1) of the Act by enforcing
the rule in a discriminatory manner. I will, therefore,
recommend that paragraph 5(d), (d)(i), and (d)(ii) and the
relating portion of paragraph 8 of the complaint be
dismissed.
E Facts Concerning Respondent's Alleged Unfair
Labor Practices Relating to its Rule Against
Solicitation by Nonemployees and its Enforcement
About a month after respondent adopted its employee
"no-solicitation" rule it announced the promulgation of a
"no-solicitation" rule applicable to nonemployee
representatives of the Union. This was done by letter
dated July 15," distributed about 4 or 5 days later, in
which respondent's employees were informed by its
president that instructions had been issued to "our
Indianapolis management to keep all union organizers off
our premises, both inside and outside." Like respondent's
employee "no-solicitation" rule, this rule, too, is still in
force
Although by its terms respondent's nonemployee
"no-solicitation" rule is effective inside respondent's
stores, as well as outside, the evidence establishes that its
main thrust is to prevent nonemployee union organizers
from soliciting on behalf of the Union on respondent's
parking lots. To this end, respondent's officials, since July
22, have asked union representatives to leave its lots.
F. Contentions and Concluding Findings as to
Respondent's Nonemployee "No-Solicitation" Rule
Claiming that respondent's parking lots are generally
open to the public,29 and that confrontation between the
Union and respondent's employees on the parking lots is
the only reasonable method of solicitation available to the
Union, the General Counsel argues that respondent's
nonemployee "no-solicitation" rule is invalid. In support
of this argument the General Counsel relies principally on
Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, Inc, 391 U.S. 308, and Solo Cup Company,
172 NLRB No. 110.
Taking issue with the General Counsel's premise that
its employees are not reasonably within reach of the
Union except on the parking lots, respondent contends
that there are avenues of communication with its
employees readily available to the Union other than by
meeting them on the parking lots.30 Taking further issue
with the General Counsel, respondent asserts that its
stores are not located in shopping centers and that,
therefore, their parking lots cannot be deemed to be
generally open to the public. Accordingly, respondent
argues in support of the validity of its ban against
nonemployee solicitation that Logan Valley and Solo Cup
are inapposite and that the general rule expressed in
N.L R B. v. Babcock & Wilcox Company, 351 U.S. 105,
should be followed.
"A copy of this letter is in evidence as G C Exh 3
"It will be remembered in this connection , that I have already found
that there are no barriers , guards, or signs barring anyone from using
respondent 's parking lots
"As will be recalled , I have found against respondent on this point
However , as shall be shown, even had this issue been determined in
respondent 's favor it would not , in the circumstances of this case , require a
conclusion , as respondent argues, that its nonemployee "no-solicitation"
rule is valid
CENTRAL HARDWARE CO. 499
In determining the question of - the lawfulness of
respondent's rule barring nonemployee union organizers
from its parking lots the starting point for analysis is the
Supreme Court's decision in Babcock & Wilcox where the
legality of a similar proscription applicable to, a parking
lot adjoining a manufacturing plant was under
consideration There the Court noted" that "organization
rights" of employees, including their right "to learn the
advantages of self-organization" from nonemployee union
representatives, stem from "the same authority, the
National Government, that preserves [the] property
rights" of their employers. "Accommodation between the
two" rights, the Court went on to say, "must be obtained,
with as little destruction of one as is consistent with the
maintenance of the other."
Striking the balance made necessary by this formula,
the Court concluded" "that an employer may validly post
his property against nonemployee distribution of union
literature3J 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 distribution." But, the Court
went on to say,34 "if the location of a plant and the living
quarters of the employees place the employees beyond the
reach of reasonable union efforts to communicate with
them, the employer must allow the union to approach his
employees on his property." Finding that these conditions
did not obtain, the rule involved in Babcock & Wilcox
was not disturbed by the Court.
The general problem present in Babcock & Wilcox, but
in a different legal and physical setting, again came before
the Supreme Court in Amalgamated Food Employees
Union Local 590 v Logan Valley Plaza, Inc, 391 U.S.
308. Unlike Babcock & Wilcox, Logan Valley was not
concerned with the circumstances under which an
employer's rule excluding nonemployee union
representatives from an industrial plant parking lot could
with propriety intrude upon rights guaranteed by Section
7 of the Act. The issues in Logan Valley were broader.
They required a balancing of rights arising from private
ownership of property against rights of employees
guaranteed not only by statute but also by the
Constitution. -
Specifically, in Logan Valley the Court had to decide
whether a union had been properly enjoined from peaceful
picketing on a parking lot within the confines of a
privately owned shopping center, called Logan Valley
Mall, which invited public patronage. A store located in
the shopping center was the object of the picketing. The
pickets were hot employed in the store. They patrolled
near the store in an area of the shopping center parking
lot which was generally open to the'public and to which
the public had unrestricted access.
The sole ground urged for the affirmance of the
injunction was that the picketing constituted a trespass on
private property; i.e., the privately owned shopping center
and the parking lot on which it occurred. This argument
was not accepted. To do so, the Court commented, would
be to permit retail merchants whose businesses are located
in privately owned shopping centers, which it likened" to
"normal municipal business district[s]" unjustifiably to
"351 U.S 112-113
"351 U.S. 112
immunize themselves from lawful picketing "by creating a
cordon sanitaire of parking lots around their stores."36
Accordingly, the injunction was nullified. In doing so
the Court in Logan Valley, as it had done in-Babcock &
Wilcox, again struck a balance between rights granted to,
employees by statute and the Constitution and rights
flowing from the same sources generally enjoyed by their
employers. In this regard the Court stated:37
Therefore, as to the sufficiency of respondent's
ownership of the Logan Valley Mall premises as the
sole support of the injunction issued against petitioners,
we simply repeat what was said in Marsh v. Alabama,
326 U.S., at 506, "Ownership does not always mean
absolute dominion. The more an owner, for his
advantage, opens up his property for use by the public
in general , the more do his rights become circumscribed
by the statutory and constitutional rights of those who
use it."
The final case in this analysis is Solo Cup Company,
etc., 172 NLRB No. 110 Here the Board concluded that
a rule excluding nonemployee union representatives from
the parking lots of a privately owned industrial park was
invalid
For a proper understanding of the Board's rationale in
Solo Cup, account must be taken of the nature of the
premises involved. Notwithstanding its private ownership
the industrial park in question was open generally to the
public. Noting the absence of fences, gates, guards, or
signs prohibiting anyone from entering the property, the
Board stated that "even though the area may not be
classed as a fully `public' area, in view of the unlimited
accessibility to the area . . . it has become through custom
and use, a quasi-public area." Accordingly, the Board
found, as did the Supreme Court in Logan Valley with
respect to the privately owned shopping center there under
consideration, that the privately owned industrial park was
"clearly analogous to ... the normal municipal business
district."
In arriving at its conclusion in Solo Cup that the rule
barring nonemployee union representatives from the
industrial park was an unfair labor practice the Board
first applied the longstanding criteria enunciated in
Babcock & Wilcox. In this regard, the Board found that
the Union was unable "by `reasonable attempts' to reach
[the employees concerned] `through other available
channels of communications,' " and that the rule was
enforced in a discriminatory manner . For these reasons
the Board, in essence , held that the property, rights of the
employer in Solo Cup had to yield to the rights
guaranteed to his employees by Section 7 of the Act.
Upon reaching this result in Solo Cup, grounded on
Babcock & Wilcox, the Board could well have stopped,
but did not. It went further and assessed the impact of
Logan Valley, which had been decided by the Supreme
Court some 2 months earlier, on the situation then before
it. Having done this, the Board enunciated a new,
independent, and highly significant consideration to be
taken into account in balancing the respective rights of
employer and employee. Relying on the principles set
forth in Logan Valley, the Board held in Solo Cup,
separate and apart from its conclusions based on the
authority of Babcock & Wilcox, that where an employer's
private property has attained quasi-public status a rule
denying access to that property to a nonemployee union
"In context there appears to be no distinction between distribution , of "391 U.S 3I9
union literature and other forms of union solicitation . "391 U.S 325.
14351 U S. 113. "391 U.S. 325.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative for the purpose of soliciting on behalf of a
union is violative of Section 8(a)(l) of the Act. To this
end the Board stated:
There were no fences, gates, guards, or signs barring
trespassers or distribution of literature on the property,
all of which are general indications foreclosing the
access of private property to the public. Thus even
though the area may not be classed as a fully "public"
area , in view of the unlimited accessibility to the area
established by past practice it has become through
custom and use, a quasi-public area.
In the recent Logan Valley Plaza case, the Supreme
Court in an analogous situation, found that a privately
owned shopping center could not exclude nonemployees
who sought to peacefully picket and distribute literature
from the premises. In reaching such conclusion the
Court pointed out that the shopping center utilized its
premises or property as the "functional equivalent" of a
"normal municipal business district" and the "public
had unrestricted access to the property " The Court
also noted that the economic development of the United
States in the last 20 years, particularly in the area of
suburban growth and the advent of shopping centers,
would, if a contrary conclusion be reached, allow
businesses located in suburban shopping centers to
immunize themselves from all types of union campaigns
and prevent the "free expression and communication
that is the heart of the First Amendment." We find the
industrial park in the present case clearly analogous to
the privately owned suburban shopping center or the
normal municipal business district and similarly
conclude that Respondents cannot deny access to the
premises to union representatives, whether it be for
picketing or handbilling.
Accordingly, in determining whether an employer's rule
excluding nonemployee union representatives from his
property is valid the question of whether his employees
are otherwise within reasonable reach by the union has
significance. This factor, however, is not of paramount
importance in the case of parking lots, whether in
shopping centers or not.38 Of equal, if not of greater,
importance in view of constitutional implications, as Solo
Cup teaches, is whether the parking lot in question,
although privately owned, is quasi-public in character. If
that is the fact, the owner of the lot may not prevent
nonemployee agents of a union from communicating with
his employees on the lot even though they may be
otherwise reasonably available to receive the union's
message.
The parking lots here, like the premises in Solo Cup,
are accessible to the public without limitation. Also like
the property in Solo Cup, the parking lots here are
unfenced, unguarded, and there are no posted signs
barring anyone from the lots.
Accordingly, as the Board did in Solo Cup, I find that
respondent's parking lots have a quasi-public status. This
being so, I further find on the authority of Solo Cup that
respondent's rule excluding nonemployee representatives
of the Union from its parking lots is invalid.
I conclude, therefore, that by promulgating,
maintaining , and enforcing this invalid rule respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
"As I have already noted (see in 15, above), the Board does not
differentiate between shopping centers and single store parking lots
G. Facts Concerning Respondent's Alleged Violations
of Section 8(a)(1) of the Act Unrelated to the
"No-Solicitation" Rules
As set forth in the introductory portion of this Decision
the complaint alleges that respondent violated Section
8(a)(1) of the Act in several other respects. In this regard
it is asserted that respondent made promises and threats
to induce employees to refrain from supporting the Union,
interrogated an employee respecting matters relating to
the Union," caused the arrest of one union representative,
and threatened to have another arrested. Each allegation
will be separately discussed.
1. The promises and threats
It will be recalled that on June 13 George Reed,
respondent's vice president, made speeches to employees
in which he announced what I have called respondent's
employee "no-solicitation" rule. In the same speeches
Reed told his listeners that their "salaries and benefits ...
already exceed[ed] that which [was] currently being
offered to employees in comparable retail establishments
in Indianapolis." Reed also remarked, in this vein, that it
was respondent's feeling that its employees "are entitled
to more benefits than the [Union] has been successful in
obtaining from comparable retail stores in Indianapolis."
Woven into Reed's speech at this point were references
to what he called the Union's "propaganda" which,
apparently, contained statements of advantages ensuing
from union membership These, Reed said "would have to
be negotiated over a bargaining table." In this event, he
continued, "If [the Union] would be successful in leading
you down the garden path, then quite frankly all bets are
off and we start from scratch."
2. The interrogation
During October Marilyn Ragle4° wore a button issued
by the Union which, in effect, urged people to register for
the purpose of voting in the forthcoming presidential
election. Seeing this button, Rene Cuvellier, one of
respondent's supervisors, stated to Ragle, as she testified,
"I reckon you'd like to have the Union in here." Upon
receiving an affirmative response, Cuvellier said "they'll
never make it" because, unlike a union he belonged to in
California, the Union did not "have a dental plant [plan?]
here."
3. The arrest and threatened arrests
Mark Kapetanakis, who resides in Columbus, Ohio, is
employed as an organizer by the Retail Clerks
International Association, of which the Union is an
affiliate. Edward Stahl, who lives in the Indianapolis area,
occupies a similar position on the Union's staff. In about
mid-June Kapetanakis came to Indianapolis to assist the
Union in its cafnpaign to organize respondent's
employees.
"The interrogation allegation to be considered here appears in the
amendment to the complaint and does not relate to the interrogation
carried on by George Reed , respondent 's vice president , in connection with
the union authorization card received by Larry Stuck , one of respondent's
employees , as to which findings have already been made
"Ragle's layoff in July for allegedly violating respondent 's employee
"no-solicitation" rule has already been found to have been an unfair labor
practice
CENTRAL HARDWARE CO.
On July 22, after making calls at employees' homes,
Kapetanakis and Stahl met on the parking lot at
respondent's West Store. While walking toward the store
they were intercepted by Max Hagerman, respondent's
Indianapolis group manager, who told them not to enter
the store and to leave the parking lot." Refusing to
comply with Hagerman's direction, Kapetanakis said that
he was going into the store as a customer. Upon being
informed by Hagerman that his business was not wanted
and that "if [he] went into the store [Hagerman] had
orders to take action," Kapetanakis repeated that he "was
going in as a customer and [Hagerman] could do what he
had to do."'z Having said this, Kapetanakis entered the
store.
Although Kapetanakis told Hagerman that his entry
into the store would be as a customer and testified that he
"was going to look at some golf equipment," Kapetanakis
also testified that this was "not necessarily" all he
intended to do, or all that he actually did, in the store. In
this regard, as Kapetanakis further related, while in the
store he "looked to see who the employees [were]
facialwise, who [was] working and who [he could] home
call."
While Kapetanakis, the Union's representative, was
wandering around the store, an Indianapolis policeman
who had been sent for by Hagerman, respondent's group
manager, arrived. Hagerman having pointed Kapetanakis
out to the policeman, the policeman approached him,
asked him to leave the store, escorted him to the door,
and placed him in the rear seat of a marked police car
which was parked near the store's front door.
After a short wait, during which the policeman who had
walked out of the store with Kapetanakis conferred with
another of superior rank, Kapetanakis was told that he
was under arrest and a police van was called. Upon its
arrival Kapetanakis was led from the car in which he had
been sitting, placed in the van, which like the other police
vehicle was clearly marked for what it was, and driven to
a police station. All of this, from Kapetanakis' first
confrontation with the policeman in the store until he was
taken away in the police van, occurred in view of several
employees of respondent
In addition to Kapetanakis' arrest, Stahl, who like
Kapetanakis is a representative of the Union, was twice
threatened with arrest by officials of respondent in
respondent's West Store. The first incident of this nature
occurred on November 5, some 2 weeks after Stahl,
himself, signed the second charge in this case" which
alleged Kapetanakis' arrest as having been caused by
respondent in violation of Section 8(a)(1) of the Act.
On the day of the first threat Stahl was in respondent's
store for the purpose, he testified, of buying paint. He was
told, however, by Cuvellier, one of respondent's
supervisors, that respondent "didn't want [his] business
and to leave the store." Hagerman, respondent's group
"In its brief, respondent asserts that neither Kapetanakis nor Stahl ever
made known to any of respondent's management representatives that they
were agents of the Union Respondent further states in its brief that Stahl,
who had at an earlier time been employed by respondent , "was known only
as a former employee discharged for cause and Kapetanakis was
unknown " This, however , is not borne out of the evidence Hagerman,
himself, testified that he knew on July 22 that "Ed Stahl was associated
with the Union" and that he also knew that Kapetanakis "was associated
[with the Union] through Ed Stahl "
"These findings are based upon a synthesis of the testimony given by
Hagerman and Kapetanakis . The quotations are taken from Kapetanakis'
narration.
"The charge in question was docketed as 25-CA-3261
501
manager, joined Stahl and Cuvellier at this point and said
to Stahl, as he further related, "Ed, I want you to leave
the store or I'll call the police " Apparently, this
conversation did not take place within view or hearing of
any employee.
Having been ordered out of the store, Stahl, followed
by Hagerman, walked from the paint department toward
the checkout lanes located in front of the store, one of
which was manned by Ragle, an employee. As they
approached Ragle's lane Stahl asked Hagerman to repeat
what he had said in the paint department. Hagerman did
so using the same words he had used earlier This time,
however, they were heard by Ragle. In this connection,
Stahl candidly agreed that he asked Hagerman to repeat
himself in Ragle's presence "so she would hear what
[Hagerman] had to say." After this repetition Stahl left
the store.
Stahl returned on November 13. While in the sporting
goods department he encountered two supervisors, Phil
Bowers and Cuvellier. Stahl told both, as he recounted,
that he was in the store to "buy . . lighter fluid as a
customer." They replied that respondent "didn't want
[his] business [and] to leave the store." Cuvellier added
that unless Stahl did so the police would be called Stahl,
thereupon, left the store. As with Stahl's paint department
conversation with Cuvellier and Hagerman, respondent's
Indianapolis group manager, on November 5,' Stahl's
encounter with Bowers and Cuvellier on November 13
does not appear to have been seen or heard by any
employee.
H. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1) of
the Act Unrelated to the "No-Solicitation" Rules
Respondent contends, on brief, that the portion of the
speech of its vice president, Reed, including the "start
from scratch" phrase, was not given in a coercive
atmosphere, nor was there, on respondent's part, a
"background of anti- union sentiment or unfair labor
practices," and that, therefore, "there is no basis for
penalizing respondent on this issue." The General Counsel
argues that it is char from other remarks in Reed's
speech, that his "start from scratch" language is a
promise that existing benefits would be continued and
increased if respondent's employees refrained from
supporting the Union and also a threat that they would be
discontinued or diminished if the Union was supported.
Thus, the General Counsel contends, respondent has
violated the Act.
The expression "start from scratch," or words of
similar import, when applied by employers to bargaining
or to benefits which employees enjoy, or which they may
expect to obtain through membership in a labor
organization is not new in labor relations matters. "In the
context of . other substantial unfair labor practices
committed by [an employer, the words in question] imply
a threat of reprisal should ... employees select [ a] union;
[they are] thus coercive." Aerovox Corporation, etc., 172
NLRB No. 97. On the other hand, where "an
examination of [the employer's] contemporaneous
behavior" shows an absence of accompanying coercive
conduct "no unlawful meaning should be attached to the
words in issue ." Wagner Industrial Products Company,
Inc , 170 NLRB No. 157.
Accordingly, in determining whether the "start from
scratch" phrase used by Reed, respondent's vice president,
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was violative of Section 8(a)(1) of the Act reference must
be had to respondent's other conduct. If it includes
substantial unfair labor practices, then the expression in
question must be deemed to have taken on an aura of
coercion.
In this regard, it will be remembered that in the very
speech in which Reed uttered the "start from scratch"
words he also announced respondent's employee
"no-solicitation" rule, which I have found to have been
violative of the Act. A short time later respondent
interrogated two employees concerning an alleged
violation of the rule and laid off one, Ragle, because of
her claimed failure to comply with the rule. This conduct,
too, I have found to have been violative of the Act.
Finally, I have found that respondent's "no-solicitation"
rule relating to nonemployee representatives of the Union
was also violative of the Act. In the "context of [these]
other substantial unfair labor practices" committed by"
respondent, I find that Reed's "start from scratch"
language constituted, as the General Counsel argues, both
a threat of reprisal and a promise of benefit designed to
induce employees to refrain from supporting the Union
As such, the expression under consideration was coercive
within the meaning of Section 8(a)(1) of the Act.
The second item in this category of unfair labor
practices allegedly committed by respondent is the
statement made to Ragle, an employee of respondent, by
Cuvellier, a supervisor, that he thought that Ragle would
"like to have the Union in here." The General Counsel
argues that because Cuvellier's statement had the effect of
"causing [Ragle] to declare [her] position" concerning the
Union "Respondent thereby violated Section 8(a)(l) of the
Act." Ragle was, indeed, caused by Cuvellier's statement
to declare her position concerning the Union. I am not
persuaded, however, that by causing her to do so
respondent violated Section 8(a)(1).
In Southern Cotton Oil Crude Mill, etc, 144 NLRB
959, -965, relied on by the General Counsel, it was stated
that a supervisor's "remark [which] cause[d] an
[employee] to declare his position . would not be
coercive standing alone." What moved the Board to find
the remark there under consideration to be coercive was
another statement in the conversation between the
supervisor and the employee in which the former
"indicat[ed] that the job prospects of union adherents
were not bright "
No such facts appear here The balance of the
conversation in question consisted of an innocuous
comment by Cuvellier that the Union would "never make
it" not because of something respondent might do, but
because the Union lacked a "dental plant [plan?]."
The last items for consideration are the arrest and
threatened arrest, respectively, of Kapetanakis and Stahl,
organizers for the Union. Claiming that respondent knew
that Kapetanakis had entered its store as a customer, the
General Counsel argues in his brief that respondent
violated Section 8(a)(1) of the Act when it caused his
arrest "in front of its employees." The General Counsel
makes a similar argument with respect to respondent's
threats to cause Stahl's arrest.
"Aside from respondent ' s other unfair labor practices, the substantiality
of an unfair labor practice involving a discriminatory deprivation of
employment , as in Ragle's case, cannot be gainsaid It "goes to the very
heart of the Act." N L R B v. Entwistle Manufacturing Company, 120
F.2d 532, 536 (C A 4) This is not to say that I consider respondent's
other unfair labor practices to be unsubstantial.
In Heck's Inc., 156 NLRB 760, 761, modified in other
respects 386 F.2d 317 (C.A. 4), cited by the General
Counsel to support his position, the Board found a
violation of Section 8(a)(1) by an operator of a retail store
who, "in front of its employees, ordered a union
representative to leave [its] store although he had entered
the premises to do business as a customer," and, as here
in the case of Kapetanakis, called upon the police to
enforce its order. The touchstone for the Board's decision
in Heck's is the finding that the union representative there
"entered the premises to do business as a customer." Such
a finding, insofar as Kapetanakis is concerned, is not
warranted here. Although Kapetanakis told Hagerman,
respondent's Indianapolis group manager, that he, was
"going [into the store] as a customer," this, in my
judgment, was nothing more than a ruse to overcome
Hagerman's objections to his entering the store.
Two facts fortify my opinion in this regard. The first is
that Kapetanakis came to Indianapolis from his home in
Columbus, Ohio, to assist the Union in organizing
respondent's employees The second is that immediately
before arriving at respondent's West Store on the day in
question Kapetanakis, accompanied by Stahl, another
representative of the Union, had been making calls at
employees' homes. Under these circumstances it strains
credulity to accept at face value Kapetanakis' statement to
Hagerman that he intended to enter the store "as a
customer."
On the other hand, I am impressed with Kapetanakis'
admission that while in the store he "looked to see who
the employees [were] facialwise, who [was] working and
who [he could] home call " In the face of this testimony,
to believe that Kapetanakis was in the store as a customer
rather than as an organizer for the Union would be to
exalt form, i.e, what Kapetanakis told Hagerman, over
substance; i.e , what Kapetanakis actually did during his
tour of the store. I, therefore, find that Kapetanakis was
in respondent's store as an organizer for the Union and
not as a customer.
My opinion is the same insofar as it concerns Stahl, a
union representative who was twice threatened with arrest
unless he left respondent's West Store. Much need not be
said about the second incident, which took place on
November 13. Having found that it did not occur within
the sight or hearing of employees, even if Stahl were, in
fact, a customer at the time, respondent's order that he
leave the store coup!°d with a threat to call the police
unless he complied would not have been violative of
Section 8(a)(1) of the Act. Priced-Less Discount Foods,
Inc, 162 NLRB 872; Heck's Inc., 156 NLRB 760, 761.
In the background of the first incident involving Stahl
was the Kapetanakis affair, which, from the time he was
first approached by the policeman in the store until his
removal in the police van, was witnessed by employees.
This gave rise to the charge, signed by Stahl, himself,
alleging Kapetanakis' arrest as an unfair labor practice.
Some 2 weeks after he signed the charge Stahl went
into respondent's West Store, ostensibly to buy paint.
Upon seeing Stahl, Hagerman, respondent's Indianapolis
group manager, ordered him to leave the store and
threatened to call the police if he did not do so. No
employees being present in the paint department at the
time, Stahl maneuvered Hagerman to a point in the store
at which an employee was on duty. In her presence and,
as he admitted, "so that she would hear" Stahl had
Hagerman repeat what he had earlier said in the paint
department.
CENTRAL HARDWARE CO. 503
A customer, it seems to me, would not have acted in
this manner It is clear to me that the purpose of Stahl's
ploy was to obtain an employee witness to Hagerman's
threat to have police eject him from the store if he did not
obey the order to leave.
Whether Stahl sought by this to create an independent
incident similar to the one which concerned Kapetanakis,
or to lend support to the charge he signed respecting that
matter, or whether he had still another object in mind is
of no moment. What is important is that the entire
complex of events convinces me that Stahl, like
Kapetanakis, did not enter respondent's store at the time
in question as a customer, but as a representative of the
Union.
Having found that neither Kapetanakis nor Stahl "had
entered Respondent's premises to do business as a
customer" as the complaint alleges, I further find that the
manner in which their removal was accomplished was not
violative of Section 8(a)(1) of the Act. See, in this
connection, Super X Drugs of West Virginia, Inc , 169
NLRB No. 42, and Meier & Frank Company, Inc., 89
NLRB 1016, 1018.
In sum, respecting the allegations of the complaint not
directly related to respondent's "no-solicitation" rules, I
conclude that respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by the
speech given by Reed, its vice president, insofar as it
contained threats of reprisal and promises of benefit to
induce employees to refrain from becoming members of,
or supporting, the Union.
I further conclude that respondent did not engage in
unfair labor practices within the meaning of Section
8(a)(1) by its interrogation of Ragle, one of its employees,
during October; by ordering Kapetanakis and Stahl,
representatives of the Union, to leave its West Store, by
causing the arrest of Kapetanakis, or by threatening to
cause the arrest of Stahl. I will, therefore, recommend
that the pleading entitled "Amendment to Consolidated
Complaint," and paragraph 5(h), (j), (k), and the relating
portions of paragraph 8 of the complaint be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities to the extent found violative of
the Act occurring in connection with its operations set
forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act, my Recommended Order will direct respondent
to cease and desist therefrom and to take such affirmative
action as will effectuate the policies of the Act. In this
connection , inasmuch as respondent has already reinstated
Ragle respondent will be required only to make her whole
for loss of earnings she may have suffered by the
discrimination practiced against her . Any backpay found
to be due shall include interest in the amount and manner
provided for in Isis Plumbing & Heating Co., 138 NLRB
716.
As an alternative to its claim that its employee
"no-solicitation" rule was privileged respondent , claiming
that the rule was not improperly enforced , argues, on
brief, that for this reason "no remedy is indicated." The
short answer to this argument is found in Great Atlantic
& Pacific Tea Company , Inc., 162 NLRB 1182, 1184,
1189. There, notwithstanding the fact that an invalid
"no-solicitation" rule had not been enforced at all, a
remedial order was entered.
Accordingly, my Recommended Order will contain
remedial provisions relating to respondent's
"no-solicitation" rules. It will also contain , in view of the
nature and extent of respondent ' s unfair labor practices,
broad cease-and -desist provisions.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following-
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a rule
prohibiting employees from soliciting any other employee
on behalf of the Union in nonselling and nonworking
areas of its retail stores during nonworking time
respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4 By interrogating Larry Stuck and Marilyn Ragle,
employees of respondent, concerning their complaince
with the rule described in Conclusion of Law 3, above,
respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. By laying off Marilyn Ragle, an employee of
respondent, on the ground that she failed to comply with
the rule described in Conclusion of Law 3, above, thereby
discouraging membership in the Union, respondent has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act
6. By promulgating, maintaining, and enforcing a rule
prohibiting nonemployee representatives of the Union
from appearing on parking lots maintained by respondent
adjacent to its retail stores and there soliciting employees
on behalf of the Union respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. By promising employees that the benefits they
enjoyed would be increased to induce them to refrain from
becoming members of, or assisting, the Union respondent
has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. By threatening employees that the benefits they
enjoyed would be discontinued or diminished if they
became members of, or assisted, the Union respondent
has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
9. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by
disparately enforcing the rule described in Conclusion of
Law 3, above.
10. Respondent's interrogation of Marilyn Ragle, one
of its employees, during October 1968 was not coercive
and respondent did not thereby engage in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by
ordering Mark Kapetanakis, a representative of the
Union, to leave its store, or by causing him to be arrested
and removed from its premises in a police van.
12. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by
ordering Edward Stahl, a representative of the Union, to
leave its store, or by threatening to call the police to
enforce its orders.
13. The unfair labor practices engaged in by
respondent, as set forth in Conclusions of Law 3, 4, 5, 6,
7, and 8, above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, I hereby issue the
following:
RECOMMENDED ORDER
Central Hardware Company, its officers, agents,
successors, and assigns , shall:
1 Cease and desist from:
(a) Promulgating, maintaining, enforcing, interrogating
any employee concerning, or laying off, discharging, or
otherwise disciplining any employee for failure to comply
with, any rule prohibiting any employee from soliciting
any other employee on behalf of Retail Clerks Union
Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization, in nonselling
or nonworking areas of its retail stores during the
nonworking time of both.
(b) Promulgating, maintaining , or enforcing any rule
prohibiting nonemployee representatives of Retail Clerks
Union Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization, from
appearing on the parking lots adjacent to its retail stores
and there soliciting employees on behalf of Retail Clerks
Union Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization.
(c) Promising employees benefits, or threatening them
with any form of reprisal, to induce them to refrain from
becoming members of, or assisting, Retail Clerks Union
Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization.
(d) Discouraging membership in Retail Clerks Union
Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization, by
discriminating against employees in regard to hire or
tenure of employment or any term or condition of
employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to
self-organization, to form, join, or assist Retail Clerks
Union Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
or to engage in any concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the National Labor Relations
Act, as amended, or to refrain from any or all such
activities except insofar as these rights could be affected
by any contract with a labor organization, if validly made
in accordance with said Act, whereby membership therein
is a condition of employment after the 30th day following
the date of such contract or the beginning of such
employment, whichever is later.
2. Take the following affirmative action which, it is
found , will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Revoke and withdraw its rule, announced in
speeches to employees delivered on or about June 13,
1968, by George Reed , its vice president , or any prior or
subsequent rule, insofar as any said rule prohibits any
employee from soliciting any other employee on behalf of
Retail Clerks Union Local 725, Retail Clerks
International Association , AFL-CIO, or any other labor
organization , in nonselling or nonworking areas of its
retail stores during the nonworking time of both.
(b) Revoke and withdraw its rule, announced in letters,
dated July 15, 1968, addressed , and later delivered, to
employees , or any prior or subsequent rule prohibiting
nonemployee representatives of Retail Clerks Union Local
725, Retail Clerks International Association , AFL-CIO,
or any other labor organization , from appearing on the
parking lots adjacent to its retail stores and there
soliciting employees on behalf of Retail Clerks Union
Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization.
(c) Make Marilyn Ragle whole, in the manner set forth
in the section of this Decision entitled "The Remedy," for
any loss of earnings she may have suffered by reason of
the discrimination practiced against her.
(d) Preserve and, upon request , make available to the
National Labor Relations Board or its agents, for
examination and copying , all payroll records, social
security payment records , timecards , personnel records
and reports , and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at each of its Indianapolis stores copies of the
attached notice marked "Appendix .11 41 [Board's Appendix
substituted for Trial Examiners .] Copies of said notice, on
forms provided by the Regional Director for Region 25 of
the National Labor Relations Board, after being duly
signed by respondent 's authorized representative , shall be
posted by respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by respondent to insure that said notices are not
altered , defaced , or covered by any other material
(f) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision, what steps
respondent has taken to comply herewith °6
IT IS FURTHER ORDERED that the pleading entitled
"Amendment to Consolidated Complaint " and the
complaint be, and they hereby are , dismissed insofar as
they allege unfair labor practices not specifically found
herein.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps respondent
has taken to comply herewith "