Monogram Models, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1968

170 N.L.R.B. 636 (N.L.R.B. 1968)

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monogram Models , Inc. and District No. 8, Interna-
tional Association of -Machinists and Aerospace
Workers, AFL-CIO. Case 13-CA-7839
March 21, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING-
AND ZAGORIA
On November 30, 1967, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding,_ finding that the Respondent` had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief in
answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner, as modified herein.
The Trial Examiner found, and we agree, that the
Respondent interfered with the distribution of
union literature by nonemployee union organizers
on the public highway at the entrance to Respon-
dent's plant, in violation of Section 8(a)(1) of the
Act. In so finding, we rely on the admitted facts'
that on various dates in January, February, and
April 1967, Respondent interfered with the Union's
distribution of union literature to Respondent's em-
ployees at the intersection of Waukegan Road and
Respondent's south entrance; that Respondent
requested and secured the support of local police to
force the removal of the union agents who were dis-
' Although the Respondent admitted the facts set forth herein, it denied
the commission of unfair labor practices
2 Contrary to the Trial Examiner , there is no link fence running along the
Western boundary of Respondent 's property facing Waukegan Road
3In these circumstances , we find it unnecessary to rule on the alternate
finding of the Trial Examiner that the Respondent 's conduct would have
tributing union literature at this entrance to
Respondent's, parking slot; that Respondent's Pre-
sident Jack Besser threatened the Union's or-
ganizers with arrest and prosecution for criminal
trespass if they persisted in distributing' union litera-
ture at the entrance to that parking lot; and that
Respondent's President Besser, while awaiting the
arrival of local police, remained standing about 30
feet from the union organizers in full view of em-
ployees entering and leaving the Respondent's
plant.' The parties stipulated that at the above
times, the union organizers were standing at the
point designated as the shoulder of Waukegan
Road adjacent to the stop light located at the inter-
section of Waukegan Road and the 'entrance to
Respondent's private property which was subject to
an easement for purposes of a public highway.'
We find, however, that a preponderance of the
evidence fails to support the Trial Examiner's find-
ing that the Respondent committed a separate addi-
tional violation of Section 8(a)(1) of the Act by en-
gaging in surveillance, and we shall grant the
Respondent's motion to dismiss the complaint in
this respect.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Monogram Models, Inc., Morton Grove, Illinois, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Delete the words "solicitation of employees
and the" from paragraph 1(a) of the Order.
2. Delete from the Order paragraph 1(b);
renumber paragraph 1(c) as 1(b).
3. Delete the words "solicit or" from the first in-
dented paragraph of the notice.
4. Delete the entire second indented paragraph
of the notice.
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. -
been unlawful even if the union organizers had been distributing literature
on the Respondent's private property not subject to a public easement for
highway purposes Cf. N L.R.B. v. Babcock & Wilcox Co , 351 U S 105
' Milco, Inc, 159 NLRB 812, Hunt Electronics Company, 146 NLRB
1328 The Respondent 's motion for summary judgment and to dismiss the
complaint is in all other respects denied
170 NLRB No. 84
MONOGRAM MODELS, INC. 637
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On charges filed
April 17, 1967, the General Counsel issued his
complaint on June 16, 1967, against Respondent
herein alleging violations of Section 8(a)(1) of the
Act by Respondent's interfering with and keeping
under surveillance the distribution of handbills by
union representatives in front of Respondent's
plant. By its duly filed answer, Respondent ad-
mitted various facts with regard to jurisdiction,
status of the Union as a labor organization, and an
allegation that Respondent's president was its
-agent, but denied the commission of any unfair
labor practice.' The matter came on for hearing be-
fore me on October 11, 1967. All parties were
represented and had an opportunity to introduce
evidence, examine and cross-examine witnesses,
argue orally on the record, and file briefs. Oral ar-
gument was waived by the parties. Briefs received
from the General Counsel and the Respondent have
been duly considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation , manufac-
tures model hobby products and related items and
annually sells its products , valued in excess of
$50,000, in interstate commerce to places outside
the State of Illinois . Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
District No. 8, International Association of
Machinists and Aerospace Workers, AFL-CIO,
hereinafter called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent's, plant is situated in the village of
Morton Grove, Illinois, a suburb of Chicago, on
Waukegan Road at the intersection of Caldwell
Avenue. Respondent's site abuts Waukegan Road
and Caldwell Avenue for a distance of approxi-
mately 480 feet. The western boundary of Respon-
dent's property is the center line of Waukegan
Road.'
The westerly 50 feet of Respondent's property is
subject to a permanent easement for purposes of a
public highway. At a point a few feet east of the
paved roadway on the northern corner of Respon-
dent's property and at a point about 10 feet from
the paved roadway on the southern boundary of
Respondent's property are entrance driveways. A
chain-link fence runs along Respondent's western
boundary, 40 feet east of the edge of the easement
and 10 feet into it. On the inside of the chain-link
fence along Waukegan Road is parking for em-
ployees and visitors.
On the north, south and east boundaries of
Respondent's property are chain-link fences sur-
mounted with three strands of barbed wire at a
height of 7 feet. The property to the south and to
the east of Respondent's is public forest preserve, a
primitive recreation area overgrown with trees and
brush. To the north of Respondent's property is a
plant of the Illinois Bell Telephone Company.
Between the plant building and the property line on
the south- of Respondent's property is additional
employee parking, and the employee plant entrance
is located on that side.
The northern roadway into Respondent's proper-
ty is clearly marked "exit only"; the southern road-
way is marked "Monogram entrance-Shipping, and
Receiving- Visitors please park in North lot. ' At-
tached to the fence on the sides abutting the forest
preserves, i.e., the south and east borders of
Respondent's property, are signs which state
"Warning keep out. Private property. Area
patrolled, violators will be prosecuted."
Respondent, by an amended answer filed at the
hearing, admitted the allegations of the complaint
that on January 12, February 7, and April 12,
Respondent interfered with the Union's distribution
of union literature- to Respondent's employees at
the intersection of Waukegan Road and Respon-
dent's south entrance; that on January 12 and April
12 Respondent requested and secured the support
of local police to force the removal of the union
agents who were distributing union literature from
the entrance to Respondent's parking lot; that on
February 3 Respondent President Jack Besser
threatened the Union's organizers with' arrest and
prosecution for criminal trespass if they persisted in
distributing union literature at the entrance to that
parking lot; and that on April 12 Respondent, while
awaiting the arrival of local police and in full view
of the employees, kept under surveillance the union
representatives who "sought to distribute union
literature to the employees entering and leaving the
Respondent's property.
The General Counsel contends that by right of
the easement for public highway purposes of the
westernmost 50 feet of Respondent's property, the
An amended answer, filed at the hearing, is discussed below. the property line runs along the center line of Caldwell Avenue into which
' A plat stipulated in evidence indicates that the southernmost third of Waukegan Road joins at an angle of approximately 25 degrees
638 DECISIONS OF NATIONAL
union agents had a right to distribute handbills at
the entrance to Respondent's parking lot3 and that
Respondent, by its acts in ejecting the Union's
agents and keeping -them under surveillance, vio-
lated Section 8(a)(1) of the Act. In the alternative,
General Counsel contends that in view of all the
circumstances , even if the Union's agents did not
enjoy a legal right to be where they were, under the
rule established in Babcock & Wilcox Company, 351
U.S. 105, there were no -other reasonable channels
by which the nonemployee union organizers could
reach the employees, therefore the Board should
require Respondent to permit the Union's or-
ganizers to distribute their material at the site
where they attempted to do so.
The Respondent contends that the easement for
highway purposes is confined strictly to the vehicu-
lar use of the highway and for no other purposes
whatsoever except those that might be intended for
an emergency nature to the utilization of that pro-
perty for purposes of public highway. Respondent
additionally contends that the Union had reasona-
ble channels of communication available to it
where it can utilize its nonemployee organizers to
contact Respondent's employees at some point
other than Respondent's private property, where-
fore the Babcock & Wilcox rule is not applicable to
the situation with which we are here faced.
Discussion and Conclusions
The general rule and the rule in Illinois4 is that an
owner of land abutting a highway or street with a
present subsisting ownership of the street subject to
an easement has full dominion and control over the
land embodied in the easement and all the rights of
an absolute owner of the soil subject only to the
easement and servitude in favor of the public and
may use the land for his own purposes in any way
not inconsistent with the public easement. The
right acquired by the public by such an easement is
ordinarily a mere easement of passage over it with
the powers and privileges incident thereto. But the
adjoining landowner, i.e., the owner of the fee, has
no greater rights with regard to the easement than
has any other member of the public. Any person
who is on the ground for a purpose other than that
of using it as a highway is a trespasser against the
owner.
In addition to the primary use of a highway for
purposes of travel and transportation by the public
and uses incidental thereto, highways may also law-
fully be used for purposes other than travel and
' The parties stipulated that the union agents took their positions outside
the plant gate at a point approximately 10 to 15 feet from the paved
highway, which was clearly within the easement
' Sears v Chicago , 247 111 204, 93 N.E. 158, 25 Am Jur , Highways, Sec
135.
s Tacoma Safety Deposit Co v Chicago, 247 III. 92, 93 N.E. 153.
LABOR RELATIONS BOARD
transportation which are conducive - to, the public
convenience , tend to make them of greater utility
and convenience to- those who legally have a right
to their use , and are not inconsistent and incom-
patible with the reasonably free passage over them
of whoever has occasion to travel upon them.' An
abutting owner , even though he owns the fee of the
highway , cannot object to the use of it which is in-
cident to its primary use unless it constitutes an ad-
ditional servitude or otherwise causes him special
injury-' -
The use ' of highways as a place for the prosecu-
tion of a ' public business for gain is generally recog-
nized as a special or extraordinary use which the
controlling authority may prohibit or regulate as it
deems proper.' But the power of the municipality
to regulate or prohibit distribution on its streets of
papers or articles is limited to such power given to
it by its charter or by the ordinary police powers of
the State . Such limitations can be justified only
where they are necessary for the protection of the
public health , morals , or safety , reasonable in their
requirements and nondiscriminatory in their opera-
tion . And it has been declared that such regulation
may not go to the extent of abridging the constitu-
tional right of freedom of speech and of the press.'o
The public easement is coextensive with the
limits of the highway and extends to its whole sur-
face , so a person is entitled to free and unob-
structed passage over any and every portion thereof
not in use by other travelers." It includes the side-
walk space as well as that space paved for vehicular
traffic.12
The distribution of printed material is protected,
both under Article 1 of the United States Constitu-
tion which provides that "Congress shall make no
law ... abridging the freedom of speech , or of the
press ," etc., which has been held to secure this
privilege to all persons by the 14th Amendment to
the Constitution (Lovell v. City of Griffin, 303 U.S.
444). The constitution of Illinois is even more far-
reaching than that of the Constitution of the United
States in providing that every person may speak
freely , write , or publish- on all subjectsi3 and ac-
cordingly the distribution of handbills on the public
streets may not be prohibited by municipal or-
dinances.14
In Marshall Field & Company , 98 NLRB 88, the
Board , applying the "department store rule" found
that a ban on solicitation by Respondent in the
private street running out of doors on the Respon-
dent's premises was unlawful . The' circuit court
reversed the Board in its application of the so-
25 Am. Jur., Highways , See. 191.
" Lovell v. Griffin, 303 U S 444; 127 ALR 962 etseq.; City of Chicago v
Schultz, 173 N E. 276.
" 25 Am Jur., Highways, Sec 166 Smith v. McDowell, 148 Ill. 51, 35
NE.141
12 Horn v The City of Chicago, 403 111. 549, 87 N.E.2nd 646; Tacoma
625 Am Jur, Highways, Sec 137 Safety Deposit Co. v City of Chicago, supra
' 25. Jur , Highways, Sec 163, 168. " Village of South highland v. Stein, 373111.472, 26 N E 2nd 868.
8 25 Am Jur., Highways, Sec 173 " Marsh v Alabama, 326 U S 501, Schneider v State, 308 U S 147.
MONOGRAM MODELS, INC. 639
called department store rule, but as to the portion
of the Board Order referring to the private street,
Holden Court, stated:
This is primarily a working area used occa-
sionally by employees and customers. How-
ever, it does partake of the -nature of a city
street, even though owned by the Company,
and we think there is substantial evidence to
sustain the findings of the Board with respect
to Holden Court.
Accordingly, the circuit court revised the Board's
Order and inserted a paragraph reading "1(a)
prohibiting union organizers from soliciting on be-
half of a union in petitioner's private street, known
as Holden Court, where the employees involved are
on non-working time." In view of the circuit court's
rejection of the department store rule, I view its ac-
tion with regard to Holden Court as the application
by that circuit of the general rule protecting the
right of solicitation and distribution of printed
material on what is essentially a public easement
for street purposes, although privately owned.15
Applying the principles quoted above to the facts
in the instant case, it is clear that the General
Counsel must prevail. The union agents' attempts
to distribute union handbills at the entrance to
Respondent's plant were clearly on that portion of
Respondent's property which had been impressed
with an easement for highway purposes. There is no
evidence that the union agents engaged in any ac-
tivities which were immoral or unlawful, or trans-
gressed Respondent's right either as a portion of
the public to the public highway or as an abutting
property owner, or that the use of the portion of
the public highway by the union agents interfered
with the rights of the public in any respect.
The Board has held that it is a violation of Sec-
tion 8(a)(1) to interfere with nonemployee union
representatives in their solicitation or distribution
of written material.18 The interference in the instant
case was stipulated by Respondent. I therefore find
that Respondent is in violation of Section 8(a)(1)
of the Act by the interference with the union
representatives, by its resort to police to remove
them from the public highway in front of Respon-
dent's plant, and by its surveillance of the union
representatives and the employees to whom the
representatives were seeking to distribute union
literature on the public highway.17
In view of my conclusions above I deem it un-
necessary to explicate my opinion that the General
Counsel's alternative theory, in the event that a
contrary conclusion is reached on the theory
discussed above, is well taken. Were I to reach it I
would find that under the rule set forth in Babcock
& Wilcox, supra, the Union has no reasonable ac-
cess to Respondent's employees other than that at-
tempted by the Union in handbilling at the gate.
CONCLUSIONS OF LAW
1. Respondent is an employer within the mean-
ing of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with the distribution of leaflets
and handbills by nonemployee union organizers on
the public highway in front of Respondent's plant
and by engaging in surveillance of the employees
and union organizers while the union organizers
were distributing or attempting to distribute hand-
bills to said employees, Respondent has interfered
with, restrained, and coerced its employees in the
exercise of their rights guaranteed in the Act,
thereby engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1)
and 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices, my Recommended Order
will provide that Respondent cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, I make
the following:
RECOMMENDED ORDER
Monogram Models, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with agents of District No. 8, In-
ternational Association of Machinists and
15 Marshall Field & Co v N L R B , 200 F 2d 375, VIII Court Decisions
NLRA, 558, 565
" Bowntar Instrument Corporation, 124 NLRB 1, United Fireworks Mfg
C o , Inc, 1 18 NLRB 883; Fashion Fair, Inc, etc., 159 NLRB 1435
" Respondent's reliance on the provisions of the Illinois statutes, and
especially on chapter 95 1/2, section 124 of the Illinois Revised Statutes is
misplaced. That section limits the use of private property "used by the
public for purposes of vehicular travel by permission of the on ner and not as
a matter of right " It has no application to a situation such as that involved
here, where the real property in question is used by the public as a matter
of right by the action of the easement with which the property is con-
cededly impressed [Emphasis supplied.]
640 DECISIONS OF NATIONAL
Aerospace- Workers, AFL-CIO, or of any other
labor organization in the solicitation of employees
and the distribution of printed matter to employees
on that section of Respondent's property which has
been impressed with an easement for public
highway purposes by requiring said agents to
remove therefrom and by threatening to call and
calling for police to forceably move said agents
from said public highway.
(b) Engaging in surveillance of its employees at a
time when agents of the above-named Union or any
other labor organization are soliciting or distribut-
ing printed material on the public highway before
Respondent's plant.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Post at its plant in Morton Grove, Illinois,
copies of the attached notice marked "Appendix."
Copies of said notice,18 on forms provided by the
Regional Director for Region 13, after being duly
signed by an authorized representative of the
'Respondent, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 13,
in writing, within 20 days from the receipt of this
Decision, what steps it has taken to comply
herewith.19
18 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 Ap-
peals 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 the Regional Director for
Region 13, in writing, within 10 days from the date of this Order, what
steps Respondent has taken'to comply herewith " -
LABOR RELATIONS BOARD
APPENDIX
NOTICE TO.ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT interfere with agents of Dis-
trict No. 8, International Association of
Machinists and Aerospace - Workers,
AFL-CIO, or of any other labor organization
when they attempt to solicit or distribute writ-
ten material at the entrance to our plant.
WE WILL NOT engage in surveillance of our
employees when union agents are soliciting or
distributing written materials at the gates to
our plant.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization.
MONOGRAM MODELS, .
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 881 U.S. Courthouse and Federal Office
Building, 219 South Dearborn Street, Chicago, Il-
linois 60604, Telephone 828-7570.