The May Co.

National Labor Relations Board - Board Decisions

Apr 4, 1962

136 N.L.R.B. 797 (N.L.R.B. 1962)

THE MAY COMPANY 797
Misstatements of fact are contained in the brief of the General Counsel.
(1) Rule 14 of the Working Rules does not cause the Association to lay off
employees "according to their paid -up membership ." Rule 14 only requires that a
foreman who is a member of Local 41 shall "give consideration to qualified paid-up
members when laying off men ." The clause as written is ambiguous , as cited in the
brief it is discriminatory.
(2) Neither article IV , section 7 , nor any provision of the Working Rules requires
that foremen shall automatically be ruled off the job if they hire employees other than
members in good standing in the Union . This allegation is unsupported by any
provision in the contract or the Working Rules.
(3) O'Neill did not testify that the Union selected a man from the Local to act
as foreman so he would know how to select men for hiring and layoff. O'Neill testi-
fied that he suggested a foreman to Iowa, an out -of-State contractor , but that he did
not designate foremen and did not tell foremen whom to lay off.
(4) Nothing in the Working Rules requires the foremen to hire only members
in good standing and the record contains uncontradicted testimony that employees
who were not members of Local 41 were hired by parties to the contract.
(5) There is nothing in this record to support the allegation that Iowa had need
for Guinn and would have hired him except for the referral requirement.
I find a sorry contrast between the conduct of the General Counsel in this case
and the full and complete disclosure of all information requested which the record
reveals was made by the Respondent Union during the investigation , the voluntary
submission of full affidavits by Business' Agents Stringer and O 'Neill to agents of
the Board , and the free and forthright testimony given by Stringer and O'Neill at
the hearing.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
2. Respondents Roy Stringer and Joseph O'Neill are agents of Respondent Union.
3. Sheet Metal , Air Conditioning and Roofing Contractors ' Association of Central
Indiana, Inc., and Iowa Sheet Metal Contractors , Inc., are employers within the
meaning of Section 2(2) of the Act.
4. Respondents have not engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A ) and (2 ) of the Act.
RECOMMENDATIONS
It is hereby recommended that the complaint herein be dismissed in its entirety.
Q
The May Department Stores Company d/b/a The May Company
and Retail Store Employees Union, Local 880, AFL-CIO,
Charging Party
The May Department Stores Company d/b/a The May Company
and Retail Store Employees Union , Local 880, AFL-CIO and
Office Employees International Union, Local 17, AFL-CIO,
Joint Petitioners . Cases Nos. 8-CA-2155 and 8-RC-3788. April
4, 196
DECISION AND ORDER
On November 30, 1960, Trial Examiner James T. Rasbury issued
his Consolidated Intermediate Report in the above-entitled proceeding
finding that the Respondent had not engaged in the unfair labor
practices as alleged, recommending that the complaint be dismissed in
its entirety and that the Board overrule the Joint Petitioners' objec-
136 NLRB No. 71.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion to the election, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent, the Charging Party, and the
Joint Petitioners filed exceptions to the Intermediate Report and briefs
of support thereof. The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has consid-
ered the Intermediate Report, the exceptions and briefs,' and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent with this Decision and Order.
The Respondent owns and operates two department stores in the
Greater Cleveland, Ohio, area. During the year 1959 and 1960, the
Joint Petitioners campaigned to organize the Respondent. During
this time the Respondent had in effect and enforced a broad
no-solicitation rule which prohibited, inter alia, union solicitation in
the selling areas of the store during the employees' working and non-
working time.' The Respondent's enforcement of this rule, as such,
is not alleged by the General Counsel as a violation or as interference
with the election. Just prior to the election 3 held on April 28, 1960,
at a time when it was enforcing its no-solicitation rule, the Respondent
made noncoercive antiunion speeches to massed assemblies of employees
on company property and thereafter denied the Union's request for
equal opportunity and time to address the same employees. It is the
theory of the General Counsel that the refusal to grant the Union's
request to reply, on these uncontested facts, constitutes a violation of
Section 8 (a) (1) of the Act and also warrants setting aside the election.
We agree with position taken by the General Counsel.'
1 The Union's request for oral argument is denied , as in our opinion, the record , excep-
tions, and briefs adequately present the positions of the parties.
2 The Respondent ' s no-solicitation rule reads as follows:
A person who is not in the employ of the May Company is not permitted to solicit
for any purpose inside the Company ' s store , buildings , or property
An employee is not permitted to solicit for any purpose during the working time
of either the employee who is soliciting or the employee being solicited
An employee is not permitted to solicit for any purpose during store opening hours
in any portion of the Company ' s store , buildings , or property , normally visited by
the public or where noise or talking is not allowed
There are times, however , when expressions of friendship and good will for co-
workers are permissible , but in order to protect all May Company employees from
too frequent collections for flowers or presents , written permission for such solicita-
tion must be first obtained from the store superintendent . Please report any viola-
tion of these solicitation rules to your buyer or department manager
s The Joint Petitioners lost the election and filed objections.
4 The no-solicitation rule in the instant case is of the broad but privileged type. Gen-
erally, in manufacturing industries , for example , a no-solicitation rule which interferes
with the right of employees to solicit on nonworking time violates Section 8 ( a) (1) of
the Act See , Republic Aviation Corporation v. N.L R B , 324 U S. 793. However, depart-
ment stores have long been exempted from the application of this rule because the nature
of the business is such that solicitation , even on nonworking time , in selling areas, would
unduly interfere with the retail store operations See, e g , Marshall Field & Company,
98 NLRB 88, and Great Atlantic & Pacific Tea Company, 123 NLRB 747. See also Walton
Manufacturing, Company , 126 NLRB 697.
THE MAY COMPANY 799
In the Bonwit Teller case,' the employer had in effect a no-
solicitation rule which forbade solicitation during working and non-
working time on the selling floors of the department store. The
employer made preelection antiunion speeches to the employees in the
selling areas but refused the union's request for an opportunity to reply
on equal terms. The Board found that such refusal interfered with
the employees' organizational rights guaranteed by Section 7, in viola-
tion of Section 8 (a) (1), and ordered the employer to cease and desist
from such refusals . The Court of Appeals for the Second Circuit up-
held the Board's finding of the violation.' In substance the Second
Circuit reasoned as follows :
The Board, however, has allowed retail department stores the
privilege of prohibiting all solicitation within the selling areas
of the store during both working and non-working hours, [cita-
tions and footnote omitted]. Bonwit Teller chose to avail itself
of that privilege and, having done so, was in our opinion required
to abstain from campaigning against the Union on the same
premises to which the Union was denied access; if it should be
otherwise, the practical advantage to the employer who was op-
posed to unionization would constitute a serious interference with
the right of his employees to organize.'
In our opinion, the Board and court holding in the Bonwit Teller
case , which we consider to be legally sound, squarely controls the issue
in the present case.
Each of the contending parties herein relies upon Livingston Shirt
Corporation' as supporting its respective position . The Bonwit
Teller case itself, as noted, dealt with department store situations.
Thereafter, for a time, the Board also applied the doctrine of Bonwit
Teller to establishments other than retail department stores.9 How-
ever, in the Livingston Shirt case, the Board modified its approach
to the problem in the following terms :
Accordingly, we are convinced that absent special circumstances
as hereinafter indicated, there is nothing improper in an employer
refusing to grant to the union a right equal to his own in his plant.
We rule therefore that, in the absence of either an unlawful broad
no -solicitation rule (prohibiting union access to company premises
on other than working time) or a privileged no-solicitation rule
Bonwit Tell, Inc, 96 NLRB 608
8 Bonwit Teller, Inc. v. N.L R.B., 197 F. 2d 640 (C.A. 2), cert denied 345 U.S 905
' Id at 645. See also N L R B. v. American Tube Bending Co., Inc, 205 F. 2d 45
(C.A. 2), enfg 102 NLRB 735, wherein the Second Circuit made it clear that its decision
in Bonwit Teller gave the union a right of reply precisely because the broad rule was
permitted
8107 NLRB 400 (1953).
8 E.g , Metropolitan Auto Part8, Incorporated, 102 NLRB 1634 (unfair labor practice
found) , The Gruen Watch Company, 103 NLRB 3 (objections to election sustained).
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(broad, but not unlawful because of the character of the business)
[citing Marshall Field and Co., 98 NLRB 88], an employer does
not commit an unfair labor practice if he makes a preelection
speech on company time and premises to his employees and denies
the union's request for an opportunity to reply. [Emphasis
supplied.]
Our holding here finds support in the recent decision of the
Second Circuit Court of Appeals in the American Tube Bending
case [footnote omitted], in which it explicated its view of permis-
sible employer conduct within the scope of the Bonwit Teller doc-
trine [footnote omitted].10
We find no basis for the Respondent's contention that in Livingston
Shirt the Board overruled the Bonwit Teller doctrine as it applies to
department stores with broad but privileged no-solicitation rules."
It is clear that this latter situation was expressly excluded from the
statement of allowable employer conduct and was particularly identi-
fied with the citation of the Marshall Field case and the explicit reli-
ance upon the court opinions in Bonwit Teller and American Tube
Bending, supra."
However, the Respondent, in the alternative, maintains that certain
decisions of the Supreme Court control and resolve the instant case.
The Respondent contends in record argument and brief that the
Nutone 13 and Babcock & Wilcox 14 cases stand for the proposition
that retail store employers may (1) enforce a broad but privileged
rule; (2) make antiunion speeches to massed assemblies of employees;
and (3) at the same time deny to organizing unions a similar right of
reply.
We do not agree. Indeed, we believe that those decisions delineating
the extent to which an employer can restrict the organizational activi-
ties of employees and nonemployees on its premises require the result
we have reached herein. The no-solicitation rule enforced by Re-
spondent is one which seriously impaired the right of employees to
discuss union organization on company premises during nonworking
as well as working time and thus created an imbalance in the oppor-
tunities for organizational communication. Respondent's rule is
broader than the valid rule involved in the Nutone case, which re-
stricted employees' discussion of such matters only during their work-
ing time, but left them free to discuss and evaluate such matters during
to Supra, at 408, 409
u It is not necessary to, and we do not, pass upon the Livingston Shirt case insofar
as it affects nondepartment store situations.
12 In both cases the Second Circuit indicated that enforcement of the Board's orders
would be confined to the specific situations, i.e , the employer's application of a "broad
but privileged" no-solicitation rule while "availing itself of that privilege by campaign-
ing against the union on the same premises , to which the union was denied access "
13 N L R B. v United Steelworkers of America ( Nutone, Inc ), 357 U.S. 357.
14 N L R.B. v. Babcock & Wilcom Company, 351 U.S. 105.
THE MAY COMPANY 801
their nonworking time. Thus Respondent's rule, albeit privileged,"
involved a significantly greater restriction on employees' self-
organization rights than did the rule involved in Nutone.
In Nutone the Supreme Court discussed the right of an employer
to enforce against its employees a no-solicitation rule relating only to
working time, while itself engaging in an antiunion campaign during
such time. It noted that the question at issue in such cases was whether
"such conduct to any considerable degree created an imbalance in the
opportunities for organizational communication." While holding
that no such imbalance was shown therein, the Court indicated that
the result might have been different had "the employees, or the union
on their behalf, requested the employer, himself engaging in anti-
union solicitation, to make an exception to the rule for pro-union solici-
tation." Further, it indicated that even absent such a request, the
employer's conduct might properly have been deemed unlawful, had
it "truly diminished the ability of the labor organizations involved to
carry their messages to the employees. Just as that is a vital consider-
ation in determining the validity of a no-solicitation rule, see Republic
Aviation Corp. v. N.L.R.B., supra, at 797-798; N.L.R.B. v. Babcock cQ
Wilcox Company, supra, at 112, it is highly relevant in determining
whether a valid rule has been fairly applied" [Emphasis supplied.]
Applying these principles, we find that a glaring "imbalance in op-
portunities for organizational communication" was created by Re-
spondent's enforcement of the broad rule against union discussion
during nonworking time as well as during working time, while it was
engaged in utilizing such time to bring its antiunion message to the
employees. By such conduct Respondent seized for itself the most
advantageous circumstances in which to present to employees its side
of the organizational question. It spoke to them in massed assem-
blies during working time, thus gaining the not inconsiderable bene-
fit flowing from the utilization of the employment relationship for
such purposes, and insuring that its message would reach all of its
employees in the most carefully thought out and coherent form for
maximum effectiveness. At the same time it relegated the Union and
its employee supporters to relatively catch-as-catch-can methods of
rebuttal, such as home visits, advertised meetings on the employees'
15 This rule, if promulgated by a nonretall store employer, would be presumptively in-
valid because it applies to nonworking time The employer would have the burden of
showing that factors relating to production , discipline , and order at its particular plant
made such additional restriction of employees' organizational activities necessary, thus
overcoming the presumption of invalidity. See Walton Manufacturing CompanJ, 126
NLRB 747. In effect the Board's rule for department stores eliminates this latter re-
quirement and permits such employers to promulgate such a rule without a specihe ,how-
ing of such factors. See footnote 4 Of course Respondent's rule also precluded non-
employee organizers from coming on its premises for purposes of distributing literature
and soliciting employees . On this point we perceive no difference in the latitude allowed
retail store employers and other employers.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own time, telephone calls, letters, and the various mass media of
communication. While it is true that the Supreme Court in Babcock
& Wilcox held that an employer may normally put a union to the
task of organizing employees through such channels, it indicated that
such right was not absolute, but was limited to those circumstances
where the effectiveness of such channels of communication was not
diminished by employer conduct, or by other circumstances.
The normal effectiveness of such channels stems not alone from the
ability of a union to make contact with employees, away from their
place of work, but also from the availability of normal opportunities
to employees who have been contacted to discuss the matter with their
fellow employees at their place of work. The place of work is the
one place where all employees involved are sure to be together. Thus
it is the one place where they can all discuss with each other the
advantages and disadvantages of organization, and lend each other
support and encouragement. Such full discussion lies at the very
heart of the organizational rights guaranteed by the Act, and is not
to be restricted, except as the exigencies of production, discipline, and
order demand.16 It is only where opportunities for such discussion
are available, limited, of course, by the need to maintain production,
order, and discipline, that the election procedures established in the
Act can be expected to product the peaceful resolution of representa-
tion questions on the basis of a free and informed choice. Where
such discussion is not allowed, the normal channels of communication
become clogged and lose their effectiveness. In such circumstances,
the balance in "opportunities for organizational communication" is
destroyed by an employer's utilization of working time and place for
its antiunion campaign. Accordingly, while Respondent was under
no obligation to forgo utilizing such time and place for its antiunion
campaign, we find that it was under an obligation to accede to the
Union's request to address the employees under similar circumstances.
Only by such action could it maintain the balance which the Supreme
Court deemed so important a factor in this area. Respondent's
failure to accede to the Union's request seriously impaired the em-
ployees' ability to learn of the advantages of union organization from
others, and to discuss such advantages among themselves. It thereby
interfered with their rights of self-organization as guaranteed in
Section 7 of the Act.
Accordingly, we find that Respondent's conduct, as discussed
above, violated Section 8 (a) (1) of the Act and interfered with the
conduct of the election of April 28, 1961. We shall therefore set aside
that election and direct a new election.
16 N L R.B. v. Babcock & Wilcox Comvany, supra.
THE MAY COMPANY
ORDER
803
Upon the entire record in this case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The May De-
partment Stores Company d/b/a The May Company, Cleveland, Ohio,
its officers, agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) During an organizational campaign by a labor organization,
and while enforcing a broad but privileged no-solicitation rule, mak-
ing antiunion speeches to Respondent's employees during working
hours and on Respondent's premises, without according, upon reason-
able request, a similar opportunity to address the employees of the
labor organization against which such speeches are directed.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its department stores in the greater Cleveland area
copies of the notice attached hereto marked "Appendix." 11 Copies
of said notice to be furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by Respondent's representative,
be posted by it for 60 consecutive days thereafter, in conspicuous
places, including places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notice is not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the election held in Case No. 8-RC-3788
on April 28, 1960, be, and it hereby is, set aside and that the case be
remanded to the aforementioned Regional Director for the Eighth
Region for the purpose of conducting a new election at such time as
he deems that circumstances permit the free choice of a bargaining
representative.18
17In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
'- The new election shall be conducted among the employees in the unit found appropri-
ate in the stipulation for certification upon consent election dated March 28, 1960, who
are employed during the payroll period immediately preceding the date of issuance of
notice of election.
641795-63-vol. 136-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER DODGERS, dissenting :
I would adopt the recommendations of the Trial Examiner in their
entirety. I would dismiss the allegation of the complaint that Re-
spondent violated Section 8(a) (1) of the Act and would find without
merit the allegation that the Employer engaged in conduct which
affected the results of the election.
The Employer operates two department stores in Metropolitan
Cleveland, Ohio. The largest, located downtown, has about 2,500
employees. The second, with about 600 employees, is located in a
suburban shopping center. The Employer has a lawful no-solicitation
rule which (1) forbids nonemployees to solicit for a union on the
premises; and (2) forbids employees from doing so on worktime or in
selling areas. The rule permits employees to discuss or solicit for a
union on nonworktime in nonselling areas, of which there are many
in both stores.19 In the 3 weeks preceding the election, when the Union
had intensified its campaign, the Employer made one noncoercive
speech each week to its employees on its premises, on working time.
Attendance at the speeches was voluntary. The Union requested an
"equal opportunity" to reply, on the Employer's time and at the Em-
ployer's expense. The Employer refused.
In finding that this refusal by the Employer is a violation of the
law, my colleagues are reviving a rule known as the "equal oppor-
tunity" doctrine, which doctrine is, in my opinion, contrary to the
first amendment to the Constitution, Section 8(c) of the Act, and
decisions of the Board and courts.
The Board is holding that because the Employer has used his own
property, and his own time, to speak to a voluntary meeting of his
employees in an uncoercive and lawful manner concerning unioniza-
tion, the Employer must, under penalty of law, make his property and
the time of his employees, for which he pays, available to the Union
for the purpose of organizing his employees. They do so in an
opinion which contains not a single allusion to Section 8(c) of the
Act, and which relies exclusively on the well-known but discredited
Bonwit Teller case. In 1951, in the Bonwit Teller case, the Board held
that because an employer had in effect in its department store a rule
which forbade "solicitation of employees by union organizers in selling
areas," and the employer made a speech" to the employees on the
19 My colleagues ' characterization of the no -solicitation rule as a rule which "for prac-
tical purposes" precludes employees from discussing union organization during non-
working, as well as working time , is plainly at variance with the terms of the rule, which
is quoted in the Intermediate Report in its entirety. Nor is there any evidence in the
record which might warrant the conclusion that the Respondent's rule had any such
effect As the parties have stipulated that the no-solicitation rule is valid , I see no
justification for my colleagues ' speculation as to the effects of the rule , particularly since
their assertions , if true, would make the rule invalid
20 Actually the speech made in Boniest Teller was itself found violative of Section
8(a) (1).
THE MAY COMPANY 805
premises, the employer violated Section 8(a) (1) by refusing to let
the union make a speech on the premises under similar circumstances.
To avoid the apparent conflict with the provisions of Section 8(c),
which specify that the expression of views or opinions shall not consti-
tute or be evidence of an unfair labor practice, the Board reasoned that
free speech was not involved in its finding of a violation. The Board
said the essence of the violation was that the lawful no-solicitation
rule had been discriminatorily applied, as between the employer and
the union, and the employer had therefore abused its special privilege
of having such a rule. The Board held that this was a violation
regardless of "Whatever opportunity that Union may have had to
solicit employees outside of the store or at union meetings because the
broad no-solicitation rule had deprived the union of the most effective
means of contact with the employees." 21
This is the doctrine which my colleagues revive as "legally sound,"
asserting that it has not been overruled by Livingston Shirt,22 nor
affected by the opinions of the Supreme Court in the Babcock &
Wilcox and Nutone cases. But these cases, and others, have rejected
or reversed every principle on which Bonwit was predicated. In
Livingston Shirt, the Board held "... to say that conduct which is
privileged gives rise to an obligation on the part of the employer to
accord an equal opportunity for the union to reply under like cir-
cumstances, on pain of being found guilty of unlawful conduct, seems
to us an untenable basis for a finding of unfair labor practices. If the
privilege of free speech is to be given real meaning, it cannot be
qualified by grafting upon it conditions which are tantamount to
negation. . . . We reject the idea that the union has a statutory right
to assemble and make campaign speeches to employees on the em-
ployer's premises and at the employer's expense."
Whatever latent vitality may have inhered in that part of the
Livingston opinion on which the majority relies as preserving an ex-
ception to the foregoing language has been extinguished by court
decisions. Soon after the Livingston decision, the Court of Appeals
for the Sixth Circuit had occasion to consider and reject the applica-
tion by the Board of the Bonwit Teller rule to a department store, in
F. W. Woolworth Co.," in circumstances identical to the instant case.
The opinion of the court and the concurring opinion explicitly re-
jected the Board's argument that the Board's Bonwit Teller doctrine
did not infringe upon rights guaranteed by Section 8(c) of the Act.
21 96 NLRB 608, at 612
ze The assertion by my colleagues that Bonwit was not reversed will no doubt come as
a surprise to many including the former Board Member who wrote an extensive dissent
in both Livingston Shirt and Peerless Plywood Go , on the assumption that Bonwit was
being reversed . See former Member Murdock's dissents in these cases, at 107 NLRB 400,
410 and 107 NLRB 427, 431, respectively.
23 N.L R B . v. F. W Woolworth Co, 214 F. 2d 78 ( C.A. 6), June 3, 1954 , one judge
dissenting , denying enforcement of 102 NLRB 581.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The court held that the Board's ruling nullified the purpose of Sec-
tion 8 (c) of the Act, and it rejected the finding by the Board that
having made a speech to employees during working hours, the Em-
ployer violated Section 8(a) (1) by denying the union's request for a
like opportunity, because this constituted discriminatory enforcement
of a lawful no-solicitation rule. The court based its holding on the
very clear, but often ignored legislative history which states that the
enactment of Section 8 (c) was intended by Congress "... to make it
clear that the Board is not to construe utterances containing neither
threats nor promises of benefit as an unfair labor practice standing
alone or as making some act which would otherwise be legal an unfair
labor practice." 24 The court also rejected the contention by the Board
that the adequacy of facilities through which the union could com-
municate with employees outside the employer's premises was ir-
relevant, saying that even if an employer has himself conferred with
employees on the premises, the employer has no obligation to permit a
union to campaign on its premises when there are adequate facilities
for access to the employees 25
Moreover, the Supreme Court later found no violation of the Act in
a case in which an employer had not observed his own rule. As the
Board said in the Walton 26 case, the Supreme Court in the Nutone 27
case indicated that the following factors are relevant in determining
whether "a valid rule has been fairly applied" : (1) The employees
must request the employer to make an exception to the rule for pro-
union solicitation, even though the employer is engaging in antiunion
solicitation and in effect violating the rule himself, because if the
employer voluntarily offers the use of his facilities and the time of his
employees for prounion solicitation he subjects himself to a possible
charge of violation of Section 8(a) (2) of the Act; (2) because such a
24 Quotation from Supplemental Analysis of Labor Bill as passed by conference com-
mittee, submitted by Senator Taft, 93 Congressional Record 7002 . See 214 F. 2d 81.
At the time of the Livingston Shirt decision, the language therein regarding union
access to company premises which is cited by the majority was consistent with current
Board doctrine , which did not distinguish between employees and nonemployees in deter-
mining rights of access to an employer 's premises for organizational purposes . Despite
the court decision in the Woolworth case , the Board continued to equate the rights of
nonemployees to the rights of employees , and did so in Babcock & Wilcox , 109 NLRB
485; Seamprufe, Inc, 109 NLRB 24; and Ranco , Inc, 109 NLRB 998 The Supreme
Court reversed the Board , finding substantial distinction between the rules of law appli-
cable to employees and those applicable to nonemployees . The Court held that ". . . an
employer may validly post his property against non -employee distribution of union litera-
ture if reasonable efforts by the union through other available channels of communciation
will enable it to reach the employees with its message and if the employer 's notice does
not discriminate against the union by allowing other distribution " N L.R B v Babcock
& Wilcox, 351 U S. 105. Thus , Babcock & Wilcox , by holding that any employer could
under certain circumstances prohibit access to the premises by nonemployees, eliminated
the basis for describing the right of department stores to do so as a "special privilege,"
as the Board has done in the Bonwit and Woolworth cases
20Walton Manufacturing Company, 120 NLRB 697.
'N.L.RB. v United Steelworkers of America ( Nutone, Inc.), 357 U.S 357
THE MAY COMPANY 807
rule is presumptively valid both as to promulgation and enforcement,
the union involved has to show that enforcement of the rule is an
"unreasonable impediment" to organization in that it cannot effec-
tively carry its message to the employees in any other way.
As noted above, in considering cases of this type, the Supreme Court
has approached the problem of whether, and in what circumstances,
an employer may prohibit union solicitation on its premises as a prob-
lem of balancing the employees' need for communication on the subject
of union organization with an employer's exercise of his property
rights. Because in the view of the Court mechanical answers that the
doors must always be open or closed to unions will not suffice, the
Court has evolved the criteria set forth above for establishing "the
concrete basis for appraising the significance of the employer's con-
duct," 28 which the Court had found wanting in the Board decisions
which it reviewed. I do not believe the attempted distinction by my
colleagues, on the ground that the rule here, though lawful, is broader
than the rules in the Nutone case, warrants the conclusion that the
Court would view the problem in the instant case as a problem of an
essentially different type 2e
In stating that there exists in this case an "imbalance in the oppor-
tunities for organizational communication," 30 my colleagues have
framed their conclusion in the language used by the Supreme Court,
in the Nutone case. However, they have made none of the supporting
findings which the Court has indicated are necessary to establish the
basis for such a conclusion in cases of this type. Instead they refer
only to the admitted facts that the employer has a valid no-solicitation
rule, and, having talked to the employees, refused to allow the Union to
do so on company time and premises. The Supreme Court made it
clear in the Nutone case that a valid no-solicitation rule may not be
invalidated merely because it closes off one channel of communication,
even if it closes off a channel which the employer has used. The Court
also clearly indicated that in determining the existing balance, it is
the responsibility of the Board to make findings concerning whether,
by virtue of the location of the place of employment, the facilities and
resources available to the union, and the relevant alternative channels
available for communications, the union has an adequate opportunity
for effectively reaching the employees outside the employer's premises
through reasonable efforts.
My colleagues have neither considered the existence of alternative
channels, nor evaluated their possible effectiveness. They summarily
28 See N L R.B. v. United Steelworkers of America ( Nutone, Inc ), 357 U . S. 357 , at 364.
sB Nutone , a manufacturer , enforced rules prohibiting all campaigning or soliciting dur-
ing working hours , and prohibiting all persons from posting or distributing literature on
its premises at any time Nutone itself violated all of its own rules.
30 See 357 U.S. 357 , at 362.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discard all methods other than a talk by the Union to the employees
on company time and premises as being "relatively catch-as-catch-can
methods." It is therefore readily apparent that their finding of an
"imbalance in the opportunities for organizational communication"
is predicated solely on the denial to the Union of a channel of com-
munication used by the Employer.
The Trial Examiner found no proof that the usual channels of
communication existent in a modern metropolitan area were unavail-
able for use by the Union. It is clear that the Union had available
and extensively used television and radio to broadcast half-hour and
hour programs and spot announcements. Beginning about August
1958, the Union passed handbills at the downtown store every week,
or every other week, until the election in April 1960. To some extent,
the Union attempted to and did publish newspaper advertisements.
Ninety-four percent of the employees of the downtown store live
within 10 miles of the store, and 87 percent of the employees of the
suburban store live within 5 miles of the store. It is apparent that, in
these circumstances, it would have been feasible and reasonable for
the Union to utilize home visits and telephone solicitations, which it
did to some extent use. It would also have been feasible for the Union
to have mailed literature to the 1,250 employees whose names and
addresses the Union possessed. It is further apparent that the Union
had, by August 1959, 8 months before the election, secured authoriza-
tion cards from at least 30 percent of approximately 1,000 of the
employees, in support of the first petition which it filed. This indi-
cates the practical effectiveness of the media of communication which
the Union had chosen to utilize.
I cannot find, on the evidence in this record, that the inaccessibility
of the employees was such as to render ineffective or seriously impair
reasonable attempts of the Union to communicate with them. Nor
can I find that alternative channels of communication were not avail-
able to the Union, through which it could, and in fact did, communi-
cate with the employees. I cannot, therefore, find that the Employer
is required by law to admit the Union to his premises to organize the
employees on their working time. Therefore, I would dismiss the
complaint and overrule the objection to the election.
MEMBER LEEDOM, dissenting :
Under the principles established in the Nutone case," which I
deem dispositive of the issues in this case," the enforcement of a valid
no-solicitation rule by in eiiiployer who is at the same time engaging
m N L.R.B v. United Steelworkers of America ( Nutone, Inc ), 357 U . S. 357 ; see also
N.L.R B. v Babcock & Wilcox Company, 351 U.S 105.
3-'Although Nutone involved the rights of employees, its principles , insofar as they pre-
clude a finding of violation , apply a fortiors to nonemployees ; see N . L R B. v. Babcock &
Wilcox Company, supra.
THE MAY COMPANY 809
in antiunion solicitation may not constitute an unfair labor practice
in the absence of substantial evidence that, when all alternative reason-
ably available channels of communication are considered, the ability
of the union to carry its message to the employees has been truly dimin-
ished 33 Unlike the majority, I do not think such a true diminution
can be established merely by showing that as a general proposition
department store employees can be more easily reached through the
avenues of communication open to their employer than through the
avenues open to a union. As I fuid in this record no evidence of true
diminution, I would find that the complaint should be dismissed and
the objections to the election should be overruled.34
a3 To this extent I agree with Member Rodgers that a finding of violation cannot be
predicated on Bonwit Teller, Inc., 96 NLRB 608. In view of the Nutone and Babcock
decisions , the question of the extent to which Livingston Shirt Corporation, 107 NLRB
400, overruled Bonwit Teller is largely academic, and I see no need to join in the debate
on that issue at this late date
"As I find no violation on the facts in this case, I have not considered the impact, it
any, which Section 8 (c) of the Act would have in other factual contexts
CONSOLIDATED INTERMEDIATE RiEPORT
STATEMENT OF THE CASE
An election was conducted under the supervision of the National Labor Relations
Board among Respondent's employees on April 28, 1960, pursuant to a petition hav-
ing been duly filed under Section 9(c) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act. The Joint Petitioners herein filed ob-
jections to conduct affecting the results of the election and on June 15, 1960, the
Regional Director issued his report on objections recommending a hearing to resolve
the issues presented in Petitioners' objection No. 1. The Regional Director recom-
mended that all other objections filed by the Petitioners be overruled. No excep-
tions were filed by any party to the Regional Director's report and on June 30, 1960,
the Board issued its order directing hearing which consolidated the two cases herein.
The complaint in Case No. 8-CA-2155 was issued on June 15, 1960, and alleges a
violation of Section 8(a)(1) of the Act by Respondent. The Respondent's answer,
while admitting certain allegations set forth in the complaint, denied the commission
of any unfair labor practices.
Upon consideration of the entire record,' the oral argument , the briefs filed, and
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Respondent is a corporation engaged in the operation of retail department stores
in Cuyahoga County, Ohio, and other States of these United States. Respondent's
annual volume of retail sales exceeds $500,000 and it annually receives from outside
the State of Ohio products valued in excess of $50,000. Upon these admitted facts, I
find that it will effectuate the policies of the Act to assert jurisdicion herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Retail Store Employees Union, Local 880, AFL-CIO, and Office Employees
International Union, Local 17, AFL-CIO, hereinafter termed the "Union" unless
the context requires a more specific designation, are and have been at all material
times herein labor organizations within the meaning of Section 2(5) of the Act.
1 On September 15, 1960, the Trial Examiner received a stipulation consisting of 10Y2
typewritten pages of corrections to the record which was approved by all counsel hereto
The corrections are hereby made a part of the official record herein
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE ISSUES
The Respondent has had in effect , and has enforced, at all times material herein, a
broad but privileged no-solicitation rule.2 During the weeks of April 4, 18, and 25,
1960, the Respondent addressed large groups of employees on their working time
and on Respondent's premises for the purpose of persuading said employees to vote
against the Union while refusing a request of the Union made on April 22, 1960,
for permission to address Respondent's employees on Respondent's premises during
the employees' working hours. The complaint alleges that such conduct by Respond-
ent has interfered with, restrained, and coerced the employees in the exercise of
the rights guaranteed in Section 7 of the Act and thus Respondent committed an
unfair labor practice in violation of Section 8 (a)( I) of the Act.
The Regional Director in his report on objections stated: "Objection No. 1 alleges
that the Employer while enforcing its broad but privileged no-solicitation rule, made
preelection speeches on company time and premises to its employees and denied the
petitioners' request for equal time to address the employees on company time and
premises . Petitioners allege this conduct violates Section 8(a) (1) of the Act upon
authority of Livingston Shirt Corporation, 107 NLRB 400, and is therefore per se
objectionable."
It is apparent that the unfair labor practice alleged in the complaint and the
objection to the election which the Board desires to have resolved, stem from an
identical set of facts and may be considered jointly. The issue to be resolved may be
stated as follows: Does a Department Store Employer Violate the Act by Giving
Permissible 8(c) Speeches to Its Employees While Strictly Enforcing a Broad but
Privileged No-Solicitation Rule? 3
IV. DISCUSSION AND LEGAL ANALYSIS
A. The facts
1. Location of stores involved
Respondent operates two general department stores in Cuyahoga County. The
downstown store is located on Euclid Avenue in the city of Cleveland at the public
square. The second store, sometimes characterized in the testimony as the Heights
store, is located at the southeast corner of the intersection of Cedar Road and
Warrensville Center Road in the city of University Heights. University Heights
is approximately 8 miles from the downtown public square of Cleveland and is
within an area generally characterized as Metropolitan Cleveland.
2The "broad but privileged no-solicitation rule" of Respondent reads as follows:
A person who is not in the employ of the May Company is not permitted to solicit
for any purpose inside the Company's store, buildings, or property
An employee is not permitted to solicit for any purpose during the working time of
either the employee who is soliciting or of the employee being solicited
An employee is not permitted to solicit for any purpose during store opening
hours in any portion of the Company's store, buildings, or property, normally visited
by the public or where noise or talking is not allowed
There are times, however, when expressions of friendship and good will for co-
workers are permissible, but in order to protect all May Company employees from
too frequent collections for flowers or presents written permission for such solicita-
tion must be first obtained from the store superintendent
Please report any violation of these solicitation rules to your buyer or department
manager. Tan MAY COMPANY
The "broad but privileged" characterization of the particular no-solicitation rule was set
forth in the complaint. It was stipulated at the hearing that the particular no-solicitation
rule was valid under the Act.
Section 8(c) of the Act reads as follows
The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.
All parties stipulated that the speeches did not exceed that permitted by this section of
the Act. If the issue framing question is answered In the affirmative, it follows that the
objection to conduct affecting the election has merit and the election must be set aside.
THE MAY COMPANY 811
2. Pertinent physical facilities
The downtown store consists of 9 floors and a basement making a total of 10
levels. There are four entrances to the store, two on Euclid Avenue and two on
Prospect Avenue, which are used by both customers and employees alike. There is
an open area or arcade located on the Euclid Avenue side of Respondent's property,
but anyone entering or leaving the store on the Euclid Avenue side would have to
pass through one of two corridors each being approximately 12 feet wide.
The University Heights store has four floors, but is completely surrounded by a
parking area which is the private property of the Respondent. The Respondent's
property is bound on the west by Warrensville Center Road, on the north by Cedar
Road, on the east by Miramar Road, and on the south by a row of private homes
which face onto Bushnell Road. The Respondent's property is bound on the three
accessible sides by a sidewalk approximately 8 feet wide. The area designated for
employee parking is located at the southeastern corner of Respondent's property.
The main employee entrance is located on the southeastern side of the Respondent's
building and is the entrance closest to the designated employee parking area. A
large number of employees also enter what is designated as the No. 1 Warrensville
door located on the west side of the Respondent's building, leading directly to and
from the commuters' public transportation area.
3. Employee living areas
There were approximately 3,066 eligible voters in the election held on April 28;
2,894 ballots were cast, 891 were for the Union, 1,959 were against the Union, 29
votes were challenged, and 15 were void. Approximately 610 of the eligible em-
ployees were employed at the Heights store and about 2,456 employees eligible to
vote in the election were employed at the downtown store.
Eight-seven percent of the Heights store employees lived within a 5-mile radius of
the store. All but 14 of the Heights store employees reside within a 10-mile radius
of the store.
Approximately 93 percent of the downtown store employees reside in postal zones
within or almost wholly within a 10-mile radius of the downtown store. Less than
6 percent of the downtown store employees reside more than 10 miles from the
downtown store.
4. Stipulations
As has heretofore been indicated, the Respondent had a broad but privileged no-
solicitation rule. The parties stipulated that during April 1960, the Respondent's
supervisors on several occasions engaged in noncoercive antiunion solicitation during
or at times when the employees were normally engaged in their usual work and on
Respondent premises. Employees, however, were not required to attend the meet-
ings,4 and the phrase "captive audience" is not accurately applied to these facts.
It is further stipulated that the Union on April 22 demanded equal time during
working hours and on company premises to inform employees of its side of the
election controversy. The telegram further requested that the Respondent revoke
its no-solicitation rules. By letter dated April 23 the Respondent acknowledged re-
ceipt of the request from the Union, but declined to honor the Union's request .5
I This from the uncontradicted and credited testimony of Rodi, the general manager of
the downtown store.
In the absence of proof that normal channels of communication were unavailable to
the Union, the above-outlined facts are, in the Examiner's opinion, the only facts needed
or necessary to correctly resolve the problems presented and the issue as, framed herein
The General Counsel would apparently concur in this view inasmuch as be rested his case,
without calling any witnesses, immediately following the receipt of the formal papers
and the stipulations which have been incorporated above It should be pointed out that
there was considerable additional testimony received concerning the efforts and frustra-
tions of the Union in handbilling employees, the number of union meetings held and the
attendance or lack of attendance at such meetings, newspaper articles appearing in the
local papers concerning the Union's desires to organize the Respondent's employees, the
extent to which the Union did or did not use such media as the telephone, radio, news-
papers, and television to communicate with Respondent's employees, the number of full-
time union employees that engaged in the campaign, the difficulties and methods employed
in home visits or lack of visits, and the extent to which "someone" succeeded in cir-
cumventing the Respondent's no-solicitation rule by passing out prounion literature
within Respondent 's stores during working hours . This detailed evidence in the Ex-
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Legal views advanced by parties
1. The General Counsel's position
After first quoting a very pertinent portion of the Board's Livingston Shirt deci-
sion, supra, as follows: "We rule therefore that, in the absence of either an unlawful
broad no-solicitation rule (prohibiting union access to company premises on other
than working time) or a privileged no-solicitation rule (broad, but not unlawful be-
cause of the character of the business), an employer does not commit an unfair
labor practice if he makes a preelection speech on company time and premises to
his employees and denies the Union's request for an opportunity to reply" General
Counsel then argues that from a literal and simple reading of this sentence that "it
is obvious that the Board by using the language `in the absence of a privileged no-
solicitation rule an employer does not commit an unfair labor practice,' the Board
was thereby ruling that with a privileged no-solicitation rule an employer does com-
mit an unfair labor practice by making speeches on company time and property
and denying the union's request for equal time."
The General Counsel argues that the broad but privileged no-solicitation rule is
an extension of the type of no-solicitation rule normally permissible under the Act,
but has been extended to department stores by the Board because of the particular
character of the business as distinguished from an industrial-type organization, i e., a
factory. Therefore, the General Counsel contends, an employer may not first take
advantage of the very restrictive no-solicitation rule permitted because of the
peculiar nature of the business and then thereafter make antiunion speeches to mass
groups on company time and property without interfering with the employees' rights
which are guaranteed under Section 7 and thereby violate Section 8(a)(1) of the
Act.
2. The Union's contention
The Union's first argument is identical to that of the General Counsel. The argu-
ment is phrased thusly: "Therefore, if the Board would rule in the absence of a
broad no-solicitation rule that an employer does not commit an unfair labor
practice if he denies a union's request for a reply to a captive audience speech, one
must conclude that where a broad no-solicitation rule is not absent, as in this case,
the employer does commit an unfair labor practice when he denies a union request
for reply time." The Union's counsel would distinguish N.L.R.B. v. Babcock &
Wilcox Company, 351 U.S. 105, and N L R.B. v. United Steelworkers of America
(Nutone) 357 U.S. 357, as cases that (1) did not deal with the right of reply, (2)
department store operations were not involved, and (3) in any event the cases did
not purport to overrule the Livingston Shirt case.
Secondly, the Union's counsel contends that the Respondent committed an inde-
pendent violation of the Act when it refused to allow the Union to distribute hand-
bills at the Heights store. This argument is made even though the complaint does
not allege the particular conduct on the part of the Respondent Company as a
violation of the Act.6
Thirdly, it is argued that the Board's Livingston Shirt doctrine finds its roots in
the court's decision in N.L.R.B. v. American Tube Bending Co., 205 F. 2d 45, and
the court's language in the American Tube case supports the finding of a violation
in the instant case.
Finally, the Union argues that the law requires an "equality of opportunity" to
all parties and that in the instant case, under the particular facts, the Union did
not have an equal opportunity.
3. The Respondent's contention
Respondent's counsel contends that both the General Counsel and the Charging
Party are mistaken in seeking to apply the Livingston Shirt doctrine inasmuch as
that case involved the so-called captive audience issue in the context of an unfair labor
practice case, not a representation proceeding. Respondent argues that the instant
case should be controlled by the Board's language in Peerless Plywood Co., 107
aminer's opinion , however, relates to the extent to which the Union did or did not utilize
such facilities as were available to communicate with Respondent's employees and is un-
necessary for a resolution of the problems presented within the confines of the legal
principles involved.
O The General Counsel did not seek to have the complaint amended and the Charging
Party is without authority to amend See Intl Union of Blectrical, Radio & Machine
Workers v NLRB (NECO Electrical Products Corp.), 289 F. 2d 757 (C.ADC.).
THE MAY COMPANY 813
NLRB 427, which states that an employer is not prohibited "from making (without
granting the union an opportunity to reply) campaign speeches on company time
prior to the 24-hour period, provided, of course, such speeches are not otherwise
violative of Section 8 (a) (1).' From this quoted language Respondent argues that
it was stipulated that the speeches were not violative of Section 8(a)(1) of the Act
and thus the language of Peerless specifically would permit Respondent the right to
deny the Union an opportunity to speak on company time and premises.
Secondly, the Respondent argues that the Board's language in Goldblatt Bros.,
Inc., 119 NLRB 1711, wherein it was stated "it is established Board policy that an
employer may make noncoercive campaign speeches to his assembled employees on
his premises, in disregard to a rule against solicitation, as employer's premises are
the natural forum for him just as the union hall is the inviolable forum for the
Union to assemble and address employees" is controlling. In the Goldblatt case the
union's objection to the result of the election was overruled.
Thirdly, the Rspondent's counsel argues that there is no "equal opportunity doc-
trine" expressed in either the Act or the legislative history that requires an employer,
in exercising a right given to him under the law, to accord to union representatives
a similar right.
Finally, the Respondent contends that the Livingston Shirt argument advanced by
the General Counsel and the Union in the instant case must be discarded as overruled
by the United States Supreme Court in Babcock & Wilcox, 351 U.S. 105, which, it
is argued, clearly establishes that the department store employers exercise no greater
privilege with respect to excluding nonemployee organizers from their premises than
do nondepartment store employers.
Legal Conclusions
This case may be disposed of by the application of a few simple principles of
law as enunciated by the Supreme Court of the United States?
(1) Rules regarding solicitation on employer premises evolve out of "an adjust-
ment between the undisputed right of self-organization assured to employees . .
and the equally undisputed right of employers to maintain discipline in their estab-
lishments." N.L.R.B. v. LeTourneau Company of Georgia, 324 U.S. 793, 797.
This principle and its underlying rationale was repeated by the Court in N L R.B.
v. Babcock & Wilcox Company, 351 U.S. 105, 112. "This is not a problem of
always open or always closed doors for union organization on company property.
Organization rights are granted to workers by the same authority, the National
Government, that preserves property rights. Accommodation between the two must
be obtained with as little destruction of one as is consistent with the maintenance of
the other."
(2) There is a distinction between rules of law applicable to nonemployee union
adherents and employee union adherents. Restriction of the employees' rights to
discuss self-organization are confined to maintaining discipline or production.
"lA]ccess to company property" by nonemployee organizers "is governed by a
different consideration." Babcock & Wilcox, supra.
7 The Livingston Shirt, supra, argument advanced by the General Counsel and the
Charging Party is rejected while the argument is somewhat ingenious and the Board's
language may be subject to such an interpretation, it Is not in the Examiner's opinion a
correct interpretation In the first place, the Livingston Shirt case did not involve a
department store or an unlawful no-solicitation rule and the rule of law evolving from
the case Is one made without stating how these factors, if present, would affect the rule
being made The Interpretation of the sentence from Livingston Shirt seized upon by
General Counsel and counsel for the Union, if correct, would be at variance with most, If
not all, of the other language in the case, i e , at p. 405, "But to say that conduct
which is privileged gives rise to an obligation on the part of the employer to accord an
equal opportunity for the union to reply under like circumstances, on pain of being found
guilty of unlawful conduct, seems to us an untenable basis for a finding of unfair labor
practices " The interpretation pleaded does violence to the entire rationale of the case
Furthermore, in Goldblatt Bros , Inc, 119 NLRB 1711, the Board had before It an
Identical set of facts as those herein and refused to set the election aside. Although
the union's argument In the Goldblatt case was keyed to disparate treatment, It Is Im-
possible to believe that the Board would not have applied Livingston Shirt and thus set
the election aside if General Counsel's Interpretation of Livingston Shirt, as pleaded
here, were correct And, in any event, this Examiner is of the opinion that the correct
answer to the issue posed is best found in Supreme Court pronouncements since the date
of the Board 's Livingston Shirt case.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) To determine whether a valid rule has been fairly applied there must be a
showing that the rule truly diminished the ability of the labor organization to carry
their message to the employees. N.L.R.B. v. United Steelworkers of America (Nu-
tone, Inc.), 357 U.S. 357.
The Board in a recent decision, Walton Manufacturing Company, 126 NLRB 697,
set forth its interpretation of the decisions of the Supreme Court-from which the
above principles are taken-in which it stated:
"3. No-solicitation or no-distribution rules which prohibit union solicitation or
distribution of union literature by nonemployee union organizers at any time on the
employer's property are presumptively valid, in the absence of a showing that the
union cannot reasonably reach the employees with its message in any other way,
or a showing that the employer's notice discriminates against the union by allowing
other solicitation or distribution." [Emphasis supplied.]
There has been no showing in the instant case that the Union could not reasonably
reach the employees in any other way than by speaking to them on Respondent's time
and premises. To the contrary it is undisputed that the Union did reach employees
by telephone, radio, television, handbilling, housecalls, and meetings. The Union
does not pretend that it was impossible to reach Respondent's employees, but rather
the heart of the Union's argument is that the means available to it were less effective
than the means available to Respondent. In short the Union pleads for an equal
opportunity doctrine as between employer and Union. But that is not the law
regardless of how laudable the doctrine may or may not be.8
In applying the enunciated principles one must not confuse "effectiveness of effort"
with "accessibility." The Respondent's employees were "accessible" to the Union,
although perhaps not as accessible to the Union as to Respondent. The results of
the election reflect on the "effectiveness of effort," but this is not an appropriate
criterion on which to determine "accessibility."
"The Act requires only that the employer refrain from interference, discrimina-
tion, restraint or coercion in the employees' exercise of their own rights. It does
not require that the employer permit the use of its facilities for organization when
other means are readily available." Babcock & Wilcox, supra , at 113.
The Respondent's rule "had the effect of closing off one channel of communica-
tion; but the Taft-Hartley Act does not command that labor organizations as a
matter of abstract law, under all circumstances, be protected in the use of every
possible means of reaching the minds of individual workers, nor that they are
entitled to use a medium of communication simply because the employer is using
it." Nutone, supra, at 363.
It should be noted, however, that the Board has held in certain instances con-
cerning lumber camp, maritime , and company town situations that nonemployee
union representatives must be granted entry to company property where the physical
limitations of the employment locale prevent employees from gaining access to out-
side contacts for long periods of time or except at the cost of considerable effort.
N.L.R.B. v. Cities Service Oil Company, et al., 122 F. 2d 149 (C.A. 2); N.L.R.B. v.
Weyerhauser Timber Company, 132 F. 2d 234 (C.A. 9); N.L.R.B. v. Stowe Spinning
Company, 336 U.S. 226; and Phillips Petroleum Company, 92 NLRB 1344. The
instant case does not fall within the above category of cases or meet the tests of the
rationale applied
I find nothing in the record of this case to indicate that Respondent's conduct
foreclosed the Union from reasonable access to the employees. Enforcement of a
broad but privileged no-solicitation rule by a department store while engaging in
lawful 8(c) conduct does not per se impose unreasonable impediments to self-
organization. I shall recommend dismissal of the complaint to the Board
Upon the above findings of fact, and upon the entire record in the case, I make
the following
CONCLUSIONS OF LAW
1. The Respondent 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. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
4. The petitioner.;' objection to conduct affecting the election is without merit
and should be overruled.
8 See Livingston Shirt Corporation, supra, footnote 17, at 409
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 815
RECOMMENDATION
Having concluded that Respondent had not engaged in unfair labor practices as
alleged herein and having found petitioners ' objection to election to be without
merit, I recommend that the complaint be dismissed in its entirety , that the Board
overrule the petitioners ' objection and proceed to issue a certification of results of
election.
Harbor Carriers of the Port of New York , and its members
listed in Appendix A and Deck Scow Captains Local 335, for-
merly known as Deck Scow Captains Local 335, Seafarers
International Union and Deck Scow Captains Local 335, United
Marine Division , National Maritime Union , AFL-CIO, Party
in Interest
Harbor Carriers of the Port of New York , and its members
listed in Appendix B and Deck Scow Captains Local 335, for-
merly known as Deck Scow Captains Local 335, Seafarers
International Union and Deck Scow Captains Local 335, United
Marine Division , National Maritime Union, AFL-CIO, Party
in Interest
Suffolk Dredging Corp . and Deck Scow Captains Local 335, for-
merly known as Deck Scow Captains Local 335, Seafarers
International Union
Harbor Carriers of the Port of New York and its Harbor Car-
riers Division , and its members listed in Appendix A and Deck
Scow Captains Local 335, formerly known as Deck Scow Cap-
tains Local 335, Seafarers International Union and Deck Scow
Captains Local 335, United Marine Division , National Mari-
time Union , AFL-CIO, Party in Interest
Harbor Carriers of the Port of New York and its Industrial
Carriers Division and its members listed in Appendix B and
Deck Scow Captains Local 335, formerly known as Deck Scow
Captains Local 335, Seafarers International Union and Deck
Scow Captains Local 335, United Marine Division, National
Maritime Union, AFL-CIO, Party in Interest
Colonial Sand & Stone Co. and Deck Scow Captains Local 335,
Independent
Deck Scow Captains Local 335, United Marine Division, National
Maritime Union , AFL-CIO [Colonial Sand & Stone Co.] and
Deck Scow Captains Local 335, Independent
Colonial Sand & Stone Co. and Deck Scow Captains Local 335,
Independent
Deck Scow Captains Local 335, United Marine Division , National
Maritime Union, AFL-CIO [Colonial Sand & Stone Co.] and
136 NLRB No. 79.