Marshall Field & Co. v. National Labor Relations Bd.

• Citation: 200 F.2d 375
• Decision Date: 08 January 1953
• Docket Number: No. 10593.,10593.
• Parties: MARSHALL FIELD & CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

200 F.2d 375 (1952)

MARSHALL FIELD & CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 10593.

United States Court of Appeals, Seventh Circuit.

November 14, 1952.

As Amended January 8, 1953.

Ralph E. Bowers, Charles R. Kaufman and Henry M. Thullen, Chicago, Ill., (Vedder, Price, Kaufman & Kammholz, Chicago, Ill., of counsel), for petitioner.

A. Norman Somers, Asst. Gen. Counsel, Mozart G. Ratner, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., George J. Bott, Gen. Counsel, David P. Findling, Asst. Gen. Counsel, Dominick L. Manoli, Samuel M. Singer, National Labor Relations Board, Washington, D. C., for respondent.

Before KERNER,^* DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

This proceeding is before the court on a petition to review and set aside an order of the National Labor Relations Board¹ issued against petitioner² on February 15, 1952; in its answer the Board requests enforcement of said order.

The Board approved the trial examiner's findings that no illegal motive existed in the company's adoption of its rule against solicitation; and that such rule prohibiting the solicitation of employees in selling areas, and against soliciting employees while they are on duty is valid. However, the Board held that the company had violated Sec. 8(a) (1) of the Act in the following respects: (a) in prohibiting access by non-employee union organizers in reasonable numbers in cafeterias and restaurants reserved for the exclusive use of employees, and prohibiting such organizers from soliciting employees off duty in such cafeterias and restaurants³; (b) in prohibiting non-employee union organizers and also employees from soliciting other members on non-working time in public waiting rooms and washrooms; (c) preventing, by ejection, threat of arrest, and arrest,⁴ non-employee union organizers from soliciting employees for union membership; (d) seizing and retaining authorization cards⁵; and (e) interrogating its employees concerning their union affiliations, activities, and sympathies, and promising a benefit in connection therewith.

Petitioner operates a large retail department store which is located in the downtown business district of the city of Chicago, and occupies two separate buildings. The Main Store covers an entire city block and the Store for Men occupies the first five floors of an office building across Washington Street from the Main Store and is connected therewith by an underground passage at the basement level. The Main Store is bisected at street level by Holden Court, a street or alleyway owned by the company, and is used to a limited extent by company employees, and also by the public, to enter the building. Above the street level the two portions of the main building are continuous.

The store is open to the public week days from 9:15 A.M. to 5:45 P.M. There are from 7,000 to 8,000 regular employees who work a full workweek, and from 2,500 to 3,000 part-time employees who work varied hours per week. The great majority of the regular employees arrive at the store between 8:30 and 9:00 A.M. and leave between 5:15 and 6:00 P.M.

The areas of the store premises to which the general public is admitted occupy most of the space on all floors from the Budget Floor, which is the first basement under both the Main Store and the Store for Men, to and including the ninth floor of the Main Store and the fifth floor of the Store for Men. There are also some non-public areas on these floors, such as storerooms and offices. Extensive public restaurant facilities are located on the seventh floor of the Main Store and a small Budget Dinette is open to the public on the Budget Floor of the Main Store. Public washrooms are located on most of the public floors and a public waiting room is on the third floor of the Main Store.

The public is excluded from certain areas of the store. The first and second subbasements under the Main Store and the Store for Men are devoted to storerooms, receiving rooms, opening and marking rooms, offices, supply rooms, equipment rooms and various other rooms devoted to mechanical devices. In the second subbasement there is an employee cafeteria, and in the first sub-basement an employee locker room. The tenth, eleventh, twelfth and thirteenth floors of the Main Store are also non-public floors, used for offices, packing rooms, storerooms, etc. Located on a portion of the twelfth floor are certain employee facilities, including the twelfth floor Employees' Cafeteria, where food and beverages are served to employees at a reduced price. Entrances to the various non-public areas have been indicated by signs notifying the public that such areas were for the use of employees only.

In applying its non-solicitation rule the company distinguished only between those areas in its store frequented by the public and those to which the public was not admitted. However, in its findings, the Board designated three areas, by dividing the areas frequented by the public into selling areas and non-selling areas.

Starting in the summer of 1949 the Retail Clerks International Association, Local No. 1515 M.F., A.F.L.,⁶ started an organizing campaign among the company's sales people and certain merchandise handlers. Much of the soliciting for union membership was done by non-employee union organizers. As many as 20 organizers were in the store at one time, soliciting membership in the union. The employees were solicited on the selling floors as well as in the non-public areas. In spite of warnings by the company to desist, the organizers made it clear that they intended to solicit in the store, regardless of the company's rules against solicitation in various areas. Josephine Clark was one of the most persistent organizers, and made almost daily visits to the store attempting to be seen by and talk to as many employees as she possibly could. The company issued repeated warnings that organizers violating its rules against solicitation would be arrested for trespass. In April and again in May, 1950, Clark was ejected from the twelfth floor Employees' Cafeteria, and in May, 1950, she was also ejected from the second basement Employees' Cafeteria. On June 19, 1950, Clark was asked to leave the store, and when she refused, a police officer was called, whereupon Clark created a disturbance, shouting that the "millionaire company" was acting like Germans and the Gestapo. She struck the officer, overturned tables and shouted remarks derogatory to the company directed to various of its employees.

The Board found the company's rules were valid in so far as they prohibited any solicitation by all organizers in the following areas: selling floors, aisles, corridors, elevators, escalators, stairways, areas reasonably closed to discussion such as the library, and employee working areas to which either solicitor or solicitee is not allowed free access, such as storerooms which are closed to employees not engaged in that department.

The Board found, however, the company's rules were invalid in so far as they prohibited solicitation of off duty employees in the following areas: (a) by all organizers — public waiting rooms, rest rooms, and Holden Court; (b) by employee-organizers — non-public employee working areas to which both the solicitor and solicitee are permitted free access; and (c) by non-employee organizers — the Employees' Cafeterias and Restaurants.

It will be noted that the Board held invalid the company's rules barring non-employee organizers from Employees' Restaurants, where all other non-employees were similarly barred. It likewise held invalid its rules against solicitation by non-employee organizers in its public waiting room and washrooms, where all other solicitation was similarly barred. The Board ordered the company to permit non-employee union organizers to use the Employees' Cafeterias, its public waiting room and washrooms and Holden Court for union solicitation.⁷

Mr. Paul M. Herzog, Chairman of the Board, dissenting in part, said: "But I think that my colleagues have not gone far enough in reversing the Trial Examiner's erroneous holding that the Respondent violated the Act by prohibiting solicitation in the so-called non-selling public areas of the store. I would hold that prohibition lawful, except as applied to the outdoor private street. I would draw no distinction between the aisles, corridors and elevators on the one hand, and the public waiting and rest rooms on the other. It seems to me that in all these areas, and indeed in all sections of the store dedicated to the use and passage of the public — whether characterized as selling or non-selling — the Employer and its customers are entitled to be spared the disruption of their normal affairs which is bound to flow from any active union solicitation campaign. As a practical matter, all sections of a department store that are open to the public are inextricably interwoven with those which can be more literally termed `selling space.' * * * such areas contribute to the desired relationship between retailer and customer, whether facilities are provided out of necessity, or for the customer's convenience, or merely to generate good-will. They should not be converted into an arena for the organization of employees. The statute does not command that result, and this Board should not facilitate it."

The basis of the Board's decision seems to be its finding of "unique handicaps" to self-organization. The Board referred to the limited opportunity of employees to confer with fellow workers before and after working hours, and mentioned the store's continuous business activity throughout the day, which required staggered relief periods for the employees. The Board stated that the right and opportunity to communicate and consult with outside organizers is an indispensable attribute to the right of self-organization. The Board concluded that the company's right to exclude the public generally from non-public...