Central Hardware Company v. NLRB

• Decision Date: 19 October 1972
• Docket Number: No. 20199.,20199.
• Citation: 468 F.2d 252
• Parties: CENTRAL HARDWARE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Clerks Union, Local 725 Retail Clerks International Association, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

468 F.2d 252 (1972)

CENTRAL HARDWARE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Clerks Union, Local 725 Retail Clerks International Association, AFL-CIO, Intervenor.

No. 20199.

United States Court of Appeals, Eighth Circuit.

Submitted September 13, 1972.

Decided October 19, 1972.

Norton J. Come, Asst. Gen. Counsel, Washington, D. C., Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., for respondent.

Keith E. Mattern, Ronald L. Aylward, St. Louis, Mo., for petitioner.

Before VAN OOSTERHOUT, Senior Circuit Judge, MEHAFFY, Circuit Judge, and DENNEY,^* District Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

This case is again before us by virtue of decision of the Supreme Court in Central Hardware Company v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), and mandate issued thereon vacating our judgment entered April 30, 1971, based on our opinion filed March 24, 1971, reported at 439 F.2d 1321, and remanding the case to us to determine the issue of whether there is substantial evidence in the record as a whole to support a finding of the Trial Examiner, approved by the Board, that "there are no reasonable means available to nonemployee representatives of the Union to reach respondent's employees with its organizing message other than by having those representatives meet them on respondent's parking lots." As stated by the Supreme Court, such issue is not reached by the majority in the prior opinion by this court.

As noted in our prior opinion, Central Hardware had been charged with and found guilty of a number of unfair labor practices by the Board in its order reported at 181 NLRB 491 (1970). Our prior opinion upholds the Board on some of its determinations and grants enforcement and denies enforcement with respect to other charges, all as set out in the opinion. The only issue raised in the Supreme Court and now before us on remand is the propriety of enforcing that part of the Board's order requiring Central Hardware to cease and desist from enforcing its rule prohibiting nonemployee Union organizers from using its parking lots to solicit employees for Union membership.

A panel of this court, with Judge Gibson dissenting, in agreement with the Board held this case is controlled by Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U. S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), and not by National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), as urged by Central Hardware.

The factual background of this litigation is fully set out in the opinion of the Supreme Court and our prior opinion. The Supreme Court has authoritatively determined that under the facts of this case the controlling principles are those stated in Babcock and that for reasons set out in the opinion, the Board and this court erroneously applied the principles set forth in Logan Valley. The Supreme Court in its remanding opinion sets out the Babcock principle to be applied as follows:

"The Court in Babcock stated the guiding principle for adjusting conflicts between § 7 rights and property rights:

`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. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.\'

The principle of Babcock is limited to this accommodation between organization rights and property rights. This principle requires a `yielding\' of property rights only in the context of an organization campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees\' § 7 rights. After the requisite need for access to the employer\'s property has been shown, the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer\'s premises; and (iii) the duration of organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns, and the `yielding\' of property rights it may require is both temporary and minimal."

The concluding paragraph of the Supreme Court opinion reads:

"The Trial Examiner concluded that no reasonable means of communication with employees were available to the nonemployee Union organizers other than solicitation in Central\'s parking lots. The Board adopted this conclusion. Central vigorously contends that this conclusion is not supported by substantial evidence in the record as a whole. The Court of Appeals did not consider this contention, because it viewed Logan Valley as controlling rather than Babcock & Wilcox. The determination whether on the record as a whole there is substantial evidence to support agency findings is a matter entrusted primarily to the Courts of Appeals. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Since the Court of Appeals has not yet considered this question in light of the principles of NLRB v. Babcock & Wilcox, 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), the judgment is vacated, and the case will be remanded to that court for such consideration."

The Trial Examiner made a finding reading:

"I conclude that there are no reasonable means available to nonemployee representatives of the Union to reach respondent\'s employees with its organizing message other than by having those representatives meet them on respondent\'s parking lots."

The Examiner in his discussion of the issue before us on remand recites that on complaint of Central's employees, Central adopted and enforced a nonemployee no-solicitation rule on or about July 15, 1968, and that prior to July 22, 1968, the Union had compiled a list of the names and addresses of approximately 80% of Central employees at the stores here involved in the Union organization campaign, and that it would have been impossible to compile such list without the parking lot solicitations. Such information was obtained before the adoption and enforcement of the challenged no-solicitation rule. The materiality of this evidence is that the Union had in its possession the names and addresses of 80% of the employees.

The Examiner in making his finding...