December 13, 1972
SCHOLLE CHEMICAL CORPORATION ET AL., PETITIONERS-CROSS RESPONDENTS
*FN* NATIONAL LABOR RELATIONS BOARD, RESPONDENT-CROSS PETITIONER.
Before FAIRCHILD and SPRECHER, Circuit Judges, and CAMPBELL, Senior District Judge*fn**
Per Curiam: Petitioners, the three Scholle Corporations, seek review of an order of the National Labor Relations Board finding that Scholle interfered with, restrained, and coerced its employees in the exercise of their organizational rights in violation of § 8(A) (1) of the National Labor Relations Act by refusing to permit non-employee union organizers to distribute leaflets and handbills and to solicit Scholle employees on Scholle property. The Board ordered Scholle to permit union*fn1 organizers to distribute union literature and to solicit union membership at points within Scholle's parking lots and to post appropriate notices. The Board has filed a cross application for enforcement of its order. Thus, the question is whether the Board's findings and order are supported by substantial evidence in the record.
The pertinent facts are not disputed by either party. The three Scholle Companies are located in a single plant building within an industrial tract in the Chicago suburb of Northlake, Illinois, near the intersection of North Avenue and Railroad Avenue. North Avenue is a four-lane thoroughfare running east and west through Chicago and certain of its western suburbs. The speed limits is posted at forty miles per hour and the average daily traffic load in both directions is about 38,000 vehicles. Railroad Avenue is a private road owned by the Automatic Electric Company, the principal occupant of the industrial tract. Scholle owns an easement over Railroad Avenue which runs north of North Avenue, perpendicular to it and dead-ends in Automatic Electric's parking lots. It is a paved, three-lane road with a posted speed limit of thirty miles per hour. Traffic control lights at the intersection of North and Railroad Avenues and traffic signs on Railroad Avenue itself are owned and maintained by Automatic Electric.
The Scholle plant is located on the west side of Railroad Avenue. The entrances to the plant itself, and to three adjoining company parking lots face Railroad Avenue.
Scholle employs about 350 people at its Northlake plant. None of the employees reside on the premises; approximately 27% of them reside in the town of Northlake itself, approximately 30% live in suburban DuPage County, approximately 15% live in Chicago, and the remaining 28% reside in suburbs other than Northlake or DuPage County.
Scholle's employees, as well as almost all of Automatic Electric's 11,000 employees, arrive and leave the premises by private automobile. Approximately 40% of Automatic Electric's employees use Railroad Avenue in entering or leaving the industrial tract. Shifts of the two companies overlap with the result that during the short period of time when the shifts change, it is almost impossible to distinguish Scholle employees from Automatic Electric employees.
The union's organizational campaign commenced in October of 1969. Tony Hall, an International representative of the union, met with two Scholle employees to discuss possible organization. The next day Hall and another union representative, Frank Ryan, visited Scholle's plant and while standing near the main entrance attempted to speak with the employees and distribute to them envelopes containing a handbill and authorization cards. Scholle's personnel manager informed the union representatives that Railroad Avenue was a private road and that all non-employee solicitations and distributions on the property were prohibited*fn2 Hall and Ryan then moved to the intersection at North Avenue and Railroad Avenue where they determined that because of the heavy traffic and the impossibility of ascertaining which of the passing cars contained Scholle employees, further handbilling would not be productive. Another attempt at handbilling was made, however, on November 11th but after about one hour at the entrance to the Scholle plant only 120 handbills had been distributed.
On November 8, 1969, Hall met again with the two Scholle employees who brought him an old Christmas mailing list. The list was not helpful, however, because it was out of date and contained mainly supervisors' addresses. On November 21, 1969, Hall wrote Scholle requesting access to the plant entrances for distribution of leaflets but the request was rejected on December 2, 1969. Later Hall wrote to Scholle requesting a list of names and addresses of all current hourly employees but received no response from the Company.
On April 21, 1970, Hall again attempted to handbill Scholle's employees after having been informed that Automatic Electric was on strike. After spending over two hours at the intersection during shift changing times, this effort also proved unsuccessful.
Hall also attempted several mailings to the Scholle employees. As previously stated, Hall was unable to acquire a list of current names and addresses from the Company and a Christmas list provided by Scholle employees proved to be of no use. On January 28, 1970, Hall wrote to about 40 employees requesting assistance in compiling a current mailing list. On February 12, a mailing containing authorization cards and self-addressed envelopes was sent to 70 employees. Subsequent mailings to 150 Scholle employees and 220 Scholle employees were also attempted, again with the enclosed authorization cards and self-addressed envelopes. Hall testified that he was never sure of the accuracy either of the employees' names or addresses.
No other methods of communicating with Scholle employees, such as by newspaper advertisements or radio communications, by bumper stickers or placards, or by using loud speakers, were attempted by the union.
As both parties recognize, the principles governing non-employee solicitations on an employer's property are set forth in NLRB v. Babcock and Wilcox , 351 U.S. 105 (1956). There the Supreme Court articulated the guidelines for adjusting conflicts between the employees' organizational rights under § 7 of the Act and the employer's property rights:
"Organization rights are guaranteed 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 non-employees 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." 351 U.S. 105, 112.
The accommodation principle enunciated in Babcock was recently reaffirmed by the Supreme Court in Central Hardware Company v. NLRB , 407 U.S. 539 (1972). Thus, the question before us is whether there is substantial evidence in the record to support the Board's finding that because of the inaccessibility of the Scholle employees, reasonable attempts by non-employees to communicate with them through the usual channels were ineffective.
Since the relatively small work force of Scholle employees was diffused through the City of Chicago and the various suburbs surrounding Northlake, Illinois, it can be seen that communication with them through the customary media channels was rendered unavailable in a practical sense. Also, because attempts at acquiring a mailing list from Scholle had proved unsuccessful and because the mailing list ultimately utilized was not known to be current or accurate, communication through the mails or by way of home visits was also impractical. Handbilling at the intersection of North and Railroad Avenues was clearly ineffective because of the problems of heavy traffic and of identification of Scholle employees.
We conclude from the evidence recited above that "the reasonable attempts by non-employees to communicate with them through the usual channels" were completely ineffective and non-productive. Although reasonable efforts at communication were made by the union, the Scholle employees remained inaccessible. Under these circumstances, the teachings of Babcock require that Scholle's property rights yield to the extent necessary to permit communication with respect to organizational rights.
The authorities relied upon by Scholle are inapposite for in each instance feasible and effective methods of communication were available to the union organizers. In General Dynamics , 137 NLRB 1725 (1962), the union had access to all five of the entrances to the company plant and could reach the employees who walked to work and distribute handbills to those employees who rode buses. The record in Monogram Models, Inc. , 192 NLRB 99 (1971), discloses that employees could be solicited while awaiting company transportation and that handbilling on the public portion of the access road leading to Monogram's parking lots reached many of the employees. Similarly in Falk Corporation , 192 NLRB No. 100 (1971), 25% of the employees could be reached through handbilling, a comprehensive mailing list could be compiled, and all other methods of communication listed in Babcock were available to the union. Nor is the recent decision of the Court of Appeals for the Eighth Circuit following remand from the Supreme Court in Central Hardware Company v. NLRB , - F.2d - (October 19, 1972), of any assistance to Scholle's position here. There the union possessed a current and accurate list of the names and addresses of approximately 80% of Central's employees, thus facilitating communication through the mails. Also, because of the proximity of the employees' residences to the company's stores, home visits were also an available method of communication. We find that each of these cases is readily distinguishable from the situation before us.
For the reasons set forth herein, the petition to set aside the order of the National Labor Relations Board is denied and the cross-application for enforcement of the order is granted.