Big Y Foods

National Labor Relations Board - Board Decisions

Dec 21, 1994

315 N.L.R.B. 1083 (N.L.R.B. 1994)

1083
315 NLRB No. 135
BIG Y FOODS
1 On July 22, 1994, Administrative Law Judge Lowell M. Goerlich
issued the attached decision. Both the Respondent and the General
Counsel filed exceptions and supporting briefs. The General Counsel
and the Charging Party also filed reply briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The Respondent excepts to the judge’s recommendation that it
post copies of the Board’s remedial notice at all of its store prop-
erties, rather than at only the six stores where the Respondent actu-
ally denied access to the Union. We find a companywide posting re-
quirement appropriate in light of the judge’s finding that the Re-
spondent unlawfully denied access at the six stores pursuant to com-
panywide solicitation guidelines which discriminatorily exclude
unions. On the other hand, we find no need in this case for the
judge’s recommended remedial provision requiring the Respondent
to grant the Union access to its premises for the purpose of making
up for those times that the Respondent unlawfully denied access. In
accord with Board remedial precedent for the unlawful discrimina-
tory denial of access to an employer’s private property, we shall de-
lete the affirmative access requirement and order the Respondent to
cease and desist from such unlawful conduct. See, e.g., Richards
United Super, 308 NLRB 201, 202–203 (1992).
Big Y Foods, Inc. and Local 371, United Food and
Commercial Workers, AFL–CIO a/w United
Food and Commercial Workers International
Union, AFL–CIO. Cases 34–CA–6292, 34–CA–
6305, and 34–CA–6427
December 21, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The principal issue presented here is whether the
judge correctly found that the Respondent violated
Section 8(a)(1) of the Act by discriminatorily denying
nonemployee union representatives access to private
property surrounding the Respondent’s grocery stores.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,2 and conclu-
sions and to adopt the recommended Order as modi-
fied.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Big Y
Foods, Inc., Springfield, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discriminatorily denying representatives of
Local 371, United Food and Commercial Workers,
AFL–CIO a/w United Food and Commercial Workers
International Union, AFL–CIO, access to our property
for the purposes of solicitation and picketing.’’
2. Delete paragraph 2(a) and reletter subsequent
paragraphs accordingly.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminatorily deny access to our
property to the representatives of Local 371, United
Food and Commercial Workers, AFL–CIO, a/w United
Food and Commercial Workers International Union,
AFL–CIO, for the purposes of solicitation and picket-
ing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
BIG Y FOODS, INC.
John Gross, Esq., for the General Counsel.
Ralph F. Abbott, Esq. and Richard Stubbs, Esq., of Spring-
field, Massachusetts, for the Respondent.
Sidney Fox, Esq., of New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
original charge in Case 3–CA–18078 was filed by Local 371,
United Food and Commercial Workers, AFL–CIO a/w
United Food and Commercial Workers International Union,
AFL–CIO (the Union) on August 24, 1993, and a copy was
served on Big Y Foods, Inc. (the Respondent) on August 24,
1993.
The original charge in Case 3–CA–18091 was filed by the
Union on September 7, 1993, and a copy was served by cer-
tified mail on the Respondent on September 7, 1993.
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On September 13, 1993, the General Counsel issued an
order transferring case from Region 34 to Region 3 in Case
34–CA–6292 and assigning it Case 3–CA–18078.
On September 13, 1993, the General Counsel issued an
order transferring case from Region 34 to Region 3 in Case
34–CA–6305 and assigning it Case 3–CA–18091.
An order consolidating cases, consolidated complaint and
notice of hearing was issued on October 29, 1993.
The original charge in Case 1–CA–31109 was filed by the
Union on November 10, 1993, and a copy was served by
certified mail on the Respondent on November 18, 1993.
The amended charge in Case 1–CA–31109 was filed by
the Union on January 10, 1994, and a copy was served by
certified mail on the Respondent on January 12, 1994.
A complaint and notice of hearing was issued on January
24, 1994.
On February 7, 1994, the following order was issued:
An order Consolidating Cases, Consolidated Com-
plaint and Notice of Hearing issued in Case Nos. 34–
CA–6292 and 6305 (formerly 3–CA–18078 and 18091)
on October 29, 1993, and Complaint and Notice of
Hearing issued in Case No. 34–CA–6427 (formerly 1–
CA–31109) on January 24, 1994, alleging that Big Y
Foods, Inc. has been engaging in unfair labor practices
affecting commerce as set forth and defined in the Na-
tional Labor Relations Act, 29 U.S.C. 151 et seq. Based
thereon, and in order to avoid unnecessary costs or
delay, the General Counsel, by the undersigned, pursu-
ant to Section 102.33 of the Rules and Regulations of
the National Labor Relations Board, ORDERS that
these cases are further consolidated.
The consolidated complaint and the complaint alleged that
the Respondent discriminatorily prohibited representatives of
the Union from picketing and/or handbilling on the sidewalk
in front of its stores by demanding that they leave the prem-
ises and by causing the police to threaten them with arrest
all in violation of Section 8(a)(1) of the National Labor Rela-
tions Act (the Act).
The Respondent filed timely answers denying that it had
engaged in the unfair labor practices alleged.
The matter was heard on May 10 and 11, 1994, at Hart-
ford, Connecticut. Each party was afforded a full opportunity
to be heard, to call, to examine and cross-examine witnesses,
to argue orally on the record, to submit proposed findings of
fact and conclusions, and to file briefs. All briefs have been
carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF RESPONDENT
At all material times, the Respondent, a Massachusetts
corporation with its principal place of business located at 280
Chestnut Street, in the city of Springfield, Commonwealth of
Massachusetts, and grocery stores at various locations, in-
cluding Torrington, Connecticut (the Torrington store); Sey-
mour, Connecticut (the Seymour store); East Longmeadow,
Massachusetts (the East Longmeadow store); Longmeadow,
Massachusetts (the Longmeadow store); Wilbraham Road,
Springfield, Massachusetts (the Wilbraham Road store); and
St. James Avenue, Springfield, Massachusetts (the St. James
Avenue store), has been engaged in business as a grocery
store chain.
Annually, in the course and conduct of its operations at its
various facilities, including the above-named stores, the Re-
spondent derives gross revenues in excess of $50,000 from
points outside the State of Connecticut.
At all material times, the Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The pertinent facts are as follows:
(A) Union representatives attempted to pass out literature
on the Respondent’s property which urged potential cus-
tomers not to patronize the Respondent’s stores which were
nonunion but to patronize stores which were union at the
Seymour, Torrington, East Longmeadow, Longmeadow,
Wilbraham Road, and St. James Avenue stores.
In the summer months of 1993, Peter J. Sena, union rep-
resentative and organizer, went to the Torrington store for
the purpose of distributing a ‘‘Please do not patronize’’ leaf-
let. He began handbilling 25 feet from the ‘‘front entrance
of the store.’’ At the time a ‘‘preacher’’ was ‘‘collecting
food and distributing literature for the homeless, soliciting
donations’’ at about 20 feet from the store entrance. He was
sitting at a card table in line where persons from whom he
asked for donations passed into the store.
About 4 to 6 minutes after Sena commenced his leaflet
distribution, one of the stores’ management personnel ap-
peared and told Sena to get away from the property. He
‘‘shoved’’ Sena and ‘‘tried to take the leaflets out of [his]
hand.’’ He said that if Sena did not leave he was going to
call the police. Sena suggested to him ‘‘that he do that, be-
cause [his] civil rights were being violated.’’ According to
Sena, he continued to pass leaflets to customers but the man-
agement personnel ‘‘was ripping the leaflets out of the cus-
tomers hands and telling them they’re all lies and . . . he
[don’t] belong here, the police have been called.’’
The police appeared and told Sena that he was ‘‘not al-
lowed to be on the Company’s property, that it was private
property, and if [he] did not leave, that [he] would be ar-
rested for trespassing.’’ Sena protested, the police officer in-
sisted; Sena left the stores premises.
On August 19, 1993, Ronald M. Petronella, union business
agent, and Malcolm Haight commenced passing out ‘‘Please
do not Patronize’’ leaflets and picketing on the ‘‘main road’’
off company property at the Torrington store. Petronella wit-
nessed two young men, from ‘‘Pop Warner Football solicit-
ing monies out in front of the store’’ at the front entrance.
They were selling candy bars. Thereupon, union representa-
tives proceeded to handbill in front of the store. Within 5
minutes the manager came out of the store and asked
Petronella to leave. Petronella refused, ‘‘if Pop Warner Foot-
1085BIG Y FOODS
ball can solicit here, so can I.’’ The manager called the po-
lice. The police told the union representative they would
have to move or they would be arrested. They left and re-
turned to the street.
At the Seymour store on September 3, 1993, between 10
and 20 union representatives commenced passing out ‘‘Shop
in a Union Store’’ leaflets ‘‘in front of the store, in the en-
trance of the parking lot.’’ At the time two individuals from
the Knights of Columbus ‘‘had a can and they were solicit-
ing donations’’ in front of the store.
The union representatives continued leafleting for about 10
or 15 minutes when they were accosted by store representa-
tives who told them to get off the store’s property or the po-
lice would be called. Peter J. Sena, union business represent-
ative and organizer, said, ‘‘I had [a] right to be there and he
was violating my civil rights.’’ At the time, Sena was the
only one distributing leaflets. Four representatives were at
the entrance to the store. Some of the union representatives
were wearing a placard exactly like the leaflet.
The leafleting continued as the police arrived. Sena was
told by the police ‘‘you’re going to have to get off the prop-
erty, this is private property . . . the owner’s of the Com-
pany do not want you on the property.’’ Sena told the police
as long as the Knights of Columbus people had a right to
be there that he had the right to be there. The Knights of
Columbus person ‘‘left the property’’; Sena and the union
representatives followed police instructions and left the prop-
erty.
On November 5, 1993, John J. Conley, union business
agent organizer for western Massachusetts and Vermont, with
six to eight others handbilled the Respondent’s East Long-
meadow store with ‘‘Please do not Patronize’’ leaflets and
picket signs. The group parked in the store parking lot and
proceeded with their literature toward the store. A policeman
approached them ‘‘right away.’’ He told the union represent-
atives ‘‘to get off the property of the Big Y, to get out of
the parking lot, remove our vehicles from the parking lot or
we would be subject to an arrest.’’ The group walked toward
the front of the store and commenced leafleting and picket-
ing. Store supervisors appeared and talked to the police offi-
cer. The officer told the group if they did not leave he would
have them arrested. The group left.
On the same date, November 5, 1993, Conley and the
group followed the same procedure at the Longmeadow
store. They were threatened with arrest and left.
On the same date, November 5, 1993, Conley and the
group visited the St. James Avenue store in Springfield,
Massachusetts. Conley observed a woman in the lobby of the
store soliciting customers to sign a petition regarding abol-
ishing the Blue Laws of Massachusetts. Thereupon Conley
and the group began leafleting on company property. The
manager appeared and told the group to leave the store’s
property or they would call the police. The police arrived.
They told the group to leave or they would be arrested. The
group left.
On the same date, November 5, 1993, Conley and the
group went to the Respondent’s store at the 16-acre
Wilbraham Road section of Springfield, Massachusetts. The
group proceeded to leaflet in the front of the store. A man-
ager appeared and told the group to leave the front of the
store and ‘‘go to the road.’’ Police arrived and conferred
with management. The group was told if they did not move,
they would be arrested. The group left.
(B) As noted above, the Knights of Columbus, Pop War-
ner Football, and a person soliciting signatures to a petition
were permitted on store property. In addition, other groups
and organizations were permitted to use the Respondent’s
premises, i.e., Little League, Harrington Women’s Club, St.
Judes Hospital, Torrington Varsity Basketball, Oxford Dog
Pound Committee, Gathering Pentecostal Church, Christ
Church Day School, George Hummel Little League, Starr’s
Library, Springfield Christian School, Longmeadow Council
on Aging, Springfield Central High Key Club, Wilbraham
Brownie Troupe, St. Catherine’s Athletic Association, Com-
mittee to elect Attorney Barbara Green, the Lions Club, the
American X-Pows, and St. Patrick’s School.
Joanne LaPlante, store manager at the Longmeadow store,
testified that ‘‘allowing charitable organizations [and groups]
to solicit in front of [the] store was good public relations and
an opportunity to help the community,’’ but ‘‘it would hold
true that having a union representative . . . in front of the
store and informing customers that Big Y was non-union or
was charging higher prices in comparison to other area stores
would not be good for business.’’
David L. Brunnells, vice president of operations, testified
that the Respondent had a centralized policy regarding solici-
tation at its stores which was put in writing in October 1993.
Prior to that time the policy had been oral. The policy re-
quired the solicitator to fill out a ‘‘Solicitation Request
Form.’’ On the form guidelines were set out:
If you wish to request space outside one of our stores
read the following guidelines, complete this form and
return it to the store manager for pre-approval and
scheduling at least seven (7) business days prior to the
activity.
GUIDELINES
1. You must represent a charitable or non-profit
community service organization.
2. Preferably one (1) or two (2), but no more than
three (3) individuals can solicit for an organization at
one time.
3. Solicitation is only available on Fridays, Saturdays
and Sundays between the hours of 9:00 a.m. and 6:00
p.m. with a four (4) hour maximum time block in any
24 hour period.
4. No more than one (1) organization can be sched-
uled in a time block.
5. Only one pre-approved area can be utilized for so-
licitation (including locations with more than one en-
trance).
6. Entrances and/or exits to the store can not be im-
peded.
7. Organizations may only solicit once in a (90) day
time period.
8. All customers must be treated with respect and ag-
gressive behavior is prohibited.
9. Political solicitations or other activities are not
permitted at any time.
Richard Maruca, store manager at the Respondent’s Plain-
ville, Connecticut store, described the unwritten policy: ‘‘The
unwritten policy was any charitable organization could come
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In D’Alessandro’s, Inc., supra at 83, the Board opined:
[W]e find that the Union’s picketing and handbilling to inform
the public that the Respondent was nonunion was conducted, at
least in part, on behalf of employees of those unionized stores
that the Respondent’s customers were being asked to patronize.
That clearly is concerted activity that falls with the ‘‘mutual aid
or protection’’ language of Section 7.
2 The court states ‘‘a no-solicitation rule is discriminatory only if
the employer allows non-union solicitation (for example, solicitation
by charitable organizations).’’ Ibid.
3 As claimed by the Respondent, credible evidence does not sup-
port a finding that the union representatives’ conduct barred them
from use of the Respondent’s premises. Moreover, the reason that
the Respondent excluded union representatives from its property was
not because of any alleged misconduct on the part of the representa-
tives.
in to request to sit out in front of our store and solicit for
their charity. It would be written down on a calendar prior
to the event. We would let them do it on Fridays, and Satur-
days and Sundays. We would do it only during daylight
hours. And they could be there—if it was children, they
would have to be supervised by an adult, especially with the
cub scouts, the girl scouts, what have you. And we would
not let any more than one organization out there at any one
time.’’ ‘‘[W]e wouldn’t allow them more than once every 60
days.’’
Labor unions were not included under the Respondent’s
policy. ‘‘[T]hey were not to solicit in front of our store.’’
Conclusions and Reasons Therefor
The question in this case is whether the Respondent can
deny a labor union access to its premises for solicitation or
picketing while at the same time it allows charitable or non-
profit community service organizations to solicit on its prem-
ises without violating Section 8(a)(1) of the Act.
In Bristol Farms, 311 NLRB 437, 438 fn. 8 (1993), the
Board, in referring to the kind of picketing and solicitation
(informational) which was engaged in in the instant case,
said:
We find it clearly protected under the second proviso
to Sec. 8(b)(7)(C), which concerns picketing or other
publicity for the purpose of truthfully advising the pub-
lic that an employer does not employ members of, or
have a contract with, a labor organization. The right of
union representatives to engage in this type of activity
is well established. See D’Alessandros, Inc., 292 NLRB
81 (1988) (union agents’ 8(b)(7)(C) proviso picketing
and handbilling is concerted activity within ‘‘mutual aid
or protection’’ language of Sec. 7).1
Thus it is clear what the union attempted to do and did
for short intervals was protected concerted activity which
was permissible if the employer had no lawful right to bar
the nonemployee representative from its premises.
In Belcher Towing Co. v. NLRB, 614 F.2d 88, 90 (5th Cir.
1980), the court said:
A rule that prohibits solicitation, on company premises,
by non-employee union organizers is ordinarily pre-
sumed [to be] valid and will be overturned only on a
showing either that the rule discriminates against unions
by allowing other solicitation2 or that no reasonable al-
ternative means of access to the employees exist.
That part of the rule which refers to ‘‘disparate treatment’’
was undisturbed by the Supreme Court in Lechmere, Inc. v.
NLRB, 502 U.S. 527 (1992). As was said by the Board in
Davis Supermarkets, 306 NLRB 426 (1992), ‘‘Although the
Supreme Court in Lechmere v. NLRB, [499 U.S. 918 (1991)],
rejected the Board’s holding in Jean Country, the Lechmere
decision does not disturb the Court’s statement in NLRB v.
Babcock & Wilcox, 351 U.S. 105, 112 (1956), that ‘an em-
ployer may validly post his property . . . if [it] does not dis-
criminate against the union by allowing other distribution.’’’
Facts similar to the facts in the instant case were cited by
the Board:
On the same day that the Respondent refused to
allow the pickets to remain in front of the store, it per-
mitted a charitable organization to set up a table on the
sidewalk and sell raffle tickets for a car, which was
parked in the lot in front of the store. Several employ-
ees testified that they have seen church and school or-
ganizations in front of the store selling items to the Re-
spondent’s customers. [Davis Supermarkets at 426.]
The Board held:
Here there is sufficient evidence that both before and
during the time that the Union sought to picket in front
of the Respondent’s store, the Respondent allowed
other organizations unlimited access to its property for
sales and solicitations. At the same time, the Respond-
ent has denied the Union the use of the same premises
for handbilling and picketing purposes. Under these cir-
cumstances, we find the Respondent’s conduct con-
stituted unlawful disparate treatment of protected union
activity in violation of Section 8(a)(1) of the Act.
[Davis Supermarkets at 427.]
In the case of Great Scot, Inc., 309 NLRB 548 (1992), in
which a union handbills ‘‘requested customers not to shop at
the Respondent’s nonunion store and to patronize certain
named unionized stores instead’’ and in which the respond-
ent had permitted other organizations and individuals to use
its property free of charge, to solicit contributions and sell
items, the Board applied the ‘‘disparate treatment’’ analysis
of protected union activity, and found a violation of Section
8(a)(1) of the Act. See also Richards United Super, 308
NLRB 201 (1992); Food Lion, Inc., 304 NLRB 602 (1991);
D’Alessandro’s, Inc., supra; and Ordman’s Park & Shop,
292 NLRB 953 (1989).
The evidence here establishes that the Respondent, by its
rule, and the implementation of the rule, barred union rep-
resentatives from the use of its premises for informational
picketing and solicitation while allowing other organizations
and groups in accordance with the rule to freely use its
premises. Under these circumstances the Respondent’s con-
duct constituted unlawful disparate treatment of protected
union activity in violation of Section 8(a)(1) of the Act.3
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
1087BIG Y FOODS
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and it will effectuate the purposes of the Act for jurisdiction
to be exercised.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By denying the Union access to its property for the pur-
pose of solicitation and picketing while discriminatorily per-
mitting charitable or nonprofit community service organiza-
tions to solicit on its property, the Respondent violated Sec-
tion 8(a)(1) of the Act.
4. The above violations of the Act are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having unlawfully denied the Union access to its property
for the purpose of soliciting its potential customers, it is rec-
ommended that the Respondent take such action as will ef-
fectuate the purposes of the Act. It is also recommended that
in order to remedy the Respondent’s past unfair labor prac-
tices that the Respondent allow the Union access to its prem-
ises for the purpose of making up for those times it was de-
nied the right to solicit and that in the future the Respondent
grant the Union the same solicitation and picketing privileges
on a nondiscriminatory basis that it permits to others under
the rules.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Big Y Foods, Inc., Springfield, Massa-
chusetts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully denying access to its property for purposes
of solicitation and picketing by the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Grant the Union immediate access to all the Respond-
ent’s store properties for the purpose of solicitation and pick-
eting on a lawful nondiscriminatory basis in accordance with
the remedy section of this decision and comply fully with the
remedy.
(b) Post at all stores copies of attached notice marked
‘‘Appendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.