Bristol Farms

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 437 (N.L.R.B. 1993)

437
311 NLRB No. 46
BRISTOL FARMS
1 All dates are in 1991, unless otherwise noted.
2 The parties disputed whether the Respondent was displaying or
selling merchandise on the sidewalk during the period that the Union
engaged in handbilling and picketing there. The judge did not re-
solve this issue, and we find it unnecessary to do so. For purposes
of analysis, we shall assume that the Respondent, as it contended,
was using the sidewalk area for display and sale of merchandise dur-
ing the period of the Union’s handbilling and picketing.
3 This conclusion is supported by the affirmative testimony of two
witnesses. Although the Respondent’s general manager testified sum-
marily that the Respondent received complaints from customers that
they were interfered with and harassed by handbillers or picketers,
the Respondent failed to present any evidence of the particulars of
any individual complaint or any witness to any incident of inter-
ference or harassment.
4 The General Counsel does not allege that, in securing this
amendment to the lease, the Respondent was prompted by antiunion
considerations.
5 291 NLRB 11 (1988).
6 Indeed, in Lechmere, although the Supreme Court, reversing the
Board, recently held that an employer lawfully barred union organiz-
ers from a shopping center parking lot owned by the employer, the
Court did not grant certiorari to consider the Board’s holding, af-
firmed by the court of appeals, Lechmere, Inc. v. NLRB, 914 F.2d
313, 325 (1st Cir. 1990), that the same employer violated the Act
by attempting to expel the organizers from public property adjoining
Continued
Bristol Farms, Inc. and United Food and Commer-
cial Workers International Union, Local 1442,
AFL–CIO. Case 31–CA–18839
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On May 20, 1992, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
General Counsel and the Union filed exceptions and
supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
Finding that the Respondent possessed a sufficient
property right in its front sidewalk area to exclude the
Union’s picketers and handbillers, the judge concluded
that their exclusion did not violate Section 8(a)(1) of
the Act. We do not agree.
The Respondent’s gourmet grocery store, one of two
anchor stores in Manhattan Marketplace, a strip shop-
ping center in Manhattan Beach, California, opened in
January 1991.1 The Respondent leases the store build-
ing from Mission-CCH1, which owns and operates the
shopping center. The store is separated from the street
by a substantial parking lot.
On April 4, union agents who were not employees
of the Respondent began peacefully handbilling and
picketing in the covered sidewalk area outside the
store’s doors. They wore sandwich boards bearing the
following message: ‘‘Please! Do not shop at this non-
union Bristol Farms Store. The employees at this store
are not covered by a collective bargaining agreement.’’
The union agents also passed out handbills asking cus-
tomers not to shop at the store and directing them to
other listed ‘‘union stores’’ in the area. Normally two
individuals at a time took part in the handbilling and
picketing.
The Respondent, at least at times, used the sidewalk
area outside its doors for the display and sale of a
changing array of merchandise, such as pizza, hot
dogs, plants, or pumpkins.2 The record shows that the
union agents who handbilled or picketed in the side-
walk area did not interfere with the Respondent’s con-
duct of its business or any person’s ingress to or egress
from the Respondent’s store.3
On April 29, the Respondent and Mission-CCH1
amended the Respondent’s lease to add a new para-
graph providing, inter alia:
Tenant has the exclusive right to use the area in
front of Tenant’s store up to the edge of the curb
for the sale of merchandise from the sidewalk
area in front of Tenant’s store building; provided,
however, that Tenant’s sale of merchandise from
the sidewalk area will not unreasonably interfere
with vehicular and/or pedestrian traffic in the
Shopping Center.
Subsequent to amendment of the lease, the Respondent
on May 10 excluded the Union’s agents from the door-
way entrance under threat of arrest.4
In dismissing the complaint, the judge rejected the
General Counsel’s argument that the Respondent did
not possess a sufficient property interest in the side-
walk in front of its store to exclude trespassers. Rather,
the judge found that, under the lease, the Respondent’s
property rights in the sidewalk area rose to the level
of exclusory rights as contemplated under Board prece-
dent. He summarily rejected the General Counsel’s
contention that under California law even the fee sim-
ple owner of a shopping center store and adjacent side-
walk lacks a property right to exclude handbillers and
picketers from the sidewalk in front of the store. Fi-
nally, the judge found that the Supreme Court’s deci-
sion in Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992),
which issued after the hearing closed in this case, pre-
cludes the finding of a violation under a Jean Country5
balancing of interests theory.
In considering the issues raised by this case, we bear
in mind the following general principles. It is beyond
question that an employer’s exclusion of union rep-
resentatives from public property violates Section
8(a)(1), so long as the union representatives are en-
gaged in activity protected by Section 7 of the Act.6
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the shopping center. On remand, the Board reaffirmed its finding of
this particular unfair labor practice. Lechmere, Inc., 308 NLRB 1074
(1992).
7 This precept is not altered by the Supreme Court’s decision in
Lechmere. The employer there owned the shopping center parking
lot from which it excluded the union organizers and it possessed a
sufficient property interest to exclude individuals from the parking
lot.
8 There is no contention that the union agents’ picketing and
handbilling was not protected activity. We find it clearly protected
under the second proviso to Sec. 8(b)(7)(C), which concerns picket-
ing 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 en-
gage in this type of activity is well established. See D’Alessandro’s,
Inc., 292 NLRB 81 (1988) (union agents’ 8(b)(7)(C) proviso picket-
ing and handbilling is concerted activity within ‘‘mutual aid or pro-
tection’’ language of Sec. 7); see generally Longshoremen ILA Local
1416 v. Ariadne Shipping Co., 397 U.S. 195, 202 (1970) (White, J.,
concurring) (picketing by nonemployees protesting substandard wage
conditions protected by Sec. 7); NLRB v. Teamsters Local 639 (Cur-
tis Bros.), 362 U.S. 274, 281–282 (1960) (recognitional picketing
protected by the Act except where specifically prohibited); Garner
v. Teamsters Local 776, 346 U.S. 485, 499–500 (1953) (state court
injunction of nonemployees’ organizational picketing found im-
proper; freedom of unions to engage in picketing except where spe-
cifically prohibited by the Act found to serve the public interest).
9 That the National Government ‘‘preserves’’ property rights pre-
sumably was a reference to the fifth amendment’s prohibition on the
See, e.g., Gainesville Mfg. Co., 271 NLRB 1186
(1984). Further, an employer’s exclusion of union rep-
resentatives from private property as to which the em-
ployer lacks a property right entitling it to exclude in-
dividuals likewise violates Section 8(a)(1), assuming
the union representatives are engaged in Section 7 ac-
tivities.7 See Polly Drummond Thriftway, 292 NLRB
331 (1989), enfd. mem. 882 F.2d 512 (3d Cir. 1989);
Barkus Bakery, 282 NLRB 351 (1986), enfd. mem. sub
nom. NLRB v. Caress Bake Shop, 833 F.2d 306 (3d
Cir. 1987).
On the other hand, when nonemployee union rep-
resentatives engaging in Section 7 activity are ex-
cluded from private property by an employer possess-
ing a property right that (aside from any Sec. 7 privi-
lege the union representatives might have to remain on
the property) entitles the employer to exclude them,
there is a conflict between the union’s Section 7 rights
and the employer’s property right. In such cir-
cumstances, due to the conflict between these two
rights, a more complex analysis is required to deter-
mine if the employer’s exclusion of the union rep-
resentatives violates the Act. The contours of this type
of conflict have been addressed by the Supreme Court
in a series of decisions from NLRB v. Babcock &
Wilcox Co., 351 U.S. 105 (1956), to Lechmere, above.
In cases arising under the Act, although employers’
property rights must be given appropriate respect, an
employer need not be accorded any greater property
interest than it actually possesses. Thus, the analysis
that applies when Section 7 rights and property rights
conflict is not appropriately invoked as to an employer
that possesses only a property right that, under the law
that creates and defines the employer’s property rights,
would not allow the employer to exclude the individ-
uals. Johnson & Hardin Co., 305 NLRB 690 (1991).
In the present case, the initial question is whether
the Respondent possessed a property right that, without
considering any possible Section 7 privilege that the
union agents may have had, entitled the Respondent to
exclude them from the sidewalk area in front of its
store. If it did, the Respondent’s conduct must be ex-
amined under the case law applied when there are con-
flicting Section 7 and property rights. If it did not,
however, this case presents no conflict between Sec-
tion 7 rights and property rights, and the case law con-
cerning such conflicting rights is not implicated.8 See
Johnson & Hardin Co., above.
To determine whether the Respondent had a prop-
erty right entitling it to exclude the union agents from
the sidewalk in front of its store, we must look to the
law that created and defined the Respondent’s property
interest. It is well-established that property rights gen-
erally are created by state, rather than Federal, law. As
the Supreme Court stated in Board of Regents v. Roth,
408 U.S. 564, 577 (1972):
Property interests, of course, are not created by
the Constitution. Rather they are created and their
dimensions are defined by existing rules or under-
standings that stem from an independent source
such as state law . . . .
The Court reiterated a similar notion in Pruneyard
Shopping Center v. Robins, 447 U.S. 74, 84 (1980):
Nor as a general proposition is the United States,
as opposed to the several States, possessed of re-
sidual authority that enables it to define ‘‘prop-
erty’’ in the first instance.
Even Babcock & Wilcox, the seminal case in the
Court’s delineation of the limits of an employer’s right
to exclude union organizers from the employer’s pri-
vate property, touched on the origin of the private
property rights in question. The Court stated:
Organization rights are granted to workers by the
same authority, the National Government, that
preserves property rights. [351 U.S. at 112.]
In stating that the National Government ‘‘preserves’’
property rights while ‘‘grant[ing]’’ organization rights,
the Court indicated implicitly that the property rights
it was protecting were not granted by the Federal Gov-
ernment.9
439BRISTOL FARMS
deprivation of property without due process and the taking of private
property for public use without just compensation.
10 We note there is no evidence that the Respondent had adopted
any reasonable time, place, or manner rules concerning picketing or
handbilling on the sidewalk in front of its store, assuming arguendo
it had an adequate property interest to do so. In any event, we have
found that the Union’s picketing and handbilling did not interfere
with the Respondent’s conduct of its business or ingress to and
egress from its store.
11 In light of this conclusion, we find it unnecessary to pass on
the judge’s analysis of the Respondent’s lease or his conclusion that
the Supreme Court’s decision in Lechmere precludes the finding of
a violation under a Jean Country balancing of interests theory.
12 In view of the heavy burden unions must generally shoulder of
showing lack of reasonable alternative means of communication in
order to justify trespassory area standards activity, Member Oviatt is
troubled by a result that forces any employer to grant access to prop-
erty it owns or leases without requiring an alternative-means show-
ing by the union seeking access for this purpose. See his dissent in
Oakland Mall, 304 NLRB 832 (1991). Nonetheless, the issue here
is one of state law, and the U.S. Supreme Court has conclusively
established in Pruneyard that a state may interpret its constitution
to authorize more expansive rights of free speech than those con-
ferred under the first amendment, and specifically has approved Cali-
fornia’s conferral of these rights on those seeking access to a pri-
vately owned shopping mall. Consequently, Member Oviatt is con-
strained to find under California law that the Respondent cannot rely
on its leasehold interest to eject the union agents from its sidewalk.
To determine the nature and extent of the Respond-
ent’s property interest in the sidewalk in front of its
store, we must, therefore, look to the law of the State
of California, the State where the Respondent’s store
is located. See Johnson & Hardin Co., above (state
law examined to determine employer’s property right).
California law both grants and defines the extent of the
property rights of shopping center owners and their
tenant stores. Under California law, neither a shopping
center nor its individual tenant-retailers have a right to
prohibit individuals from handbilling or picketing on
the shopping center premises, including in front of in-
dividual stores in the shopping center, even though the
shopping center is privately owned. In Robins v.
Pruneyard Shopping Center, 153 Cal.Rptr. 854, 592
P.2d 341 (Cal. 1979), affd. 447 U.S. 74 (1980), the
California Supreme Court found that a shopping center
did not have a right to expel from its premises high
school students soliciting signatures for a petition op-
posing a United Nations resolution, although the court
found that the shopping center could adopt reasonable
time, place, and manner rules concerning such activity.
The court concluded that the shopping center’s prop-
erty right was limited by the free speech and petition
sections of the California constitution, which encom-
passed the students’ activity. In so holding, the court
relied, inter alia, on prior California Supreme Court de-
cisions finding that a shopping center lacked the right
to enjoin as trespass a union’s picketing on the pri-
vately owned sidewalk in front of a bakery within the
shopping center, Schwartz-Torrance Investment Corp.
v. Bakery Workers Local 31, 40 Cal.Rptr. 233, 394
P.2d 921 (Cal. 1964), and that a local trespass ordi-
nance could not prohibit a union officer from distribut-
ing handbills on a privately owned sidewalk outside a
doorway to a supermarket, In re Lane, 79 Cal.Rptr.
729, 457 P.2d 561 (Cal. 1969).
The U.S. Supreme Court, affirming the California
Supreme Court’s Pruneyard decision, upheld Califor-
nia’s right to restrict the property rights of shopping
centers to a greater extent than that required by the
Federal Constitution. Pruneyard Shopping Center v.
Robins, 447 U.S. 74 (1980). Subsequently, California
courts have found the California Supreme Court’s
Pruneyard decision to apply to a union’s distribution
of handbills in a shopping center, Northern California
Newspaper Organizing Committee v. Solano Associ-
ates, 239 Cal.Rptr. 227 (Cal.App. 1 Dist. 1987), and
to encompass exercises of free speech and petition at
shopping centers other than the solicitation of signa-
tures, Westside Sane/Freeze v. Ernest W. Hahn, Inc.,
274 Cal.Rptr. 51 (Cal.App. 2 Dist. 1990).
Consequently, it appears that under California law
the Respondent did not have a right to exclude the
union agents from the sidewalk in front of its grocery
store and would not have possessed such a right even
if it had possessed complete ownership of that side-
walk. Thus, the union agents’ engaging in Section 7
activities on that sidewalk did not interfere with any
property right of the Respondent.10 The law concern-
ing conflicts between Section 7 rights and property
rights is, therefore, not applicable to this case. Rather,
under the settled precedent discussed above, we find
that the Respondent’s exclusion of the union agents,
who were engaged in Section 7 activity, from the side-
walk in front of its store on May 10, 1991, violated
Section 8(a)(1) of the Act.11 See Johnson & Hardin
Co., above; Giant Food Stores, 295 NLRB 330 (1989),
motion for reconsideration denied 298 NLRB 410
(1990); Polly Drummond Thriftway, above; Barkus
Bakery, above.12
CONCLUSION OF LAW
By prohibiting representatives of United Food and
Commercial Workers Union, Local 1442, AFL–CIO
from engaging in peaceful picketing and handbilling
protected by the Act on the sidewalk in front of the
Respondent’s store in the Manhattan Marketplace
shopping center, Manhattan Beach, California, and
threatening such representatives with arrest if they did
not cease engaging in such activity, the Respondent
has violated Section 8(a)(1) of the Act.
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 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.’’
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) of the Act, we shall order it to cease and desist
and to take certain affirmative action that will effec-
tuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Bristol Farms, Inc., Manhattan Beach,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Prohibiting representatives of United Food and
Commercial Workers Union, Local 1442, AFL–CIO
from engaging in peaceful picketing and handbilling
protected by the Act on the sidewalk in front of the
Respondent’s store in the Manhattan Marketplace
shopping center, Manhattan Beach, California, and
threatening such representatives with arrest if they do
not cease engaging in such activity, as long as that ac-
tivity is conducted by a reasonable number of persons
and does not unduly interfere with the normal use of
facilities or operation of businesses not associated with
the Respondent’s store.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its store at the Manhattan Marketplace
shopping center copies of the attached notice marked
‘‘Appendix.’’13 Copies of the notice, on forms pro-
vided by the Regional Director for Region 31, after
being signed by the Respondent’s authorized represent-
ative, 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 no-
tices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
WE WILL NOT prohibit representatives of United
Food and Commercial Workers Union, Local 1442,
AFL–CIO from engaging in peaceful picketing and
handbilling protected by the Act on the sidewalk in
front of our store in the Manhattan Marketplace shop-
ping center, Manhattan Beach, California, and threaten
such representatives with arrest if they do not cease
engaging in such activity, as long as that activity is
conducted by a reasonable number of persons and does
not unduly interfere with the normal use of facilities
or operation of businesses not associated with our
store.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
BRISTOL FARMS, INC.
Ann Reid Cronin, Esq., for the General Counsel.
David Adelstein, Esq. (Schwartz, Steinsapir, Dorhmann &
Sommers), of Los Angeles, California, for the Charging
Party.
Steven M. Steese, Esq., of Gardena, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on November 19, 1991, in Los Ange-
les, California, pursuant to a complaint and notice of hearing
issued by the Regional Director for Region 31 of the Na-
tional Labor Relations Board (the Board) on June 25, 1991,
based on a charge filed on May 14, 1991, and docketed as
Case 31–CA–18839 by the United Food and Commercial
Workers International Union, Local 1442 (the Charging Party
or the Union) against Bristol Farms, Inc. (Respondent).
Posthearing briefs were received on January 21, 1992.
The complaint alleges that Respondent’s agents excluded
union agents from the sidewalk at the entrance to Respond-
ent’s Manhattan Beach store in violation of Section 8(a)(l) of
the National Labor Relations Act (the Act). Respondent de-
nies that its conduct violated the Act.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
441BRISTOL FARMS
1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, or unchallenged credible evi-
dence.
On the entire record, including helpful briefs from the
General Counsel and Respondent, and from my observation
of the witnesses and their demeanor, I make the following1
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a California
corporation with an office and place of business in Manhat-
tan Beach, California, where it has been engaged in the retail
grocery business. Respondent as part of its business oper-
ations annually enjoys revenues in excess of $500,000 and
annually purchases and receives goods or services from out-
side the State of California of a value in excess of $50,000.
Respondent is therefore an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates grocery stores in Southern California
including a new facility (the store) in the newly constructed
Manhattan Marketplace shopping center (the shopping cen-
ter) on Rosecrans Avenue in Manhattan Beach, California.
At all relevant times the store’s employees have not been
represented by a labor organization.
The Union represents employees in the retail trade in the
geographical area in which the store is located. Among those
represented employees are employees of employers who are
competitors of the store.
B. The Store
1. The physical layout
The store is one of two anchor tenants in the Manhattan
Marketplace, a new strip mall shopping center which was not
as yet fully occupied at the time of the events at issue herein.
The shopping center is located on Rosecrans Avenue in
Manhattan Beach, California, and is accessible from a main
shopping center entrance and a second entrance to the west.
The store and a drugstore, the two main or anchor stores in
the shopping center, as well as a few smaller stores are in
a row parallel to but well set back from Rosecrans and sepa-
rated from it by a substantial parking lot. These stores all
face toward Rosecrans and are fronted by a sidewalk or
promenade. A separate, smaller strip of stores abuts the side-
walk at Rosecrans and proceeds directly away from the street
toward the setback store strip at right angles to it.
The store building is essentially rectangular with an en-
closed area of about 25,000 square feet. The roof of the
structure overhangs the front sidewalk area providing a cov-
ered area Respondent utilizes for the display and sale of mer-
chandise. The building has a main door which, while located
on the front wall of the structure, is well under the portico.
2. Respondent’s interest in the property
The shopping center has at all times material been owned
and operated by Mission-CCH1, a California state limited
partnership (the Landlord). Respondent and the Landlord en-
tered into a lease agreement on September 25, 1989, and
amended the lease on January 5, 1990, and April 29, 1991.
The agreement (the Original Lease), which refers to Re-
spondent as ‘‘Tenant,’’ sets forth the premises covered at
numbered section F by referencing exhibit A. The identifying
marks placed on exhibit A make it clear that Respondent’s
leased property is the building itself and does not extent to
the surrounding areas. The lease provides in section 5 for a
‘‘Common Area’’ which is defined in paragraph 5.1 Defini-
tion:
The ‘‘Common Area’’ is that area within the Shop-
ping Center which is neither occupied by building (ex-
cluding roof overhangs and canopies, columns support-
ing roof overhangs and canopies and subsurface foun-
dations) nor devoted permanently to the exclusive use
of a particular tenant . . . .
Section 5.2 of the lease provides that the Landlord shall
keep the original construction of common area improvements
in a neat and level condition. Sections 5.4 and 5.6 provide
for allocation of costs of operation and maintenance of the
common area among tenants. Section 5.3 of the lease pro-
vides for nonexclusive use of the common areas by the
Landlord, tenants, subtenants, customers, invitees etc. Section
5.7 gives the Landlord ‘‘general possession and control over
the entire Common Area . . .’’
The Third Amended Lease entered into on April 29, 1991,
made a single change. It inserted a new paragraph, paragraph
5.l0:
5.10 Sidewalk: It is agreed that Tenant has the exclu-
sive right to use the area in front of Tenant’s store up
to the edge of the curb for the sale of merchandise from
the sidewalk area in front of Tenant’s store building;
provided, however, that Tenant’s sale of merchandise
from the sidewalk area will not unreasonably interfere
with vehicular and/or pedestrian traffic in the Shopping
Center. Tenant shall, at its sole cost and expense, main-
tain the area in a neat and clean condition and repair
any damage to the sidewalk area caused by periodic or
seasonal sales and Tenant’s obligations shall not be
considered a Common Area expense.
3. Events
The store opened for business in January 1991. On or
about April 4, 1991, agents of the Union located themselves
at the outside of the store’s door but under the structure’s
outside roofed area. This placed them well within the area
used by Respondent to display merchandise offered for sale.
They initially wore sandwich boards bearing the message:
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In a related case involving similar issues and conduct at the same
shopping center, see JD(SF) 69–92 issued by me this date, the Gen-
eral Counsel’s brief was submitted 2 days after Lechmere and the
Jean Country balancing theory of a violation was withdrawn.
PLEASE!
DO NOT SHOP
AT THIS
NON-UNION
Bristol Farms
STORE.
THE EMPLOYEES AT THIS
STORE ARE NOT COVERED
BY A COLLECTIVE
BARGAINING AGREEMENT
The union agents also passed out handbills asking customers
not to shop at the store and directing customers to other
‘‘Union Stores’’ listed by name and address in the area.
Respondent’s employees at all relevant times have not
been represented by a labor organization, nor did the Union
at any time demand recognition from Respondent concerning
its store employees. The handbilling continued at the door-
way entrance until May 10, 1991, on which date Respond-
ent’s agents excluded them from the area under threat of ar-
rest. The handbilling stopped until late July at which time it
resumed until early September 1991.
4. Analysis and conclusions
The Board has repeatedly addressed the situation where
property holders act to exclude employees and or union
agents from their property. The Board’s cases have identified
the property interests and the rights under the Act in conflict
and determined in given situations whether or not the former
rights allowed exclusion of the latter from the property.
The instant case at trial seemed to again present the bal-
ancing process putting the property interests of Respondent
and the rights of the Union into the scales. This seemingly
conventional litigation was overtaken by events and the
evolving law discussed infra. The change in the law and its
implications for the instant case are discussed initially below.
Thereafter the remaining case of the General Counsel is ad-
dressed.
a. The Supreme Court’s January 27, 1992 decision in
Lechmere Inc. v. NLRB
This case was tried and briefed with the Board’s lead case
of Jean Country, 291 NLRB 11 (1988) (Jean Country), in
the minds of all parties. The record closed on November 7,
1991, and posthearing briefs were submitted on January 21,
1992. Less than 1 week later, on January 27, 1992, the Su-
preme Court issued its decision in Lechmere, Inc. v. NLRB,
112 S.Ct 841 (1992), 139 LRRM 2225 (1992) (Lechmere),
rejecting substantial portions of the Board’s Jean Country
analysis.
Counsel for Respondent submitted the Court’s decision to
me after the filing of briefs. The General Counsel has not
readdressed the case since its earlier submitted brief.2
Assuming the General Counsel’s Jean Country theory of
a violation is still before me for consideration, I find the
Board’s decision has been rejected by the Court in Lechmere,
supra. It follows therefore that the General Counsel’s bal-
ancing of interests theory herein is without merit.
b. The General Counsel’s attack on Respondent’s
property rights herein
The General Counsel also argues that only Respondent and
not the Landlord excluded the Union’s agents and that Re-
spondent at no relevant time possessed sufficient property
rights in the sidewalk areas at issue herein to exclude union
handbillers irrespective of the nature and extent of the
handbiller’s rights under the Act. This argument is independ-
ent of the balancing tests struck down by Lechmere and re-
mains for consideration.
(1) The legal argument
The General Counsel argues that the instant case is con-
trolled by the Board’s recent decision in Johnson & Hardin
Co., 305 NLRB 690 (1991). In that case the Board found
that an employer had improperly excluded union handbillers
from the driveway leading to its plant. The Board found the
driveway was on land owned by the State of Ohio and that
the Respondent did not possess an interest in this
property sufficient to exclude from it trespassers, such
as the organizers here, who were not interfering with
the Respondent’s right to use the driveway for ingress
and egress. [Footnote omitted.] [305 NLRB 690, supra].
The Board in Johnson & Hardin specifically held that its
Jean Country balancing test does not come into play in such
a situation simply because there is an insufficient property
interest on the part of the employer to exclude individuals
from the property even if their presence is not protected by
Section 7 of the Act. Ibid.
In Giant Food Stores,, 295 NLRB 330 (1989), a case also
relied on by the General Counsel, the Board found the em-
ployer leasing land in a shopping center did not have ‘‘any
exclusory property interest in the sidewalk in front of the
[employer’s] store or in the shopping center parking areas’’
because the lease gave the employer ‘‘merely the ‘non-exclu-
sive’ right to ‘use’ such common areas’’ and the landlord
was obligated to maintain common areas and keep them free
of obstructions (295 NLRB, supra, at 332). See also Polly
Drummond Thriftway, 292 NLRB 331 (1989).
The General Counsel further argues that the State of Cali-
fornia recognizes a free speech right of access to common
areas of shopping centers citing Robins v. Pruneyard Shop-
ping Center, 23 Cal.3d 899, 910; 153 Cal.Rptr. 854, 869,
592 P.2d 341 (1979), affd. 447 U.S. 74 (1980). Counsel for
the General Counsel notes that in In re Lane, 71 Cal.2d 872,
79 Cal. Rptr. 729, 733, 457 P.2d 561 (Cal.1969), the Califor-
nia Supreme Court upheld the right of a labor union to hand-
bill on a privately owned sidewalk in front of a grocery
store. From these cases the Government argues on brief at
10:
While employers in other jurisdictions may be able
to claim a strong property interest in these areas, Re-
spondent cannot do so, inasmuch as, under the law of
this State, it has no property interest or right to [] ex-
clude free speech and petitioning activities in front of
its Manhattan Marketplace store.
443BRISTOL FARMS
3 The General Counsel did not attack the circumstances under
which the amended lease was negotiated and signed nor argue that
the rights created by the amendment were somehow lessened there-
by.
4 I do not find that the California property rights cases cited by
the General Counsel command a different result.
Respondent notes that it has regularly utilized its outside
areas for merchandise sales and display. Counsel on brief
notes that the lease defines ‘‘Common Areas’’ as areas not
devoted to the exclusive use of a particular tenant. He further
points out that well before Respondent acted to exclude the
handbillers, it had obtained under the Third Amended Lease
the exclusive use of this area.
The General Counsel answered Respondent’s arguments
respecting its sales of merchandise on brief at 10–11:
Respondent’s decision to display merchandise on the
sidewalk in front of its store should have little effect on
the free-speech guarantee recognized by California
courts. California courts have repeatedly recognized the
right to handbill in the common area of shopping cen-
ters. These shopping centers frequently have a mixed
use: they provide walkways for customers between
stores and on occasion they are used to display mer-
chandise. In these circumstances, Respondent cannot
immunize itself from handbilling and public criticism
by displaying merchandise on the sidewalk.
(2) Analysis and conclusion
The parties were aware of and briefed the proposition as-
serted in Jean Country, supra at 13 fn. 7, respecting em-
ployer expulsion cases:
Of course, there is an initial burden on the party
claiming the property right to show, through testimonial
or documentary evidence, that it has an interest in the
property and what its interest in the property is. A party
has no right to object on the basis of other persons’
property interests, and an employer’s mere objections to
having union pickets outside its establishment does not
in itself rise to the level of a property interest. See
Barkus Bakery, 282 NLRB 351 (1986), enfd. mem. sub
nom. NLRB v. Caress Bake Shop, 833 F.2d 306 (3d
Cir. 1987). There the Board found it unlawful for the
respondent employer to eject union organizers from pri-
vately owned property which abutted the employer’s
plant but which was under the control of another estab-
lishment that was not shown to object to the organizers’
presence. 282 NLRB 351, at fn. 2.
I find that this minimum property interest principle was not
diminished by the Supreme Court’s Lechmere decision. In-
deed it seems axiomatic that a property interest must be dem-
onstrated whenever the right to exclude or prohibit activity
in particular areas is asserted. Only those who have a suffi-
cient interest in property, an exclusory interest, may properly
remove or seek the removal of union handbillers.
The General Counsel correctly notes that, as in Barkus
Bakery, 282 NLRB 351 (1986), the fee holder herein, the
Landlord, has not been shown to have ‘‘joined Respondent’’
in excluding the Union’s agents from the property at issue.
Respondent’s conduct must therefore be justified by its own
independent property rights. It is therefore appropriate to im-
mediately turn to Respondent’s property interests herein.
The applicable lease provisions have been quoted supra.
Respondent under the terms of the Third Amended Lease has
the ‘‘exclusive right’’ to sell merchandise subject only to the
provision that such activities should not unreasonably inter-
fere with either vehicular or pedestrian traffic in the shopping
center. Respondent’s actual use of the area at relevant times
is consistent with the rights granted under the lease.
While the leasehold rights possessed by Respondent are
not exclusive without limit, they are significantly greater than
simple nonexclusive rights held in common with other ten-
ants and the Landlord. I find such property rights, on the
record presented here, rise to the level of exclusory rights as
contemplated in Jean Country, footnote 7 quoted in full
supra. The General Counsel’s cited cases: Johnson & Hardin
Co., supra; Giant Food Stores, supra; and Polly Drummond
Thriftway supra, are not to the contrary. In each of those
cases the property rights found wanting were less significant.
Thus in Johnson & Hardin the property right involved was
a simple easement of ingress and egress; in Polly Drummond
Thriftway and Giant Food Stores, only rights to common use
were held with maintenance and upkeep obligations held by
the landlord. In Barkus Bakery supra, the property interest
was essentially fictitious.
I find that Respondent’s property rights under the Third
Amended Lease3 are sufficient to meet the burden in foot-
note 7 in Jean Country quoted in full supra. I further find
therefore that the General Counsel has not prevailed under
this theory of a violation. Accordingly, I find that Respond-
ent did not violate the Act by excluding union handbillers.4
The General Counsel’s complaint is therefore without merit
and will be dismissed.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and on the en-
tire record herein, I make the following Conclusions of Law.
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. Respondent has not violated Section 8(a)(1) of the Act
as alleged in the complaint.
[Recommended Order omitted from publication.]