Edward J. DeBartolo Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 382 (N.L.R.B. 1993)

382
313 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 112 S.Ct. 841 (1992).
2 The Employer also asserts that Rivers ordered Sala to leave the
premises and that Sala refused. This assertion, however, is unsub-
stantiated. Rivers’ memorandum describing the events of May 20,
which is appended to the Employer’s exceptions, states only that he
told Sala not to talk to the employees; it does not state that he told
Sala to leave the premises. The Employer thus has failed to proffer
evidence supporting its contention that Sala was requested to leave.
See Ormet Corp., 122 NLRB 159, 162 (1958).
3 Member Raudabaugh believes that Lechmere principles can be
relevant to the disposition of a representation case. If, under
Lechmere principles, a union representative has a right to be on the
employer’s property, the employer’s ouster of the union representa-
tive will be unlawful and, a fortiori, objectionable if it occurs within
the critical period. On the other hand, if, under Lechmere principles,
a union representative has no right to be on the employer’s property,
his/her defiance of an employer’s order to leave, occurring in the
presence of employees, may constitute objectionable conduct. See
Phillips Chrysler Plymouth, infra. In the instant case, Member
Raudabaugh assumes arguendo that the union representative had no
right to be on the Employer’s premises. However, the Employer
never ordered him to leave. Thus, the union conduct was not objec-
tive.
4 For the purposes of this case, therefore, we assume, without de-
ciding, that Rivers’ actions would withstand scrutiny under
Lechmere, as the Employer urges.
Edward J. DeBartolo Corporation and Service Em-
ployees International Union, Local 750, AFL–
CIO, CLC, Petitioner. Case 12–RC–7611
November 24, 1993
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
objections to an election held May 20, 1993, and the
Regional Director’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 7 for and 3 against the Petitioner, with 1 chal-
lenged ballot, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the Regional Direc-
tor’s findings and recommendations, and finds that a
certification of representative should be issued.
The Employer contends that, shortly before the bal-
loting commenced, agents and representatives of the
Union engaged in activities that interfered with the
employees’ free choice in the election. The Employer
argues, inter alia, that under the Supreme Court’s deci-
sion in Lechmere, Inc. v. NLRB,1 it lawfully ordered
a union representative to cease talking to employees on
its property, and that the representative’s defiance of
its instruction in the presence of employees was objec-
tionable. For the reasons discussed below, we find no
merit to the Employer’s contentions.
The facts that follow are as adduced by the Em-
ployer. Within the 2-hour period prior to the election,
Union Representative Stefano Sala walked into the
Employer’s food court, which is the unit employees’
work area but which is also open to the public. Sala
first spoke with an on-duty employee, Stubbs. The
conversation was observed by the food court manager,
Rivers. Stubbs later told Rivers that Sala had asked
where another employee was. A few minutes later,
Sala spoke with two other employees, Reddick and
Munoz. Reddick was on duty, but Munoz was not.
During the latter conversation, Rivers went to the floor
of the food court to find Reddick, who had received
a telephone call. Rivers approached the group and
asked Sala what company or business he was with, and
Sala replied that he was with the Union. Rivers there-
upon ordered Sala to cease conversing with the em-
ployees.2 Sala responded that he would talk to whom-
ever he pleased. At that point, Reddick left to take her
telephone call, but Munoz remained in the food court
in conversation with Sala for another 10 minutes. Ex-
cept as already recounted, there is no evidence of any-
thing that was said in any of Sala’s conversations with
the employees.
The Employer contends that Sala’s refusal to cease
talking with employees was objectionable and warrants
setting the election aside. The Regional Director rec-
ommended that the objection be overruled, noting that
the food court is open to the public, that there was no
evidence as to the substance of the conversation be-
tween Sala and the two employees, and that Reddick
promptly ceased to converse with Sala after Rivers’
admonition. The Employer now argues, however, that
Lechmere, supra, establishes an ‘‘absolute right of the
Employer to order the Union organizer to cease his
campaigning activities and to leave the area,’’ and that
Sala’s open defiance of the exercise of this right cre-
ated a coercive atmosphere of disproportionate union
power.
We agree with the Regional Director, and find no
merit in the contentions of the Employer. We note, to
begin with, that Lechmere does not govern the disposi-
tion of this case. Lechmere addresses the circumstances
in which an employer may exclude union organizers
from its premises without committing an unfair labor
practice. It is concerned, in other words, with whether
the employer’s conduct is lawful.3 There is no conten-
tion, however, that Sala had a legal right to talk to on-
duty employees on the Employer’s premises, or that
the Employer, through Rivers, did anything unlawful
by enjoining him not to do so.4 This is an election
case. The issue before us is whether Sala, by refusing
Rivers’ arguably lawful instruction not to talk to the
unit employees, destroyed the laboratory conditions
necessary for a valid election. The test to be applied
here is, thus, what it has long been in election cases—
383EDWARD J. DEBARTOLO CORP.
5 The Board observed in a footnote that the Union had not shown
that it was unable to contact the employees away from the employ-
er’s premises or at another time and place. See NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956). That observation, however,
merely indicates that the employer did not act unlawfully in insisting
that the union representatives leave the area. It does not mean that,
merely because the employer acted lawfully, the union representa-
tives’ defiance of the employer was necessarily objectionable.
6 Member Devaney dissented in Phillips and Chairman Stephens
did not participate in that decision. They both agree, however, that
it is distinguishable. Chairman Stephens expresses no view on
whether it was correctly decided.
whether the Union’s conduct ‘‘reasonably tend[ed] to
interfere with the employees’ free and uncoerced
choice in the election.’’ Baja’s Place, 268 NLRB 868
(1984).
In adopting the Regional Director’s finding that
Sala’s activities did not interfere with the employees’
free and uncoerced choice, we find this case distin-
guishable from Phillips Chrysler Plymouth, 304 NLRB
16 (1991). In Phillips, the Board set aside an election
because of the repeated and belligerent refusals of two
union representatives, approximately 75 minutes before
the election, to heed requests of the employer to cease
talking with unit employees in the shop area and to
leave the premises. The union representatives’ defiant
acts took place in front of a number of employees, and
word thereof was assumed to have quickly spread to
the rest. The two union representatives, moreover, re-
mained in the shop and continued refusing to leave
even after the police, summoned by the employer, ar-
rived at the scene. The Board found that the union
agents’ conduct conveyed to the employees the mes-
sage that the employer was powerless to protect its
own legal rights in a confrontation with the union.5
In contrast with Phillips, Sala was not in a shop area
but in the food court, an area open to the public.
Moreover, the Employer proffers no evidence that he
was ever asked to leave. Instead, according to the
memorandum of the Employer’s manager, he was told
to cease talking to employees, one of whom was off
duty, and he refused. Hence, there was no suggestion,
as there was in Phillips, that the Employer was power-
less to protect its property rights, because the Em-
ployer never asserted its property rights in the first
place. There was never any battle, on this particular
front, for the Employer to lose. Sala did refuse (once)
to obey Rivers’ order not to talk to the employees, but
when he did so, the employee who was on duty at the
time left the scene. The net result was that Sala contin-
ued to speak to only one employee, who was off duty,
about an undisclosed subject, in an area that was open
to the public. The police were not summoned; thus,
Sala’s actions could not be construed as in defiance of
their authority. Finally, there is no indication that any-
one other than the two employees present even knew
of the incident.6 Accordingly, we agree with the Re-
gional Director that the evidence proffered by the Em-
ployer is insufficient to support a finding that Sala’s
conduct reasonably tended to interfere with the em-
ployees’ free and uncoerced choice in the election.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Service Employees International
Union, Local 750, AFL–CIO, CLC, and that it is the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time food court
maintenance employees, including crew leaders,
employed by the Employer at Altamonte Mall, but
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.