Farm Fresh Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1424 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1424
Farm Fresh, Inc., t/a Nicks’ and United Food and
Commercial Workers International Union, Lo-
cal 400, AFL–CIO

Farm Fresh, Inc. and United Food and Commercial
Workers International Union, Local 400, AFL–
CIO

Farm Fresh, Inc., t/a Food Carnival and United Food
and Commercial Workers International Union,
Local 400, AFL–CIO. Cases 5–CA–21155, 5–
CA–21311, 5–CA–21366, 5–CA–21368, 5–CA–
21369, 5–CA–21408, 5–CA–21410, 5–CA–21412,
5–CA–21461, 5–CA–21462, 5–CA–21463, 5–CA–
21511, 5–CA–21532, and 5–CA–21586
December 15, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, AND HURTGEN
On August 27, 1998, the National Labor Relations
Board issued its Decision and Order in this proceeding.1
The Board found that the Respondent committed several
unfair labor practices, but dismissed allegations that the
Respondent violated Section 8(a)(1) of the Act by eject-
ing two nonemployee union organizers from the snack
bar of one of its stores and by excluding nonemployee
union organizers from the sidewalks in front of four
other stores.
Subsequently, United Food and Commercial Workers
International Union Local 400, AFL–CIO (the Union)
filed a petition for review of the Board’s Decision dis-
missing the foregoing allegation with the United States
Court of Appeals for the District of Columbia Circuit. In
an opinion dated August 22, 2000, the court granted the
Union’s petition and reversed and remanded the case to
the Board for further proceedings consistent with its
opinion. Food & Commercial Workers Local 400 v.
NLRB, 222 F.3d 1030 (D.C. Cir. 2000).2
By letter dated November 1, 2000, the Board notified
the parties that it had decided to accept the court’s re-
mand and invited the parties to submit statements of po-
sition. The General Counsel, the Union, and the Re-
spondent filed statements of position.
We have considered the Board’s original decision in
light of the court’s opinion and the parties’ statements of
position. For the reasons that follow, we reaffirm on
modified grounds the Board’s prior dismissal of the alle-
gation that the Respondent violated 8(a)(1) by ejecting
the two organizers from the snack bar. However, we
reverse the Board’s prior decision and find that the Re-
spondent violated Section 8(a)(1) by excluding nonem-
ployee organizers from the sidewalks at four stores.

1 326 NLRB 997.
2 The court granted the Board’s unopposed cross-petition for enforcement
of Order provisions based on findings that the Respondent had violated Sec.
8(a)(1) in other respects.
1. The first issue on remand centers on the efforts by
union organizers, Dudley Saunders and James Green, to
organize employees who worked at the Respondent’s
grocery store on Princess Anne Road in Virginia Beach,
Virginia. Green and Saunders visited the store on May 1,
1990.3 While standing on the sidewalk approximately 30
feet from the store entrance, they solicited employee
support for the Union. Acting on a company rule prohib-
iting all solicitations within 50 feet of store entrances,
and after seeing the organizers solicit an employee who
was on duty, Store Manager Nat Harlow, ordered Green
and Saunders to move 50 feet away from the store en-
trance. When they refused, Harlow obtained trespass
warrants against Green and Saunders and the Union was
requested by letter to advise them that they would be
“considered trespassers and treated as such” if they re-
turned to the store.
Disregarding this directive, Green and Saunders re-
turned to the store on May 14 and ordered lunch from the
snack bar. Harlow ordered them out and told them not to
return until the pending trespass warrants were resolved.
In its original Decision, the Board Members unani-
mously agreed that the Respondent’s action was not
unlawful, but they differed as to the basis for that find-
ing. A three-member majority (Members Hurtgen and
Brame, with Chairman Gould concurring) found that the
Respondent had again relied on the 50-foot no-
solicitation rule when evicting the two organizers from
the snack bar. Nicks’, 326 NLRB at 999. The majority
acknowledged that Board precedent at the time of the
organizers’ removal from the public snack bar “held that
solicitation in restaurants cannot be prohibited when . . .
the conduct of the nonemployee organizer is consistent
with the conduct of other patrons of the restaurant,”
Montgomery Ward & Co., 288 NLRB 126 (1988). How-
ever, the majority overruled that precedent on grounds
that it had already “effectively been overruled” by Lech-
mere, Inc. v. NLRB, 502 U.S. 527 (1992). 326 NLRB at
999. The Supreme Court held in Lechmere that absent a
showing that the union has no other reasonable means of
communicating its organizational message to employees,
an employer generally has the right to exclude nonem-
ployee organizers from its property. 502 U.S. at 534.
Applying Lechmere, the Board majority found no evi-
dence either that the Union had no other reasonable
means of communicating its message or that the Respon-
3 All dates are in 1990.
332 NLRB No. 156
FARM FRESH, INC. 1425
dent had discriminatorily applied its no-solicitation rule
against the two organizers in its snack bar. The majority
therefore dismissed the 8(a)(1) snack bar complaint. 326
NLRB at 1000.
In a separate concurring opinion,4 Members Fox and
Liebman disagreed with the majority’s factual premise
that the Respondent had relied on its no-solicitation pol-
icy when it ejected the organizers from the cafeteria. In
their view, not only did the Respondent not rely on any
no-solicitation rule, it had in fact admitted that it gener-
ally permitted union organizers to solicit in the snack
bars of its stores. They therefore found Montgomery
Ward inapplicable to the actual issue presented, and they
dissented from the majority’s decision to “reach out to
reconsider and overrule” that precedent in circumstances
that did not require any such analysis. 326 at 1006.
Members Fox and Liebman agreed to dismiss the
complaint, however, on a different ground. They found
that the Respondent had relied solely on the outstanding
trespass warrants outstanding against the two particular
union organizers when it ejected them from the snack
bar. Applying Lechmere in this factual context, they
found no evidence that this action involved discrimina-
tion against union solicitation. As stated, the Respondent
had generally permitted union solicitation in the snack
bar and there was also “no evidence to suggest that had
the Respondent’s managers had a similar confrontation
with persons soliciting for another organization outside
one of its stores, the Respondent would not have banned
them from its property as well.” Id.
Upon review by the D.C. Circuit, the court reversed
the Board majority opinion. In express agreement with
concurring Members Fox and Liebman, the court found
“no evidence at all” that the organizers were ejected from
the snack bar pursuant to the Respondent’s no-
solicitation rule. “Rather, all of the evidence . . . indi-
cates that Green and Saunders were excluded simply
because of the outstanding trespass warrants.” Food &
Commercial Workers Local 400 v. NLRB, 222 F.3d at
1033. Accordingly, the court concluded that the Board’s
“ultimate disposition cannot stand” because its factual
underpinning was unsupported and, therefore, there was
“no occasion to consider whether the Board’s legal con-
clusion [that Lechmere effectively overruled Montgom-
ery Ward] . . . is correct.” Id. at 1034. In reversing and
remanding the case to the Board for further considera-
tion, the court also found no reason to consider whether
the “actual ground upon which Farm Fresh ejected the
organizers—the existence of the outstanding trespass

4 326 NLRB at 1004–1008.
warrants—would have sufficed to support dismissal of
the unfair labor practice charge.” Id.
Having accepted the court’s remand, we must observe
the court’s opinion as the law of the case. In light of the
court’s finding that the Respondent did not rely on its no-
solicitation policy when it expelled the union organizers
from the snack bar, we must conclude, in agreement with
the opinion previously stated by Members Fox and
Liebman, that the legal issue whether Lechmere effec-
tively overruled Montgomery Ward is not presented here.
We shall therefore vacate that part of the original Board
decision that addresses this issue.
As indicated above, the court left open to us on remand
to decide the real question in this case—whether the Re-
spondent was entitled to eject Green and Saunders from
its premises based solely on the trespass warrants pend-
ing against them. With respect to this question, we adopt
and rely on the analysis previously set forth in the con-
curring opinion of Members Fox and Liebman. In sum,
there is no evidence of discrimination against union so-
licitation in the Respondent’s ouster of two particular
union organizers because of their outstanding trespass
warrants. We therefore reaffirm on this basis the Board’s
conclusion that the Respondent did not violate 8(a)(1).
2. The second issue for Board consideration on re-
mand concerns various actions taken by the Respondent
to prevent nonemployee union organizers from soliciting
on sidewalks within 50 feet of the entrances to four of its
leased store properties.5 The General Counsel contends
that these exclusionary actions violated Section 8(a)(1)
of the Act.
In its original decision, the Board adhered to the prin-
ciple that “in cases in which the exercise of Section 7
rights by nonemployee union representatives is assert-
edly in conflict with a respondent’s private property
rights, there is a threshold burden on the respondent to
establish that it had, at the time it expelled the union rep-
resentatives, an interest which entitled it to exclude indi-
viduals from the property.” Indio Grocery Outlet, 323
NLRB 1138, 1141 (1997), and cases cited there. To de-
termine whether a respondent has a sufficient property
interest, the Board looks to the law of the state that cre-
ated and defined that interest. Id. Applying this analy-
sis, the Board found that language in the maintenance
provisions of the Respondent’s leases for each of the four
stores in dispute created a sufficient property interest
under Virginia law to permit exclusion of the nonem-
ployee organizers from sidewalk areas. The Board there-
5 These stores were located on Shore Drive (Virginia Beach), Victory
Boulevard (Portsmouth), Colonial Avenue (Norfolk), and Merrimack Trail
(Williamsburg).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1426
fore dismissed the 8(a)(1) allegations relating to the Re-
spondent’s exclusionary actions at these stores.
On review, the court applied the same Indio test but it
found that the Board had misinterpreted Virginia law in
finding that the maintenance provisions in the Respon-
dent’s four store leases gave it the right to exclude the
organizers. Once again, having accepted the court’s re-
mand, we must apply the court’s opinion as the law of
the case. With respect to three of the Respondent’s
stores (Shore Drive, Colonial Avenue, and Merrimack
Trail), the lease maintenance provisions were the only
possible basis for finding that the Respondent had proved
a sufficient exclusionary property right. The court, hav-
ing determined that these provisions did not create such a
right, we shall reverse our prior decision, find that the
Respondent’s exclusionary actions against nonemployee
organizers at these three stores violated 8(a)(1) as alleged
in the complaint, and order the Respondent to cease and
desist from such unlawful conduct.
With respect to the store at Victory Boulevard, the
court noted that, apart from the maintenance provision
found insufficient to prove an exclusionary property in-
terest, the lease at Victory Boulevard “appears to grant
Farm Fresh the lease to the sidewalk itself.” The court
stated that the Board “may, of course, consider this point
on remand.” 222 F.3d at 1038.
The Respondent’s statement of position on remand
concedes, as it must, that the court’s interpretation of
Virginia law is final and binding. It further states that
“there is no legal issue before the Board on remand deal-
ing with the exclusion of nonemployee organizers from
storefront areas.” The Respondent notes that it has
closed three of the four stores involved, including the
store at Victory Boulevard.
In light of the Respondent’s statement, it appears that
the Respondent does not seek to litigate the point left
open by the court’s remand with respect to its property
interest at the Victory Boulevard store. Moreover, the
underlying administrative law judge’s decision in this
case addressed this point and found that the Respondent
still did not meet its initial burden of proof because it
failed to resolve ambiguous language in lease provisions
indicating that the Respondent’s property interest in that
store’s sidewalk could be either exclusive or nonexclu-
sive.6 We affirm the judge’s finding in this regard.7 Ac-

6 326 NLRB at 1014, comparing par. 1 of the lease that arguably includes
the sidewalk as part of the demised premises, with par. 16 defining the side-
walk as “common area” in which the Respondent possesses merely a right of
nonexclusive use.
7 Member Hurtgen does not fully endorse the analysis on which his col-
leagues rely. As set forth in the underlying decision, he would require that an
employer need only meet an initial burden of going forward as to the property
right issue, i.e., to show prima facie that it possessed the property right to
cordingly, the Respondent having failed to prove that it
possessed a sufficient exclusionary interest in the side-
walk at the Victory Boulevard store, we conclude that it
also violated 8(a)(1) at this location by directing nonem-
ployee organizers to move off the sidewalk and by
threatening them with arrest.
ORDER
The National Labor Relations Board orders that the
Respondent, Farm Fresh, Inc.; Farm Fresh, Inc. t/a
Nicks’, and Farm Fresh Inc. t/a Food Carnival, Norfolk,
Virginia Beach, Hampton, Portsmouth, and Williams-
burg, Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Promulgating and threatening to enforce by arrest
or otherwise any ban upon organizational activity by
nonemployees in areas that it does not own or possess a
sufficient property interest to exclude.
(b) Interfering with peaceful organizational activity
waged by nonemployees within 50 feet of the entrances
to its leased property on Victory Boulevard (Ports-
mouth), Colonial Avenue (Norfolk), Shore Drive (Vir-
ginia Beach), and Merrimack Trail (Williamsburg).
(c) Threatening union representatives with arrest be-
cause they were engaged in organizational activity in
public areas in which the Respondent held no property
interest at its stores on Shore Drive (Virginia Beach),
Victory Boulevard (Portsmouth), Merrimack Trail (Wil-
liamsburg), and Colonial Avenue (Norfolk).
(d) Calling police to enforce removal of nonemployees
engaged in organizational activity in public areas in
which it held an insufficient property interest at its store
on Shore Drive (Virginia Beach).
(e) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facilities at Shore Drive (Virginia Beach), Victory
Boulevard (Portsmouth), Merrimack Trail (Williams-
burg), and Colonial Avenue (Norfolk), copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,

exclude. 326 NLRB at 1002 fn. 26. At that point, the burden would shift to
the General Counsel to show that the property right did not exist. However,
the Respondent appears to have abandoned its interest in litigating this issue
with respect to each of the stores, including the Victory Boulevard stores.
Accordingly, he finds it unnecessary to resolve this issue.
8 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.”
FARM FRESH, INC. 1427
on forms provided by the Regional Director for Region
5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at those loca-
tions at any time since May 3, 1990.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the Board’s original
decision is vacated to the extent that it discusses and
overrules Montgomery Ward, 288 NLRB 126 (1988).
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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT promulgate or threaten to enforce, by
arrest or otherwise, any ban upon organizational activity
by nonemployees in areas that we do not own or where
we do not possess a sufficient property interest to ex-
clude.
WE WILL NOT interfere with peaceful organizational
activity waged by nonemployees in areas that we do not
own or where we do not possess a sufficient property
interest to exclude.
WE WILL NOT threaten union representatives with
arrest because they were engaged in union organizational
activity in areas that we do not own or possess a suffi-
cient property interest to exclude.
WE WILL NOT call police to enforce removal of non-
employees engaged in union organizational activity in
areas that we do not own or possess a sufficient property
interest to exclude.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain our employees in the exercise of
the rights set forth at the top of this notice.
FARM FRESH, INC.; FARM FRESH, INC. T/A
NICKS’; FARM FRESH, INC. T/A FOOD CARNIVAL