Food for Less

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 646 (N.L.R.B. 1995)

646
318 NLRB No. 79
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Another company owns and operates other buildings and parking
lots in the River Roads Mall.
O’Neil’s Markets, Inc., d/b/a Food For Less and
United Food and Commercial Workers, Meat-
cutters Local 88. Case 14–CA–23246
August 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On a charge filed by the Union on September 20,
1994, the General Counsel of the National Labor Rela-
tions Board by the Regional Director for Region 14
issued a complaint and notice of hearing dated October
21, 1994. The complaint alleges that the Respondent
violated Section 8(a)(1) by ordering the Union to cease
engaging in handbilling protected by the Act on the
sidewalk and parking lot in front of its grocery store,
and by having the local police remove the Union’s
handbillers from the sidewalk and parking lot in front
of this facility.
On December 8, 1994, the General Counsel, the Re-
spondent, and the Union filed with the Board a stipula-
tion of facts. The parties agreed that the charge, com-
plaint, answer and the stipulation of facts constitute the
entire record in this case. The parties further stipulated
that they waived a hearing and the making of findings
of fact and conclusions of law, and the issuance of a
decision by an administrative law judge.
On January 24, 1995, the Board issued an order ap-
proving the stipulation of facts and transferring the
proceeding to the Board. The General Counsel, the
Union, and the Respondent subsequently filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Missouri corporation engaged
in the retail sale of groceries and related products at
its place of business located at 8985 Jennings Station
Road, Jennings, Missouri, in the Saint Louis metropoli-
tan area. During the 12-month period ending Septem-
ber 30, 1994, the Respondent derived gross revenues
in excess of $500,000, and it purchased and received
goods valued in excess of $50,000 directly from points
outside the State of Missouri. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
We further find that the Union, United Food and
Commercial Workers, Meatcutters Local 88, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent’s Food For Less grocery store in-
volved in this case is located in a shopping center
known as the River Roads Mall, at New Halls Ferry
Road and Jennings Station Road in Jennings, Missouri.
The building in which the store is situated is at the
east end of the mall; it is accessible to customers only
from a parking lot in front of the store, i.e., to the
south, from an adjacent parking lot to the east of the
store, and from a sidewalk which runs immediately in
front of the store and to the southwest. The sidewalk
in front of the store is about 9 to 12 feet wide. Cus-
tomers enter and exit the store through four doors lo-
cated in the center of the front of the building.
Between the sidewalk and the parking lot in front of
the store is a driveway used by cars and pedestrians
traveling to and from the stores in the mall, including
Food For Less. The first 2 feet of the driveway imme-
diately adjacent to the sidewalk in front of the store is
designated as a no-parking area. Both the driveway
and the no-parking area are part of the parking lot.
New Halls Ferry Road is about 250 feet to the east of
the store. A public sidewalk runs parallel to the road,
at the perimeter of the mall property.
Sam Wolff & Co. owns the building in which the
Respondent’s store is located, and also the parking lots
to the south and east of the store.1 A lease covering
the Respondent’s store premises was executed on July
23, 1984, between Sam Wolff & Co. and a predecessor
of the Respondent. The predecessor’s leasehold interest
was assigned to the Respondent on September 30,
1991. The lease was in effect at all relevant times in
this case. It provides in significant part, on page 1:
Lessee shall have in common with Lessor and
Lessor’s other Lessees in this Shopping Center, a
mutual non-exclusive easement of ingress, egress,
and parking for its customers, employees and
invitees over and upon the rights of way and
parking areas as shown on plot plan.
and at page 5, under the title ‘‘Parking’’ and the sub-
heading ‘‘Public Area Maintenance’’:
No. 4-C: The common areas shall be subject to
the exclusive control and management of Lessor,
and Lessor shall have the right to establish, mod-
ify, change and enforce uniform and non-discrimi-
natory rules and regulations with respect to the
common areas, and Lessee agrees to abide by and
conform with such rules and regulations. No. 4-D:
In addition to the rents hereinabove provided for,
Lessee agrees, during the terms hereof, to pay to
647FOOD FOR LESS
2 All dates hereafter are in 1994.
Lessor an accommodation charge of $.25 per sq.
ft. per year which shall be Lessee’s share of Les-
sor’s gross cost and expense of operating and
maintaining of the public area. . . . [T]here may
be included in such gross cost and expense, the
cost of public liability and property damage insur-
ance, operation, repairs, management, security,
maintenance, cleaning, lighting and other utilities,
line painting, and snow removal.
With the apparent exception of snow removal, Sam
Wolff & Co. has not billed the Respondent, and the
Respondent has not paid Sam Wolff & Co., for the
public area maintenance referred to in section 4-D
above. In addition, Sam Wolff & Co. maintains its
own liability and property insurance covering the Re-
spondent’s store and the parking lots. The Respondent
also maintains liability insurance in its own name cov-
ering the store and the parking lots.
The Respondent performs, not pursuant to its lease
agreement, the regular maintenance and repair of the
parking lots and sidewalk. This includes sweeping and
trash removal; retrieval of shopping carts; patrol by the
Respondent’s security guard; and instances of asphalt
patchwork repair, restriping and repainting of parking
areas, and repair of parking lot lights.
At all relevant times, the Respondent has had in ef-
fect a no-solicitation/no-distribution policy regarding
both employees and nonemployees. The Respondent
also has maintained a ‘‘No Soliciting or Trespassing’’
sign near the front doors of the store; however, this
sign was not posted on September 20, 1994, the date
of the Union’s handbilling in this case.2 It is apparent
that on various occasions both before and after Sep-
tember 20 the Respondent has requested nonemployee
individuals and organizations, representing a variety of
interests, to stop soliciting—or has denied requests to
permit such soliciting—in front of or in the immediate
vicinity of the store.
On September 20, from about 10 or 10:30 a.m. until
about 11:15 a.m., two members of the Union peace-
fully distributed handbills to customers while standing
both on the edge of the sidewalk and in the no-parking
area in front of the store. Neither handbiller was em-
ployed by the Respondent, and the Respondent’s store
employees were not represented by any labor organiza-
tion. The handbill stated:
FOR INFORMATION ONLY
PLEASE DO NOT BUY MERCHANDISE
FOOD FOR LESS
WHICH IS PAYING THEIR EMPLOYEES
WAGES
AND BENEFITS WHICH ARE LESS THAN
THE
STANDARDS ESTABLISHED BY
UNITED FOOD & COMMERCIAL WORKERS
IN THE AREA, AND THEREBY
UNDERMINING
THOSE STANDARDS.
UNITED FOOD AND COMMERCIAL
WORKERS,
MEAT CUTTERS LOCAL 88
(AFL–CIO)
REQUEST THAT CUSTOMERS
DO NOT PURCHASE ANY MERCHANDISE
FOOD FOR LESS
LOCAL 88 HAS NO DISPUTE WITH ANY
OTHER EMPLOYER
THIS IS AN INFORMATIONAL PICKET
ONLY
The Respondent advised the handbillers to leave the
area and to go to, inter alia, the public sidewalk next
to New Halls Ferry Road. After further discussion with
the handbillers, the Respondent called the local police.
When the police arrived, the Respondent told them that
no one was allowed to handbill on the sidewalk and
parking lot. At the Respondent’s request, the police
told the handbillers that they could not distribute hand-
bills in front of the store and that they had to move
to the public sidewalk at New Halls Ferry Road. At
that point the union representatives ceased handbilling.
After September 20, the Union maintained pickets on
an intermittent basis at the public sidewalk parallel to
New Halls Ferry Road.
Sam Wolff & Co., the owner of the private property
involved here, did not seek the removal of the Union’s
handbillers on September 20, and the Union did not
have the company’s permission to handbill on its prop-
erty. The Respondent acted solely on its own behalf on
September 20 when it removed the handbillers from
the property.
B. Issue
The issue is whether the Respondent violated Sec-
tion 8(a)(1) by ordering the Union’s handbillers to
leave the property in front of its store and by causing
the police to remove the handbillers from that prop-
erty.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As we interpret Lechmere, Inc. v. NLRB, the ‘‘heavy burden’’ of
a union in a trespassory access case refers to the requisite dem-
onstration of the unavailability of alternative means of communica-
tion, at the risk of forfeiture of the normally protected status of its
activity in the face of a predominant property right. See Leslie
Homes, supra at 126, 127. The ‘‘heavy burden’’ concept does not
refer to an enhanced obligation—distinct from the alternative means
inquiry—to prove that facially legitimate Sec. 7 activity, such as that
in support of area standards, is in fact protected.
C. Contentions of the Parties
The General Counsel contends that the accommoda-
tion doctrine of NLRB v. Babcock & Wilcox Co., 351
U.S. 105 (1956), and Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992), concerning the exercise of Section 7
rights on private property, is not applicable in this case
because the Respondent’s limited property interest in
the parking lot in front of its store did not provide it
with the authority to expel trespassers. More specifi-
cally, the General Counsel argues that under the terms
of its lease and Missouri case law, and even account-
ing for its maintenance and repair and insurance cov-
erage concerning the parking lot, the Respondent’s in-
terest in this area was at best a nonexclusive easement
in common with the owner and other tenants of the
mall. According to the General Counsel, this property
interest was not sufficient to permit expulsion of the
Union’s handbillers under any circumstances on Sep-
tember 20, and thus the Respondent’s conduct violated
Section 8(a)(1). Alternatively, the General Counsel
contends that, if the Respondent did possess a valid
right to exclude trespassers from the parking lot, it still
violated the Act pursuant to a Babcock/Lechmere anal-
ysis, because the Union did not have reasonable alter-
natives to handbilling in the parking lot. The Union’s
argument, similar to the General Counsel’s primary po-
sition, is that under the lease and Missouri case law,
the Respondent did not have a property interest in the
parking lot adequate to authorize the ejection of the
handbillers.
The Respondent contends that the General Counsel
and the Union have not met the ‘‘heavy burden’’ of
proving that the Union’s handbilling activity was pro-
tected by the Act because they did not show that the
Respondent’s wages and benefits in fact were below
the area standards, citing NLRB v. Great Scot, Inc., 39
F.3d 678 (6th Cir. 1994). The Respondent further ar-
gues that pursuant to its lease and state law, it had a
sufficient property interest in the parking lot to expel
the handbillers, and that its control is further estab-
lished by its insurance coverage and its maintenance
and repair regarding the parking lot. The Respondent
contends that, in view of its property right, the
Babcock/Lechmere doctrine and court cases interpret-
ing it establish that the Union had no statutory right
to access to the parking lot and the area in front of the
store to distribute its handbills. Accordingly, in the Re-
spondent’s view, its conduct on September 20 was jus-
tified and did not violate the Act.
D. Discussion
1. The area standards handbilling
A union’s peaceful area standards activity is pro-
tected by Section 7 of the Act. See, e.g., Sears, Roe-
buck & Co. v. San Diego County District Council Car-
penters, 436 U.S. 180, 206 fn. 42 (1978); Leslie
Homes, Inc., 316 NLRB 123, 125 (1995). In cases
such as the instant one, where the issue is whether as-
serted area standards activity is statutorily protected,
the Board normally does not look beyond the commu-
nication the union is conveying to consumers. Thus, if
the message on the union’s handbill or picket sign in-
dicates that an employer is undermining the collec-
tively bargained wage and benefit standards in the
area, and if the union’s conduct in conveying this mes-
sage is peaceful and consistent with the nature of the
message, i.e., if the union’s activity is ostensibly in
support of area wage and benefit standards, we will
consider, prima facie, the union’s activity protected by
Section 7. At that point, it is the respondent employ-
er’s burden to establish, if it can, that the union’s ac-
tivity is not what it appears to be and that it is outside
the sphere of Section 7 protection. See, e.g., Great
Scot, Inc., 309 NLRB 548, 553 (1992), enf. denied 39
F.3d 678 (6th Cir. 1994).
Cases in which ostensible area standards activity is
alleged to violate Section 8(b) of the Act present a dis-
tinctly different analytical context. Thus, for example,
where the General Counsel has established a prima
facie case that a respondent union’s picketing is in vio-
lation of one of the subsections of Section 8(b)(7), the
burden shifts to the respondent union to prove that its
picketing, assertedly in support of area standards, was
based on a bona fide investigation and evaluation of
comparative labor costs. In this way, the respondent
seeks to avoid an inference that the true objective of
its picketing was an organizational or recognitional one
proscribed by the Act. See, e.g., Teamsters Local 88
(West Coast Cycle), 208 NLRB 679, 680 fn. 10
(1974); Teamsters Local 296 (Alpha Beta Acme), 205
NLRB 462, 471, 473–474 (1973); see also NLRB v.
Operating Engineers Local 571, 624 F.2d 846, 849
(8th Cir. 1980). This analytical approach is not particu-
larly apposite or useful in the instant case, where no
violation of the Act has been alleged against the
Union, and the relevant question, as we indicated
above, is whether the Union’s activity merits the af-
firmative protection of Section 7.3
Accordingly, we respectfully disagree with the Sixth
Circuit’s view in NLRB v. Great Scot, Inc., supra, and
we reject the Respondent’s contention that the General
Counsel and the Union did not prove that the Union’s
activity in this case was protected by Section 7. The
649FOOD FOR LESS
4 We need not pass on the General Counsel’s theory that the Re-
spondent’s interest may amount to no more than a license.
5 The Respondent also cites Kansas City Power & Light Co. v.
Riss, 319 S.W.2d 262, 265 (Mo.App. 1958), to the extent it refers
to Winslow with approval, although it is not otherwise on point.
handbills the Union distributed on September 20 bore
a clear area standards message, and nothing in the
Union’s conduct of the handbilling suggested anything
other than peaceful area standards activity. The Re-
spondent submitted no evidence raising the possibility
that the ostensible area standards activity might be un-
protected, for example, a showing that its wage and
benefit policies actually were not substandard and that
the Union was or should have been aware of this. Fur-
ther, there is no claim or evidence that the Union had
any immediate objective to organize or represent Food
For Less employees which could have underlaid the
area standards handbilling. Therefore, we find that the
Union’s handbilling activity was protected by Section
7.
2. The Respondent’s property interest
In cases in which the exercise of Section 7 rights by
nonemployee union representatives is assertedly in
conflict with a respondent’s private property rights,
there is a threshold burden on the respondent to estab-
lish that it had, at the time it expelled the union rep-
resentatives, an interest which entitled it to exclude in-
dividuals from the property. See, e.g., Bristol Farms,
311 NLRB 437, 438 (1993); Johnson & Hardin Co.,
305 NLRB 690 (1991), enfd. in relevant part 49 F.3d
237 (6th Cir. 1995). In the absence of such a showing
there is in fact no conflict between competing rights
requiring an analysis and an accommodation under
Lechmere, supra. See Bristol Farms at 438. In deter-
mining whether an adequate property interest has been
shown, it is appropriate to look not only to relevant
documentary and other evidence on record but to the
relevant state law. Bristol at 438–439; Johnson & Har-
din at 690, 695.
The lease between the Respondent and Sam Wolff
& Co. explicitly grants to the Respondent ‘‘a mutual
non-exclusive easement,’’ held ‘‘in common with Les-
sor and Lessor’s other Lessees.’’ The uses of the Re-
spondent’s nonexclusive easement are specified: ‘‘in-
gress, egress, and parking for [the Respondent’s] cus-
tomers, employees and invitees over and upon the
rights of way and parking areas.’’ It is indisputable
that the ‘‘rights of way and parking areas’’ include the
parking lot in front of the Respondent’s store, and the
driveway and no-parking area immediately in front of
the store, since they are part of the parking lot. The
lease also explicitly states that the ‘‘common areas
shall be subject to the exclusive control and manage-
ment of Lessor.’’ The context of this passage in the
lease, and especially within a section entitled ‘‘PARK-
ING,’’ indicates with sufficient clarity that the ‘‘com-
mon areas’’ under the Lessor’s, and not the Lessee’s,
exclusive control include the parking lot in front of the
store. Thus, on the face of the lease, the Respondent’s
property interest in the parking lot constitutes, at best,4
a nonexclusive easement for specified business pur-
poses, with control and management of the parking lot
retained in Lessor Sam Wolff & Co.
Current Missouri case law defines an ‘‘easement’’ as
a nonpossessory interest; it is an interest in the
land in the possession of another which entitles
the owner of such interest to a limited use or en-
joyment of the land in which the interest exists
. . . . The easement owner who finds it necessary
to resort to the courts for protection of his ease-
ment is debarred from actions traditionally estab-
lished for the protection of a possession, such as
trespass, writ of entry and ejectment, because the
easement owner does not have the prerequisite
possession.
Gilbert v. K.T.I., Inc., 765 S.W.2d 289, 293 (Mo.App.
1988) (citations omitted); see also Nieberg Real Estate
v. Taylor-Morley-Simon, 867 S.W.2d 618, 627
(Mo.App. E.D. 1993). Gilbert also states that legal re-
course for one whose easement is interfered with or
obstructed is to be found in the law of nuisance. 765
S.W.2d at 294.
The Respondent cites Winslow v. Sauerwein, 285
S.W.2d 21 (Mo.App. 1955), for the proposition that
Missouri precedent permits the trespass of private
property to be enjoined by the holder of an easement
in the property.5 In Winslow, it is apparent that the
court in fact enjoined the trespass of a private street
by building-construction trucks based on the plaintiff’s
easement interest in the street. The plaintiff held this
interest in common with others who, like himself, were
owners of property abutting the street. In view of the
more current Missouri precedent above, which pre-
cludes a trespass action by an easement holder because
of lack of possession, it may well be that the Winslow
case, as precedent, is limited to its particular facts. In
any event, even viewing Winslow more broadly, it is
readily apparent that it is distinguishable from the in-
stant case, in light of the Respondent’s far more cir-
cumscribed easement interest, the far less intrusive
‘‘trespass’’ by the handbillers, and the failure of the
Respondent to satisfy Winslow’s standard for issuance
of an injunction: a showing of irreparable injury, per-
manent and continuous interference, or the inadequacy
of a damages remedy. Id. at 25.
In light of the above, we conclude that the Respond-
ent has not satisfied the burden of proving that on Sep-
tember 20 it had a property interest in the parking lot
in front of its store which entitled it to expel the
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We note that the union representatives were standing partially on
the sidewalk in front of the Respondent’s store when they distributed
their handbills. It is unclear on this record who, under the lease, con-
trols this sidewalk. However, even assuming the Respondent prop-
erly controlled the sidewalk, it caused the union representatives to
be ejected not only from the sidewalk but from the parking lot and
the entire mall property as well—clearly beyond any authority pursu-
ant to a property interest held by the Respondent.
7 We observe in passing that the Respondent did not demonstrate
that the peaceful handbilling by the two individuals in this case con-
stituted a nuisance, i.e., an interference with, or an obstruction of,
the business uses—ingress, egress, and parking—protected by the
Respondent’s easement.
8 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.’’
Union’s handbillers.6 Thus, the Respondent has shown
that at best it had a nonexclusive easement interest for
limited business purposes, and it has not established
that this interest carried the legal authority to exclude.7
Nor has the Respondent shown that under state law its
liability insurance coverage and its repair and mainte-
nance of the parking lot transformed the easement in-
terest set forth in the lease into a more substantial
property right providing the legitimate power to expel.
See Johnson & Hardin, supra, 305 NLRB at 695.
3. Conclusion
Because the Respondent has not proven the suffi-
ciency of its property interest, it is unnecessary for us
to consider any of the parties’ contentions dependent
on a Lechmere conflict between competing statutory
and property rights. On this record the Respondent has
not provided any acceptable justification for its inter-
ference with the Union’s protected distribution of area
standards handbills on September 20, and accordingly,
its conduct violated Section 8(a)(1). See, e.g., Bristol
Farms; Johnson & Hardin, supra.
CONCLUSION OF LAW
By ordering representatives of United Food and
Commercial Workers, Meatcutters Local 88, who were
engaged in peaceful handbilling protected by the Act,
to leave the property in front of its store in the River
Roads Mall, Jennings, Missouri, and by causing the
police to remove the handbillers from that property,
the Respondent has violated Section 8(a)(1) of the Act.
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, O’Neil’s Markets, Inc., d/b/a Food For
Less, Jennings, Missouri, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Ordering representatives of United Food and
Commercial Workers, Meatcutters Local 88 who are
engaged in peaceful handbilling protected by the Act
to leave the property in front of its store in the River
Roads Mall, Jennings, Missouri, and causing the police
to remove such handbillers from that property, as long
as such handbilling is conducted by a reasonable num-
ber 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 River Roads Mall copies
of the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director
for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 order representatives of United Food
and Commercial Workers, Meatcutters Local 88 who
are engaged in peaceful handbilling protected by the
Act to leave the property in front of our store in the
River Roads Mall, Jennings, Missouri, and WE WILL
NOT cause the police to remove such handbillers from
that property, as long as such handbilling is conducted
by a reasonable number of persons and does not un-
duly interfere with the normal use of facilities or oper-
ation of businesses not associated with our store.
651FOOD FOR LESS
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.
O’NEIL’S MARKETS, INC., D/B/A FOOD
FOR LESS