Food Lion, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 602 (N.L.R.B. 1991)

602
304 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Judge Norman B. Zankel, who conducted the hearing in this matter, died
on October 12, 1990. The case was transferred by agreement of the parties
to Judge Leiner on November 23, 1990, for purposes of issuing a decision on
the record as made.
2 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
The Respondent filed a partial motion to strike the General Counsel’s an-
swering brief and memorandum in support, and the General Counsel filed an
opposition. Specifically, the Respondent moved to strike those portions of the
General Counsel’s answering brief that addressed matters that were assertedly
neither decided by the judge nor raised in the Respondent’s exceptions. We
deny the Respondent’s motion. In doing so, we first note that the Respondent
excepted to the judge’s conclusion that it unlawfully denied the Union access
to the common areas adjacent to the Respondent’s stores in question, and that
the General Counsel’s disparate treatment argument in his answering brief is
responsive to that exception. In any event, in finding that the Respondent dis-
parately enforced its no-solicitation policy against the union organizers in vio-
lation of Sec. 8(a)(1) of the Act, we are relying on our own review and assess-
ment of the record evidence and controlling precedent, independent of (al-
though in agreement with) the views of the General Counsel.
As to the other two aspects of the General Counsel’s answering brief that
the Respondent has moved to strike, we note, in denying that motion, that (1)
the Respondent expressly excepted to the failure of Judge Leiner to rule on
its April 6, 1990 second amended settlement motion and that it is expressly
urging the Board now to rule on that settlement motion (which we do, infra);
and (2) that we are finding it unnecessary to pass on whether the Respondent
had an exclusory property interest in the premises in question, and that we
are also not applying the accommodation of competing interests analysis set
forth in Jean Country, 291 NLRB 11 (1988).
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
4 The Respondent has excepted to the asserted failure of Judge Leiner in fn.
2 of his decision to rule on the Respondent’s April 6, 1990 second amended
settlement motion. As the record does not establish that either Judge Zankel
or Judge Leiner actually ruled on the Respondent’s second amended settlement
motion, we shall do so.
The settlement proposal in question is not in evidence. The Respondent has
attached a copy of it to its brief in support of exceptions. It provides in perti-
nent part, inter alia, that upon 1 day’s advance written notice to the Respond-
ent, no more than two union representatives would be permitted access to the
sidewalks in front of the stores, but no more than 10 feet in from either end
of the buildings, for no more than 2 days per week, and for no more than
8 weeks per year. The proposal also provides that once the 16 days’ maximum
sidewalk access has been used in a given year, no more than two union rep-
resentatives would be permitted access to the two nonhandicap parking spaces
closest to the store entrances. The proposal contains a nonadmission clause and
provides for the posting of a notice to employees. The Charging Party rejected
this settlement proposal and the General Counsel opposes it.
The fact that both the General Counsel and the Charging Party oppose the
settlement proposal weighs heavily in our determination of whether to accept
the Respondent’s proposed settlement agreement. This fact is particularly rel-
evant in light of the various restrictions on union access contained in the pro-
posal. Given these restrictions and the parties’ rejection of the Respondent’s
proposal, we find that it would not effectuate the purposes and policies of the
Act to accept the settlement agreement. See generally Independent Stave Co.,
287 NLRB 740 (1987). Accordingly, the Respondent’s second amended settle-
ment motion is denied.
Food Lion, Inc. and United Food and Commercial
Workers Union, Local 400, AFL–CIO. Cases 5–
CA–20560 and 5–CA–20762
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On February 15, 1991, Administrative Law Judge
Robert W. Leiner issued the attached decision.1 The
Respondent filed exceptions and a supporting brief,2
and the General Counsel and Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judges’ rulings, findings,3 and con-
clusions only to the extent consistent with this Deci-
sion and Order.4
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by (1) denying access to union
representatives to the sidewalks, roadways, and parking
areas adjacent to two of the Respondent’s stores, thus
prohibiting the union representatives from commu-
nicating with the Respondent’s employees in these
areas for the purpose of discussing with the employees
their interest in being represented by the Union; and
(2) by threatening, or causing the police to threaten,
the union representatives with arrest if they remained
in the above-described areas outside of the Respond-
ent’s stores.
In concluding that the Respondent violated the Act
by denying access to the union representatives, the
judge found that the Respondent had failed to satisfy
its threshold burden under Jean Country, 291 NLRB
11, 13 fn. 7 (1988), of establishing that it had an ex-
clusory property interest in the sidewalks, roadways,
and parking areas adjacent to its stores to which it de-
nied access to the union representatives.
We affirm the judge’s conclusion that the Respond-
ent violated the Act as alleged. However, we reach that
conclusion not on the grounds relied on by the judge,
but instead on the grounds, discussed in full below,
that the Respondent disparately enforced its rules and
policies regarding solicitation against the Union. Thus,
we find it unnecessary to pass on the judge’s discus-
sion and analysis of whether the Respondent had an
exclusory property interest in the areas from which it
excluded the union representatives.
I. FACTS
The Respondent leases two stores near Fredericks-
burg, Virginia: store 419 is in the Breezewood Shop-
ping Center and store 450 is in the Chancellor Shop-
ping Center. The Respondent is the largest tenant in
each shopping center. The Respondent shares with the
other retail establishments in each shopping center a
right to use all common areas, including the public
roadways, sidewalks, and public parking areas in the
shopping centers.
603FOOD LION, INC.
A. Store 419, Breezewood Shopping Center
On June 23, 1989, several union representatives and
a representative of SETCA, the overseas union that
represents employees of the Respondent’s parent com-
pany in Belgium, visited the Respondent’s Breezewood
store to talk to the employees about forming a union.
Store Manager Rodney Sherman told them that they
could speak with employees who were not on the
clock, but denied the union representatives permission
to meet employees in the breakroom.
A few of the union representatives left the store to
meet with three off-duty employees who were sitting
on a public bench on the sidewalk in front of the store.
Union Representative Willard Snow remained in the
store. Sherman approached Snow and asked him to
leave the store premises. Snow asked why and Sher-
man said it was because Snow had bothered one of the
employees (who was a customer at the time). When
Snow said that he was merely asking if the customer
worked there, Sherman told him, ‘‘If you don’t leave,
I am going to call the police.’’ Snow refused to leave,
and Sherman called the Spotsylvania County Sheriff’s
office which dispatched a deputy to the scene. The
deputy conferred with both parties. Sherman told the
deputy that he wanted the union agents out of the store
and off the front of the walkway. The deputy in-
structed the union representatives to leave the store
and sidewalk. When the union representatives asked
where they could stand, the deputy told them that they
would ‘‘have to go out in the parking lot to the edge
of the road’’ and he pointed ‘‘out to the roadway,’’ to
the grassy area adjacent to the highway. Union Rep-
resentative Albert Faust asked what would happen if
they did not leave. The deputy replied, ‘‘Well, sir,
you’d probably go to jail.’’ The union representatives
agreed to leave the store and adjacent common areas.
B. Store 450, Chancellor Shopping Center
On October 7, 1989, Union Representatives Earman
and Joe went to the Respondent’s Chancellor store
along with four Belgian SETCA representatives. The
purpose of the visit was to allow the Belgians to ob-
serve working conditions in U.S. grocery stores as
compared to conditions in Belgium, as well as to talk
to the employees about organizing a union.
The union representatives spoke to a few employees
inside the store, but were soon met by Assistant Store
Manager Jeff Buchanan, who told them that they could
observe operations, but not talk to employees in the
breakroom. When Earman protested, Buchanan told
him that he could not solicit employees while they
were working, interfere with their work, or harass
them. Buchanan threatened to have Earman ‘‘escorted
out of the store if he didn’t quit.’’ Buchanan called the
sheriff’s department, returned to the union representa-
tives, and asked them to leave the store. He told them
that the police were on the way.
The union representatives were soon met by Bu-
chanan and a Spotsylvania County deputy sheriff. The
officer told Earman that Buchanan wanted him out of
the store, and asked Earman and the group to leave.
Earman told the deputy that the union representatives
planned to wait in front of the store until the employ-
ees went to lunch or got off work. The deputy said,
‘‘No, you have to leave the property, you have to
leave the premises.’’ As Buchanan stood by, the dep-
uty told the union representatives that they could not
remain in the parking lot, that Food Lion’s property
extended out some 200 yards, adjacent to the highway.
Earman asked if he could talk with the two employees
who were sitting on the bench in front of the store or
if he could use the public pay phone or soda machines
on the sidewalk. The deputy again told them no, that
they had to leave the property. The union representa-
tives agreed to leave to avoid arrest.
C. The Respondent’s Policies and Practices
Regarding Solicitation
The Respondent’s store policy manual and corporate
policy manual both state that ‘‘solicitation on store
premises at any time by nonemployees is strictly pro-
hibited.’’ ‘‘Company premises’’ are defined as includ-
ing (1) the inside of the store, (2) the entrance and exit
areas, and (3) the sidewalk area immediately in front
of the store. The policy manuals also instruct the store
manager to ‘‘politely request that the individuals who
are soliciting stop their activity when they are in the
areas defined above.’’ The Respondent also had a no-
solicitation sign posted in the front window of its two
stores in question.
The Respondent has an established procedure for
groups that request permission to solicit outside its
stores. Its ‘‘Procedures for Solicitation’’ state that per-
mission may be granted to groups that are nonprofit,
nonpartisan, or noncontroversial. Although the ‘‘Proce-
dures for Solicitation’’ place limits on the number of
days and frequency with which approved groups may
solicit, there are no restrictions as to the number of
persons engaged in solicitation nor the places they
must stand.
The record establishes that the Respondent regularly
permits charitable organizations to solicit, distribute,
and/or sell items in front of its Breezewood and Chan-
cellor stores. Between February and August 1989, a
material time period, the Respondent granted permis-
sion to the Salvation Army, the Knights of Columbus,
the Junior Chamber of Commerce, the Girl Scouts, the
Lions Club, the Pan African Church, and other organi-
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The judge found that the Respondent also permitted bake sales on the side-
walks in front of the Chancellor and Breezewood stores. There is no evidence
in the record to support this finding.
6 We therefore find it unnecessary to engage in an analysis accommodating
competing Sec. 7 and private property rights.
zations of similar nature to solicit in front of the
Breezewood and/or Chancellor stores.5
In sharp contrast, the Respondent expressly instructs
its store managers and supervisors that they
CAN (and SHOULD) . . . Keep non-employee
union organizers off company premises. (Rather
than using self-help if they resist, you should con-
tact the local law enforcement people) [emphasis
in original].
This rule has been in effect throughout the period at
issue in this case.
II. ANALYSIS AND CONCLUSIONS
In Sears, Roebuck & Co. v. San Diego County Dis-
trict Council of Carpenters, 436 U.S. 180, 205 (1978),
the Supreme Court reiterated the principle that while
an employer may not always bar nonemployee organiz-
ers from its property, its right to do so remains the
general rule. But the Court continued as follows:
To gain access, the union has the burden of show-
ing that no other reasonable means of commu-
nicating its organizational message to the employ-
ees exists or that the employer’s access rules dis-
criminate against union solicitation. [Emphasis
added; citing NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 112 (1956).]
In Jean Country, 291 NLRB 11, 12 fn. 3 (1988), the
Board reaffirmed its continued adherence to the ‘‘dis-
tinct analytical view that a denial of access for Sec. 7
activity may constitute unlawful disparate treatment
where, by rule or practice, a property owner permits
similar activity in similar, relevant circumstances.’’
The Board has applied a disparate treatment analysis
under similar circumstances in two recent access cases:
Ordman’s Park & Shop, 292 NLRB 953 (1989), and
D’Allessandro’s, Inc., 292 NLRB 81 (1988). In both
cases, the Board held that the employer had violated
Section 8(a)(1) by denying union representatives ac-
cess to the areas adjacent to the stores while granting
access to other groups, individuals, and activities. Al-
though in both cases the judges did not reach the issue
of disparate treatment, the Board applied the disparate
treatment analysis as an alternative to the Jean Country
balancing of interests. We do likewise in the instant
case, noting that the disparate treatment issue was fully
litigated at the hearing.6
There is substantial evidence that both before and
during the time that the Union sought to solicit em-
ployees on the sidewalks outside of the Respondent’s
stores, the adjacent common areas were regularly used
by a wide range of groups for activities unrelated to
the operation of the store. And yet, on two occasions,
the Union was peremptorily and singularly denied such
access to engage in its organizational activity. Further,
there is evidence that this disparate treatment is re-
flected in the Respondent’s own policies. Thus, the
record shows that the Respondent has an established
procedure for certain groups seeking to solicit outside
its store. Union activities, however, are treated dif-
ferently. In light of the Respondent’s express instruc-
tions to its supervisors and store managers, it is clear
that the Respondent has a blanket discriminatory pol-
icy of specifically denying union organizers–-but not
others—access to its ‘‘premises’’ and of calling the po-
lice if the union representatives resist eviction.
Under these circumstances, we find that the Re-
spondent’s denial of access to the union organizers to
solicit off duty employees in the common areas adja-
cent to the Respondent’s leased premises on June 23
and October 7, 1989, constituted unlawful disparate
treatment of union activities in violation of Section
8(a)(1). Accordingly, we shall modify the judge’s rec-
ommended Order to reflect the discriminatory nature
of these violations.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Food
Lion, Inc., Fredericksburg, Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discriminatorily prohibiting representatives of
United Food and Commercial Workers Union, Local
400, AFL–CIO, from communicating with the Re-
spondent’s employees on the sidewalks and roadways
and in the parking areas adjacent to the Respondent’s
premises in the Breezewood and Chancellor Shopping
Centers, Fredericksburg, Virginia, and threatening rep-
resentatives because of their presence on the sidewalks,
roadways, and parking areas for the purpose of com-
municating with the Respondent’s employees.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
605FOOD LION, INC.
1 Judge Zankel died on October 12, 1990. Upon the consent of all parties,
and pursuant to 5 U.S.C. § 554(d) and Sec. 102.36 of the Board’s Rules and
Regulations, the associate chief administrative law judge, on November 23,
1990, transferred the matter to me for purposes of issuing a decision on the
record as made.
2 From time-to-time, Respondent submitted to Judge Zankel various plans
and amended plans to settle these cases. The history and disposition of Re-
spondent’s various settlement plans are contained in ALJ Exhs. 1 and 2 which
are part of the official record in this proceeding. On April 13, 1990, Judge
Zankel issued an Order, inter alia, resuming the hearing in this consolidated
matter (ALJ Exh. 2(a)). Noting therein that the Charging Party (the Union)
rejected Respondent’s amended settlement terms, and the General Counsel
having taken no position in the matter, Judge Zankel decided to resume the
hearing, complete the litigation, and to issue a decision in the consolidated
matter. Respondent’s offer would permit union solicitation in limited areas of
the adjoining parking lot during limited hours of the day. Employees approach-
ing the solicitors would necessarily be identified. Nevertheless, Respondent, in
its brief, continues to urge the adoption of its proposed amended terms of set-
tlement. General Counsel, in its brief, opposes the settlement and, on this
record, the Union continues to oppose the settlement. There is no question that
Respondent’s proposed terms of settlement are not consistent with the statutory
rights that would be accorded to the Union if it prevailed. Under these cir-
cumstances, particularly the possibility of repetition of similar conduct, I reject
the proposed offer of settlement and continue in Judge Zankel’s decision to
issue a decision on the merits of this consolidated matter. See Copper State
Rubber, 301 NLRB 138 (1991).
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminatorily prohibit representa-
tives of United Food and Commercial Workers Union,
Local 400, AFL–CIO from communicating with our
employees on the sidewalks, roadways, and parking
lots in front of and surrounding our stores in the
Breezewood and Chancellor Shopping Centers, located
in Fredericksburg, Virginia, or threaten union rep-
resentatives because of their presence on the sidewalks,
roadways, or adjacent parking areas for the purpose of
communicating with our employees.
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.
FOOD LION, INC.
Eileen Conway, Esq., for the General Counsel.
David H. Grigereit, Esq. (Arnold & Anderson), of Atlanta,
Georgia, for the Respondent.
Carey R. Butsavage, Esq. (Baptiste & Wilder, P.C.), of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was tried on five occasions, on and between March 26
and May 29, 1990, in Fredericksburg and Stafford, Virginia,
before Administrative Law Judge Norman B. Zankel1 upon
General Counsel’s complaints, separately issued, in the cases
cited in the caption. The charge in Case 5–CA–120560 was
filed July 7, 1989, and served on the parties on July 10,
1989. The complaint and notice of hearing was issued on
October 26, 1989. The charge in Case 5–CA–20762 was
filed on October 19, 1989, and served on the parties on Oc-
tober 26, 1989. A first amended charge was filed and served
on February 27, 1990, with a complaint and notice of hearing
therein filed and served on February 28, 1990. On March 5,
1990, the Regional Director for Region 5, National Labor
Relations Board, issued and served an order consolidating
cases in the above matters. Respondent filed timely answers
to the complaints, admitting certain allegations, denying oth-
ers and denying the commission of any unfair labor prac-
tices.
The complaints allege, in substance, that Respondent vio-
lated Section 8(a)(1) of the Act at two of its shopping center
facilities near Fredericksburg, Virginia, by refusing access to
union representatives engaged in protected, concerted activi-
ties, and, in both cases, threatening union representatives
with arrest for engaging in such activities.
On January 3, Respondent filed a motion, inter alia, to dis-
miss the complaints for failure to state a cause of action and
on March 21, 1990, Judge Zankel issued an Order denying
Respondent’s motion.2
At the hearing, the parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to file posthearing briefs which
have been carefully considered.
On the entire record, including the briefs, I make the fol-
lowing
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
Respondent, a North Carolina corporation with an office
and place of business in Fredericksburg, Virginia, admits that
in the 12-month period ending October 1989, a representative
period, in the course and conduct of its business operations,
it derived gross revenues in excess of $500,000. In the same
period, Respondent admits having purchased and received at
its Fredericksburg, Virginia locations and its various stores
located throughout the State of Virginia, products, goods, and
materials valued in excess of $50,000 shipped directly from
points located outside the State of Virginia. Respondent con-
cedes that at all material times it has been and is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaints allege, Respondent admits, and I find, that
at all material times, United Food and Commercial Workers
Union, Local 400, AFL–CIO, the Charging Party (the
Union), has been and is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The unfair labor practices alleged in this consolidated mat-
ter relate to activities at two of Respondent’s retail stores,
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
both situated in shopping centers near Fredericksburg in
Spotsylvania County, Virginia.
The store located along Route 208 (store 419) is in the
Breezewood Shopping Center; the other store (store 450) is
in the Chancellor Shopping Center, located at the intersection
of Virginia Routes 639 and 3. These stores, in terms of
square footage, are the largest tenants in the respective shop-
ping centers. In each shopping center, there were at least sev-
eral other retail establishments, including restaurants. The
landlord in each of the shopping centers maintains both side-
walks and roadways in front of and around Respondent’s
stores together with adjacent adjoining parking lots for cus-
tomers, vendors, suppliers, invitees, and pedestrians visiting
Respondent’s stores and other stores in the shopping centers.
The sidewalks in front of each store are approximately 152
feet long and 12 feet in width. The main entrances of the
stores abut the central area of the sidewalk. At that juncture,
the Breezewood store has a vestibule enclosing about 25 feet
of the sidewalk at the center thereof and the main entrances.
The Chancellor store has a windscreen of about the same
length enclosing the sidewalk at the center. A canopy or roof
covers the entire storefront sidewalk at both stores. Similarly,
parcel pickup lane roadways, abutting on adjacent two-way
traffic lanes, are immediately next to the sidewalks, directly
in front of the store.
From the perspective of facing the store entrances or vesti-
bules on the sidewalk immediately in front of the stores,
there are two soda machines located at the left end of the
sidewalk in front of each store, located approximately 8 to
10 feet from the end of the store building and co-terminus
sidewalk. At both stores, there is a public coin telephone lo-
cated on the sidewalk between the coke machines and the
store entrances. In addition, there is a bench on the sidewalk
between the telephone and the store entrance at each build-
ing. Grocery carts are stored on the right side of the sidewalk
in front of both stores beginning approximately 10 to 12 feet
from the respective vestibule or windscreen entrances run-
ning the length of the right storefront sidewalk.
The Union’s July 7, 1989 unfair labor practice charge with
respect to the Breezewood Shopping Center, alleges that
‘‘On or about June 23, 1989, and continuing thereafter,’’ Re-
spondent violated Section 8(a)(1) of the Act by denying
union representatives reasonable access to communicate with
employees and by threatening the arrest of union representa-
tives. However, General Counsel’s ensuing October 26, 1989
complaint with respect to the Breezewood Shopping Center
(Case 5–CA–20560) fails to allege that any unfair labor prac-
tice occurred other than on June 23, 1989, and conspicuously
omits the language, found in the charge, that the alleged un-
fair labor practices were ‘‘continuing thereafter.’’ Similarly,
the Union’s October 1989 charge with respect to the Chan-
cellor Shopping Center (Case 5–CA–20762) and the first
amended charge (G.C. Exh. 1-H) both allege that the unfair
labor practices occurred on or about October 7, 1989, ‘‘and
continuing thereafter.’’ General Counsel’s February 28, 1990
complaint with respect to the Chancellor Shopping Center
(Case 5–CA–0762) declares only that the alleged unfair labor
practices occurred on or about October 7, 1989, and omits
all reference to unfair labor practices as ‘‘continuing there-
after.’’ On the basis of a comparison of the Union’s charges
with the General Counsel’s complaints, I find that the unfair
labor practices, if, indeed, they occurred at the two stores,
occurred only on the dates alleged in the complaints. There-
fore, I need not and do not make findings with regard to the
continuation of unfair labor practices; rather, the scope of
this decision relates solely to the question of whether unfair
labor practices occurred on the dates and at the places al-
leged in the complaints: with respect to the Breezewood
store, on or about June 23, 1989; with respect to the Chan-
cellor store on or about October 7, 1989.
The Leases at Breezewood and Chancellor
Shopping Centers
Portions of the leases relating to both shopping centers are
in evidence (G.C. Exhs. 3 & 4).
The respective leases, executed respectively in 1985 and
1986, both grant to the tenant (Respondent) for a period of
20 years the respective store buildings and the land on which
the buildings stand, designated the ‘‘demised premises.’’
With regard to the respective shopping centers’ interior
streets, alleys, sidewalks, and parking lots, each lease con-
tains the same language (G.C. Exh. 3; G.C. Exh. 4) (empha-
sis added):
Landlord hereby dedicates and grants to Tenant, its
employees, agents, suppliers, customers and invitees, a
non-exclusive right at all times to use, free of charge,
during the term of this lease, or any extensions thereof,
all the Common Areas, including parking areas, as
shown on Exhibit ‘‘A’’, which areas are acknowledged
to be for use by such persons, along with others simi-
larly entitled, for parking and for ingress and egress be-
tween the demised premises and all other portions of
the shopping center and the adjoining streets, alleys and
sidewalks.
Landlord covenants and agrees . . . to provide and
maintain a surfaced parking area substantially as shown
on Exhibit ‘‘A’’ . . . all of the common areas shall be
adequately lighted by Landlord at its expense. Landlord
covenants and agrees to operate and maintain all the
Common Areas . . . and provide therefore all such
services as are reasonably required [sweeping, snow re-
moval, lighting, policing, general repair, striping].
Tenant shall have a right to install . . . two (2) soft
drink dispensing machines on the sidewalk in front of
Tenant’s demised premises. Said soft drink dispensing
machines shall be located in a place so as not to disrupt
the normal flow of pedestrian traffic.
It is further understood that Tenant shall have the
right to merchandise spring and summer bedding plants
and vegetables on the sidewalk in front of Tenant’s
store during the months of March through July of each
year. Tenant shall also be permitted to erect such dis-
play racks as to adequately display and hang potted
plants during the aforementioned period. Said display
shall be located in such a place so as not to disrupt the
normal flow of pedestrian traffic along and across the
sidewalk immediately in front of Tenant’s store and
shall not hinder pedestrian access between Tenant’s
store and any other co-tenants within the shopping cen-
ter.
Landlord further . . . agrees to provide tractor trailer
parking space for the exclusive use of Tenant at its . . .
service entrances . . . [and] that Tenant shall have 24-
607FOOD LION, INC.
3 Both leases refer to attached Exhibits ‘‘A.’’ Neither lease in evidence
(G.C. Exh. 3 & 4), contains such attachment. G. C. Exh. 6, a plat of the
Breezewood facility and surrounding shopping center area, admitted without
objection or other explanation (Tr. 30–31), was not represented as either Ex-
hibit ‘‘A’’ or as representing the condition of the area at the time of the al-
leged unfair labor practices at Breezewood. Indeed, it appears to carry as the
latest date thereon ‘‘4/11/86.’’ Similarly, G. C. Exh. 7, an undated plat of the
Chancellor store and some surrounding areas, admitted without objection, is
not identified as Exhibit ‘‘A’’ or as representing the area on the date of the
alleged unfair labor practices. In view of the findings and conclusions reached,
I regard these omissions as not dispositive. I must assume, arguendo, that all
the sidewalks and parking areas in each shopping center (except those tractor-
trailer parking spaces at the rear-store service entrance specified as ‘‘exclu-
sive’’ under the terms of the lease, above) are ‘‘common areas’’ subject to
Respondent’s leased ‘‘non-exclusive’’ rights. I shall treat separately, below,
Respondent’s argument of the existence of an ‘‘exclusive’’ right to certain
parts of the sidewalks and parking lots (‘‘working and selling areas’’) flowing
from its doing business thereon.
hour a day access for ingress and egress to the rear of
the demised premises and the exclusive right to such
spaces as may be needed by Tenant . . . as such serv-
ice entrances are shown on Exhibit ‘‘A.’’3
The leases also contain covenants of quiet enjoyment and
tenant obligations to pay to the landlord, as additional rent,
a prorata share of the costs of ‘‘Common Area Mainte-
nance.’’ The additional payments in the Chancellor lease (ad-
dendum to art. 8) are based on tenant’s ‘‘Gross leasable
area.’’ That area is defined as ‘‘any floor space within the
shopping center, leased or owned by the Tenant.’’ The leased
area (art. 1) appears to be the 25,000 square feet in the store
interior. The sidewalks and other common areas are not men-
tioned in this computation.
The Display of Respondent’s Merchandise on the
Storefront Sidewalks
Aside from operation of the soda machines and telephones
on the sidewalks of both stores, the Respondent, pursuant to
the leases, regularly displays merchandise on the sidewalks
for sale. Notwithstanding that the leases proscribe the nature
of the merchandise to be displayed (spring and summer bed-
ding plants and vegetables, and hung potted plants) and fur-
ther proscribe the period of the year in which such displays
may occupy the sidewalks (March through July), Respond-
ent’s actual practice is to display such merchandise on the
sidewalks throughout the year without objection, on this
record, from the landlord, other tenants or anyone else.
For instance, in the winter months, Respondent displays
firewood on the sidewalk principally on the left side of the
sidewalk against the building. This leaves only a 3- to 4-foot
walkway on the 12-foot sidewalk for customer traffic (R. Br.
at 11; Tr. 105). In addition to firewood, Respondent displays
bulk bags of mulch, pine bark nuggets, assorted trees, shrubs,
and bushes. The firewood is displayed through March and
the latter goods through April of each year. The displays of
these materials nevertheless leave an aisle on the sidewalk
for pedestrian traffic (R. Br. at 13).
General Counsel and the Union, however, observe that
there are no cashiers, cash registers, or sales, or bagging of
this merchandise on the sidewalks. Rather, the customers
themselves load items into their cars or carts, taking the price
tags to the cashier within the store. General Counsel con-
cedes that the sidewalks are storage spaces for Respondent’s
displayed items notwithstanding that the storage and display
of these items constitute a ‘‘blatant breach of the terms of
the lease’’ (G.C. Br. at 22).
Each store employs 100 employees (Tr. 340–341) and only
one employee spends a brief period each day attending to
these sidewalk displays and, at most, two employees are
scheduled to work in the parcel pickup areas on the sidewalk
and parking areas (Tr. 141–143; 159; 161; 368; 385; 412).
There is no dispute, however, that these two employees regu-
larly help customers unloading carts on the sidewalk and the
pickup areas and load food parcels into automobiles.
The Testimony of Respondent’s Witnesses Regarding
its Property Rights
Rodney L. Sherman, store manager of the Breezewood
store in June 1989 (Tr. 316), testified that he had conversa-
tions with Michael T. Hall, the principal of the landlord and
owner of the Breezewood property, Michael T. Hall and As-
sociates. These alleged conversations related to solicitation in
the front of the store and the parking lot and related to Hall’s
feelings and his viewpoint (Tr. 317). Michael T. Hall did not
testify in the proceeding and therefore there was no corrobo-
ration of any conversation between Sherman and Michael T.
Hall.
At the beginning of his testimony, when Sherman was
asked what authorization he had for excluding trespassers
from the common areas, he testified that he had a letter from
Michael T. Hall. The only letter in evidence from Michael
T. Hall is Respondent’s Exhibit 13, dated August 4, 1989,
a date well after the commission of the alleged unfair labor
practices (June 23, 1989) at Breezewood. When pressed by
counsel for any authorization from the landlord to exclude
trespassers prior to the receipt of this August 1989 letter, he
testified that he had a conversation with Michael T. Hall in
February 1989, shortly after he took over management of the
store (Tr. 319). Although Sherman’s testimony in direct ex-
amination specified that the conversation was in February
(Tr. 319), on cross-examination he could not recall the spe-
cific date and would not even volunteer a month (Tr. 355).
Since Respondent maintained a no-solicitation sign in the
front window of the store and although Sherman had no clear
recollection of the conversation (Tr. 356), Sherman testified
that he asked Hall for his viewpoint on solicitation. Sherman
testified that Michael T. Hall said that he did not allow it
(Tr. 356–357). Nothing in this alleged conversation purported
to grant landlord authorization to Respondent for the exclu-
sion of trespassers.
Thereafter, Sherman was asked whether he had any further
conversations with Michael T. Hall concerning the banning
of solicitation and distribution after the alleged June 23,
1989 unfair labor practice incident. He testified that there
was a ‘‘brief meeting prior to that date.’’ When pressed as
to any meeting with Hall before June 23, 1989 (Tr. 357), he
testified that the meeting took place in Hall’s office after the
Union had appeared ‘‘again’’ and Hall merely said that he
was against solicitation (Tr. 358). When it was brought to
Sherman’s attention that the Union had not appeared
‘‘again’’ before June 23, and indeed had not been at the
Breezewood premises between February 1989 (Sherman’s ar-
rival at the store) and June 23, 1989 (the date of the alleged
unfair labor practice), Sherman admitted that there had been
no union appearance up to that time and that his conversa-
tion with Michael T. Hall was after June 23, 1989, when he
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 H. D. Hall also did not appear at the hearing to testify. Counsel for Re-
spondent said that he was under the care of a physician, suffered various ail-
ments and was being medicated for Parkinson’s disease (Tr. 668). There was
no suggestion in the record that H. D. Hall was sufficiently incapacitated by
Parkinson’s disease, by medication, or otherwise, as to not appear at the hear-
ing.
5 In subsequent testimony, Store Manager Sherman testified that he was mis-
taken with regard to his testimony identifying Michael T. Hall as the person
with whom he had conversations concerning the landlord’s and the tenant’s
right to exclude solicitors as trespassers (Tr. 785–786). Thus he testified, 2
months after his original testimony, that it was actually ‘‘Dan Hall’’ rather
than Michael T. Hall with whom he had the conversations (Tr. 786). He also
testified that he did not know who H. D. Hall was and did not know whether
H. D. Hall was Dan Hall (Tr. 798).
had another meeting with him (Tr. 358–359). In his meeting,
after the June 23 appearance of the Union, Hall again was
reported to have stated that he did not permit solicitation on
the property. Sherman said he agreed and requested ‘‘some-
thing in writing’’ relating to the matter.
As a result of this post-June 23 conversation with Michael
T. Hall, the landlord sent Respondent a letter (R. Exh. 13)
dated August 4, 1989, signed by Jack G. Ward, an officer
of Michael T. Hall and Associates, Ltd. Jack G. Ward did
not testify in the proceeding. Nevertheless, the letter stated:
Dear Mr. Sherman:
In this, and all of my centers, I prohibit solicitation
and distribution in the common areas to the full extent
permitted by law because it interferes with my tenants
businesses. I have required people soliciting and distrib-
uting on behalf of Local 400 to leave the common areas
of this center in the past just as I have required people
soliciting and distributing for other purposes to leave
the common areas. Under the lease, Food Lion may
also exclude people who are soliciting and distributing
in the common areas or you may require that I do so.
Sherman testified that in the period that he was the store
manager, there were bake sales held on the sidewalk in front
of the store; the Salvation Army, the Knights of Columbus
and the Jay Cees, with Respondent’s permission, also ap-
peared on the sidewalk in front of the stores soliciting dona-
tions (Tr. 361–362; 379).
Respondent has an established procedure for groups seek-
ing to solicit outside its stores (G.C. Exh. 30) and records
the names of solicitors (G.C. Exh. 29). Such procedure exists
alongside no-solicitation rules forbidding solicitation, inter
alia, on the sidewalk in front of the store (G.C. Exh. 20).
The only group specifically forbidden on Respondent’s
‘‘premises’’ (defined in its no-solicitation rule to include the
sidewalk ‘‘area immediately in front of the store,’’ (G.C.
Exhs. 20 and 21) are ‘‘non-employee union organizers’’
(G.C. Exh. 22).
Sherman admitted that the outside of the store is a public
thoroughfare that pedestrians can walk on without restriction
(Tr. 384) and that he never had discussions with Hall regard-
ing any authorization to exclude trespassers from areas other
than the sidewalk in front of Respondent and the parking lot
in front of Respondent (Tr. 324). Respondent’s witness Jerry
C. Hall, an employee of Michael T. Hall and Associates,
Ltd., testified that Michael T. Hall (his uncle, Tr. 672) is the
sole owner of the Virginia corporation bearing his name (Tr.
656); that he is the owner of the Breezewood Shopping Cen-
ter, having purchased it from the original owner—lessor, ap-
pearing on the Breezewood lease (G.C. Exh. 3; Tr. 657); that
H. D. Hall (his grandfather, Tr. 672) is also associated with
Respondent (Tr. 659–660); that (over a hearsay objection) H.
D. Hall not only had the authority himself to exclude tres-
passers but had authority to permit Respondent to exclude
them; and that he was aware that H. D. Hall had given such
authority to Respondent because H. D. Hall had told him so
(Tr. 663–664). The witness did not mention Store Manager
Sherman or any other Respondent representative as the recip-
ient of such authority.
With regard to Respondent’s right to exclude trespassers
from the common areas, Jerry C. Hall testified that it was
lodged in the lease provision granting to Respondent a ‘‘non-
exclusive right to use’’ the common areas (Tr. 666). Any
verbal agreement with a tenant, according to Jerry C. Hall,
is not enforceable under the lease agreement (Tr. 674).
Aside from the lease itself, in answer to a leading question
(Tr. 666), Jerry C. Hall testified concerning an ‘‘understand-
ing’ relating to Respondent’s right to exclude trespassers
from the common areas. He testified that the landlord was
there to help the tenants in the Breezewood Shopping Center
operate their business; and ‘‘if something beyond their con-
trol and within our control is done to interfere with their
business, certainly we are going to help our tenant’’ (Tr.
666–667). No evidence was adduced concerning the Re-
spondent agent with whom such ‘‘understanding’’ existed.4
Finally, Jerry C. Hall testified that H. D. Hall told him that
it was he (H. D. Hall) who had called the police in June
1989, when a Food Lion representative told him that the
Union was interfering with Food Lion’s customers.5
Sherman testified that after the June 23 incident, he spoke
to ‘‘Dan Hall,’’ told him of the Union’s disruption of his
customers and that he (Sherman) had called the Sheriff’s de-
partment (Tr. 787) because the Union refused to leave Re-
spondent’s ‘‘premises’’ (Tr. 780). After calling the police, he
went to the vestibule entrance area waiting for the sheriff to
arrive (Tr. 780). Deputy Sheriff Whitney testified (Tr. 542–
543) that the police dispatcher had told him only that the
management needed assistance with a disturbance and that he
proceeded to the store.
On the basis of (1) Store Manager Sherman’s clear lack
of recollection of the events relating to any pre-June author-
ization from Michael T. Hall and Associates concerning Re-
spondent’s right to exclude trespassers from the common
areas including sidewalk and parking lots; (2) the failure to
produce Executive Vice President Jack G. Ward (of Michael
T. Hall and Associates, Ltd.) or Michael T. Hall or H. D.
Hall as witnesses with regard to any pre-June 1989 author-
ization to Respondent; and (3) the contradictory and hearsay
nature of the testimony on this point adduced from Jerry C.
Hall, I conclude, contrary to Respondent’s suggestions, that
there were no pre-June 1989 conversations relating to solici-
tation between Sherman and the landlord (or its agents); and
that Sherman’s and Jerry C. Hall’s testimony, to the extent
that such testimony suggests the existence of any pre-June
1989 authorization to Respondent to exclude trespassers—or
any one else—from the sidewalks, parking lots, or other
‘‘common areas’’ of the Breezewood Shopping Center, is not
credible. I conclude that, prior to June 23, 1989, contrary to
Respondent’s assertions, Respondent did not receive from
Michael T. Hall and Associates, Ltd., the landlord, any au-
609FOOD LION, INC.
6 Since I conclude that Respondent’s interest in the common areas (side-
walks and parking areas) does not rise to the level of an ‘‘exclusory’’ property
interest, and thus Respondent failed of proving the ‘‘threshold’’ issue in Jean
Country, infra, it is unnecessary to determine whether Respondent’s conduct
toward union solicitation manifests ‘‘disparate treatment.’’ Compare Thriftway
Supermarket (nonbusiness invitees allowed), 294 NLRB 173 (1989), with Te-
cumseh Foodland, 294 NLRB 486 (1989) (as sole occupant, allowed no one
on property except customers). In addition, since General Counsel has not al-
leged that Respondent has unlawfully discriminated against the Union, I refrain
from determining whether Respondent’s no-solicitation rules (on their face or
applied) violate the Act. In so ruling, I am nevertheless aware of Respondent’s
direction to its store managers concerning nonemployee union organizers on
its ‘‘premises’’ (G.C. Exh. 22). See Lechmere, Inc. v. NLRB, 914 F.2d 213
fn. 9 (1st Cir. 1990), enfg. 295 NLRB 92 (1989). 7 For ‘‘bake sales,’’ see Thriftway Supermarket, 294 NLRB 173 (1989).
thorization to exclude anyone from the Breezewood Shop-
ping Center.
Furthermore, I conclude, that on the basis of
uncontradicted evidence, Respondent regularly permits, under
its own rules (G.C. Exhs. 30 & 30A), charitable organiza-
tions to solicit in front of its various stores (G.C. Exh. 29);
and, in particular, during the period February through August
1989, permitted, among others, the Salvation Army, Knights
of Columbus, the Jay Cees, and other organizations of a
similar nature to solicit in front of Respondent’s Breezewood
store. The evidence is relevant only to the extent that it bears
on the issue of how ‘‘private’’ Respondent regarded the side-
walk in front of its store and the adjoining parking areas.6
Since Respondent does not, itself, enjoy an exclusory prop-
erty interest in these ‘‘common areas,’’ see infra, it is of only
marginal interest to inquire into its no-solicitation rules and
policies. Such rules and policies are relevant only in areas
in which Respondent has an exclusory right, i.e., within its
store and in its rear loading area.
Respondent’s Solicitation Rules and Policies
The uncontradicted evidence demonstrates that Respondent
permits various charitable and similar organizations to solicit
in front of its stores, generally, including in front of its stores
at the Chancellor and Breezewood Shopping Centers.
Respondent’s employee manual (G.C. Exh. 2) (1) forbids
any solicitation or distribution of literature by any persons
who are not employed by Respondent in its stores, offices
and distribution centers; (2) forbids solicitation by Food Lion
Employees during working time or in any selling area. Dis-
tribution of literature by Food Lion employees is prohibited
during working time or in any working or selling area.
‘‘Working time’’ does not include break periods, meal time
and other specified periods during the workday when the em-
ployees are properly not engaged in performing their job du-
ties.
Respondent’s Corporate Policy Manual (G.C. Exhs. 20 &
21.) forbids solicitation ‘‘on store premises at any time’’ by
nonemployees. Store ‘‘premises’’ is defined as any property
that is owned or leased by Respondent and will always in-
clude the following areas: (1) the inside of the store, (2) the
entrance and exit areas of the store, (3) the sidewalk area im-
mediately in front of the store (usually under the canopy). In
cases of solicitation in the parking lot, the store manager is
directed to ask the solicitor to ‘‘. . . contact the landlord to
secure written permission before they resume their solicita-
tion.’’
In addition, Respondent has directed its supervisors and
store managers that, in any event, they should ‘‘[Keep] non-
employee union organizers off company premises. (Rather
than using self-help if they resist, you should contact the
local law enforcement people.)’’ (Tr. 452; G.C. Exh. 22).
Lastly, the evidence shows that Respondent maintains for-
mal ‘‘procedures for solicitations’’ (G.C. Exhs. 30 & 30A).
Respondent’s formal procedure for scheduling solicitation
outside its stores is maintained by and through an employee
responsible for that scheduling (Tr. 554). The organizations
permitted to solicit, according to one undated version of the
procedure (G.C. Exh. 30), are limited to ‘‘non-profit’’ groups
who are to stand outside the store. In another version, again
undated (G.C. Exh. 30A), the authorization is limited to
groups which are ‘‘non-profit, non-partisan, or non-con-
troversial.’’ In the first version, there is appended a typed-
in paragraph (not appearing in the other version) which
states: ‘‘The above policy applies only to those organizations
that we choose. We reserve the right to disallow any organi-
zation the right to solicit in front of our stores.’’ (G.C. Exh.
30.)
In any event, the employee in charge of receiving and au-
thorizing solicitations is directed to send a memo to the par-
ticular store authorizing the solicitation. A copy of the same
memo is sent to the person requesting authorization. There
are various general limitations to the right to solicit including
a frequency no more than once in 6 months, and a limitation
of 2 days (except for the Salvation Army at Christmas).
Although the evidence shows that solicitation in front of
the Breezewood and Chancellor Shopping stores included
only the Knights of Columbus, the Salvation Army, Girl
Scout Cookies, the Lion Club, and the Pan African Church,
Respondent’s records for other of its stores, under this policy
(G.C. Exh. 29) shows that other charitable organizations
which have been authorized to solicit include the Shriners,
No To Drugs, the American Cancer Society, blood pressure
screenings, and bake sales.7
The Incidents at the Breezewood Shopping Center and
the Chancellor Shopping Center
A. The June 23, 1989 Incident at the Breezewood
Shopping Center Store (Store 419)
On June 23, 1989, six union agents visited the
Breezewood store. Michael Earman (assistant to the presi-
dent; director of membership services), Belgian national, Al-
bert Faust (general secretary of SETCA, the Union which
represents employees of Respondent’s parent company in
Belgium), an interpreter for Faust, Willard Snow (Local 400
business representative), Burke a union photographer, and
Prosten, a publication’s consultant. Burke and Prosten did
not at this time enter the store; Earman, Faust, Snow and the
interpreter walked into the store and asked to see the man-
ager.
Store Manager Rodney Sherman came to the front of the
store. Earman handed Sherman a business card, introduced
himself and the other union agents. Earman told Sherman
that the union agents wanted to speak to the employees about
the Union. The purpose of the Union’s visit, in fact, was to
identify Respondent’s employees and speak to them about
organization, i.e. about joining the Union (Tr. 40).
Earman told Sherman that he had a letter from Food Lion
President Tom Smith giving the Union permission to enter
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 There is considerable testimony in the record relating to Sherman observ-
ing Snow speaking to an employee, Myrtle Minor. Sherman testified that
Snow, attempting to approach Minor, ‘‘came barging through’’ and bumped
into a customer (Tr. 779). The marginal significance of the alleged incident
is that Respondent appears to argue that it might expect similar union conduct
if the Union were permitted to solicit on the sidewalks outside the store. If
the matter was significant, I would discredit Sherman’s testimony. Sherman
not only admitted that no customer filed any complaint about being bumped,
but when employee Minor herself testified, Respondent failed to ask her about
the bumping incident (Tr. 724–725). Sherman, in addition, did not accuse
Snow at the time of the event of bumping into anyone. Rather, as Snow him-
self testified, denying any bumping, Sherman asked him to leave because
Snow had allegedly bothered one of his employees [Myrtle Minor] who was
a customer in the store. It was because of such ‘‘bothering’’ of Minor that
Sherman said he was going to call the police (Tr. 973). Of greater importance,
Deputy Sheriff Whitney testified, under examination by Respondent, that Sher-
man told him that the union agents were in the store, disturbing the employees,
but not the customers (Tr. 549). Under these circumstances, I conclude that
there was no bumping incident. Furthermore, I conclude that even if there
were such a bumping incident, Sherman considered it so trivial as not to have
reported it to Deputy Whitney when he arrived.
the store to talk to employees, but Sherman refused to read
the letter and asserted that he, rather than Tom Smith, ran
the store. There is a dispute in the testimony as to whether
Sherman then told the union representatives that it was all
right to speak with the employees who were not on the clock
rather than, as Respondent asserts, that Sherman said that in
view of the no-solicitation rule, solicitation of employees
could occur only on the employees’ own time outside the
store. As Respondent notes (Br. at 35; Tr. 773), Sherman did
not define what he meant by ‘‘outside the store.’’ There is
no dispute, however, that Sherman refused to permit the
union representatives to meet employees in the store
‘‘break’’ room. Sherman then left the union representatives
who began to walk through the store.
Union representatives then approached employees and
spoke with them concerning their wages, hours, and other
terms and conditions of employment. There is a dispute
whether some or all of these employees were on their work
time and whether they stopped working during the conversa-
tions. In any event, Union Agent Earman asked for the
schedule of employee lunchbreaks and Sherman refused to
give it to him. When Earman then asked how he was sup-
posed to find out when the employees were going to be on
work breaks, Sherman told him that that was his problem.
After Sherman followed Earman and Faust through the
store for a period, the union agents left the store and spoke
to employees who were outside the store. Union Agent Snow
remained in the store for a period of time and Sherman heard
him speak to an employee regarding another person in the
store: whether that other person was a Food Lion employee.
At this point Sherman approached Snow and told him to
leave the store. Snow asked why and Sherman said it was
because Snow had bothered one of his employees (who was
a customer). When Snow said that he was merely asking if
the customer worked there, Sherman told him that: ‘‘If you
don’t leave, I am going to call the police.’’8
When Deputy Sheriff Whitney arrived, Sherman told him
that he was having trouble with the union representatives.
Whitney then asked to hear both sides of the story and got
the Union’s side first (Tr. 543). When Whitney asked the
Union to produce the letter allegedly permitting the Union to
enter the store, the Union did not have it. After the Union
requested the officer to declare what the Union’s rights were
and asked what would happen if they did not leave (would
they go to jail?), officer Whitney told them that they prob-
ably would (Tr. 544). Sherman told the sheriff that he want-
ed the union agents out of the store and off the front of the
walkway (Tr. 544). When the union agents then asked Whit-
ney where they could remain under the Virginia State Code
(sec. 40.1-53) (Tr. 543), Whitney told the union agents that
they would ‘‘have to go out to the edge of the road’’ by
which Whitney says he meant in the parking lot (Tr. 544).
When the union agents asked specifically where they were
supposed to lawfully station themselves, Whitney told them
that they could not be in the store, on the sidewalk, in the
driveway, but some place further out. Whitney states that he
could have said that they would have to be ‘‘on the edge of
the highway, meaning that there is like a grass section, that
they could be anywhere out in there’’ (Tr. 545). He further
testified that he had been told by the commonwealth attorney
that under Virginia law, they could go to the parking lot or
to the edge of the parking lot (Tr. 54).
On cross-examination, Officer Whitney was asked whether
he told the union agents whether they could go anywhere on
the parking lot when they asked where they could stand (Tr.
550). He answered that he told them that they could ‘‘go out
in the parking lot to the edge of the road.’’ Officer Whitney
then added that what the union agents interpreted ‘‘the edge’’
and what he himself interpreted could be two different inter-
pretations. Finally, officer Whitney testified that he pointed
‘‘out to the roadway’’ (Tr. 550) and stated that the Union
could not be in the store, on the sidewalk, in the driveway
or in the handicapped parking areas. In particular, however,
Officer Whitney denied that he told the union agents that
they could go ‘‘anywhere else’’ (other than the above sites,
(Tr. 550–551). He testified he did not actually say that but
pointed out to the parking lot (Tr. 551).
Store Manager Sherman, however, testified that Deputy
Sheriff Whitney pointed towards Route 208 in terms of
where the union agents could station themselves (Tr. 788).
Union Agent Earman credibly testified that Officer Whit-
ney suggested that the ‘‘higher ups’’ in both the Union and
Respondent work out the problem of where the union agents
could station themselves; but for purposes of Sherman’s
complaint that day, Earman recalls that Officer Whitney said
that Respondent wanted the Union off the company’s prem-
ises and they would have to leave or he would arrest them
(Tr. 473). At this point, the union agents asked Whitney
what he considered to be the company’s ‘‘premises’’ and
asked where the Union should go (Tr. 473). Whitney said
that these ‘‘premises run all the way out to the highway’’
and Whitney pointed to the highway that was in front of the
shopping center (Tr. 474). The union agents then agreed to
leave and left. There is thus a discrepancy between the testi-
mony of the sheriff on one hand, and Sherman’s and
Earman’s on the other.
Notwithstanding my inclination to fully credit the testi-
mony of the disinterested deputy sheriff, Whitney, I conclude
that, since Sherman’s and Earman’s testimony is mutually
corroborative, what Officer Whitney actually said (as Sher-
man and Earman testified) was to tell the union agents that
they had to go out toward the highway on the grassy knoll,
pointing to Route 208 which is the main highway abutting
the shopping center. This effectively excluded the union
agents from the sidewalk in front of the store (152 feet) and
all of the parking areas and roads in front of the store. As-
611FOOD LION, INC.
9 The architectural ‘‘plat’’ of a section of the Chancellor Shopping Center
(Tr. 686; R. Exh. 16(A).) shows that the 152 foot sidewalk in front of Re-
spondent’s store is contiguous with sidewalks in front of two other stores
which flank Respondent’s store. The contiguous sidewalk in front of one of
the flanking stores (building E) appears to be 250 feet long; that of the other
flanking store, 77 feet long (building C). Building ‘‘B’s’’ sidewalk, 109 feet
long, contiguously joins Building ‘‘C’s’’ sidewalk. Thus, flanking the 152-foot
sidewalk in front of Respondent’s store are contiguous sidewalks of other ten-
ants on one side of 250 feet; on the other, a total of 186 feet.
suming, arguendo, that ambiguity lurked in Deputy Whit-
ney’s area proscription, it was backed by a threat of arrest.
Hence, the union agents might well be apprehensive of infer-
ring a broad interpretation of where they could solicit based
on Whitney’s hand gestures or verbal admonitions.
B. The October 7, 1989 Incident at the Chancellor
Shopping Center Store
In the late morning of October 7, 1989, Union Representa-
tives Earman, Joe, Burke, and Belgian SETCA Representa-
tives Frissen, DeVos, Gillardin, and Vandevelde entered Re-
spondent’s store (#450) in the Chancellor Shopping Center
near Fredericksburg, Virginia, to inspect working conditions
and to organize the employees. Like the Breezewood Shop-
ping Center Store, Respondent’s Chancellor Center Store,
one of the largest tenants in the Chancellor Shopping Center,
is located in a ‘‘strip shopping center’’ where there are var-
ious other food stores, sandwich shops, and restaurants. Like
the Breezewood Store, the sidewalk in front of the Chan-
cellor Store is about 152 feet long with a 12-foot sidewalk
and a canopy or roof covering the sidewalk.9 Adjacent to the
sidewalk at the Chancellor store is a similar two-way street
and parcel pickup lane running the length of the sidewalk di-
rectly in front of the store. Like the Breezewood store, there
are two soda machines toward the left end of the sidewalk
in front of the store and a telephone located on the sidewalk
between the soda machines and the store entrance. There is
also a bench on the sidewalk between the telephone and the
store entrance.
As above noted, the leases at both stores are essentially
the same with the demised premises being the building and
land on which the building stands, together with a ‘‘non-
exclusive right’’ at all times to use ‘‘all the Common Areas,
including parking areas.’’ The common areas, again, are for
the use of the tenants (including their employees, suppliers,
customers, invitees, and other persons ‘‘similarly entitled’’)
for parking and for egress and ingress. The streets, alleys,
and sidewalks of the shopping center are defined as part of
the common areas (G.C. Exh. 4, par. 8). Both leases provide
that it is the landlord’s obligation not only to keep and main-
tain the common areas in good condition but to police the
common areas (G.C. Exh. 3 at 9; G.C. Exh. 4, par. 14 at 9).
When, in the morning of Saturday, October 7, 1989, Local
400 representatives entered Respondent’s store 450, Assistant
Store Manager Jeff Buchannan learned of their presence from
an employee and introduced himself to one of the Belgians.
One of them asked for permission to look around the store
and talk to the employees in the breakroom. Buchannan said
that he was free to look around the store but that the
breakroom was available only to Respondent’s employees
(Tr. 945–946). Customers overheard conversations by the
union organizers (Tr. 948).
Union organizers spoke to a clerk in the produce depart-
ment (Knuttson), asking him what he thought about the
Union (Tr. 949). Buchannan told Earman that he could not
solicit employees while they were working, interfere with
their work, or harass them. One of the union representatives
said he would wait to speak to employees when they went
to lunch.
The union organizers remained in the store, made some
purchases, continued to speak to employees at work, Earman
insisting that the Union had a right to be in the store.
Buchannan left the group, telephoned the Sheriff’s Depart-
ment, returned to the group and asked them to leave the
store. He told them that the police were on their way (Tr.
951–952).
When the sheriff’s deputy arrived, he and Buchannan ap-
proached the group in the store. The officer told Earman that
Buchannan wanted him out of the store and asked Earman
and the group to leave (Tr. 953). When Earman insisted that
he had the right to remain (stating that Respondent had been
unsuccessful in another store in evicting the Union), the dep-
uty sheriff told him that he was now in a different county
and asked him to leave before he had to arrest him (Tr. 953).
The group of organizers then followed the deputy out to his
car. They asked if they could stand on the sidewalk and talk
to employees or customers on the sidewalk (Tr. 954) and
said that they would wait in front of the store until employ-
ees went to lunch, or were through with work, so that they
could talk to them about the Union. The deputy said: ‘‘No,
you have to leave the property, you have to leave the prem-
ises’’ (Tr. 485).
At this point, Assistant Manager Buchannan came out of
the store and stood with the group while they spoke to the
deputy sheriff through his car window. The sheriff told the
union organizers that they could not stand on the parking lot
to talk to people and that Food Lion’s parking lot property
was [described by a rectangle running] from the corners of
the building to the road ‘‘all the way to the Roy Rogers’ res-
taurant down at the highway perhaps 200 yards away’’ (Tr.
485). The deputy, in the presence of Assistant Store Manager
Buchannan, told them that if they stood in that forbidden
area he would place them under arrest (Tr. 954). When the
union organizers asked the deputy sheriff if they could talk
to employees who would be sitting on the sidewalk bench
out in front of the store, the deputy told them that they could
not do so but would have to leave the property (Tr. 486).
The union organizers then asked him if they could use the
public pay phone or the public soda machines in front of the
store. He answered that they would still be in the forbidden
area and that they could not do so (Tr. 486; 954). The union
agents then talked among themselves, agreed to leave, but
told the police officer that they thought that he was violating
the National Labor Relations Act in directing them to leave.
They said that they did not want to be arrested (Tr. 486).
Buchannan then spoke with two employees, apparently
eating lunch while sitting on the bench outside the store (Tr.
486), who asked him what was going on. He told them that
it was ‘‘all over’’; and that the police asked union agents to
leave or they would be arrested (Tr. 955). Buchannan testi-
fied that it was he who asked the sheriff to remove the union
representatives from the sidewalk because he considered the
sidewalk to be a working area and a sales area (Tr. 965–
966). He further testified that he was not aware that the
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union agents were engaged in any activity on the sidewalk
that day (Tr. 966–967). Respondent argues that since the
union agent tried to solicit employees who were working in
the store and had allegedly blocked customers from buying
merchandise in the store by their physical presence and by
their speaking to customers, Buchannan reasonably assumed
that the union agents were likely to do the same thing on the
sidewalk (R. Br. at 48) and observes that there was no evi-
dence that the union representatives provided any assurances
to the contrary. Buchannan testified, however, that he was
not aware of any union interference with customers until
after the deputy sheriff had ‘‘dispersed the union people’’
(Tr. 966–967).
Salem Properties is the lessor of the Chancellor Shopping
Center store. Its marketing director, Jim Ostrander, testified
that he sees to it that there is a good relationship with the
tenants. In answer to Respondent’s question as to whether he
was familiar with the ‘‘leasing arrangement’’ between the
lessor and Respondent, he testified that the ‘‘leasing arrange-
ment’’ is the ‘‘lease agreement,’’ which is the ‘‘lease docu-
ment’’ (Tr. 679–680). In answer to Respondent’s further
question of whether ‘‘the leasing arrangement . . . consists
of anything more than the lease document itself,’’ Ostrander
did not understand the question (Tr. 680). Insofar as any
practice or understanding goes under the lease, he testified
that the common practice was for the lessor and the individ-
ual tenants to recognize a responsibility and authority to
make sure that the area is a ‘‘good place to shop.’’ In par-
ticular, his job was to ‘‘watch over and to enforce the lease
document’’ (Tr. 680).
It may be recalled that Jerry C. Hall, an official of Mi-
chael T. Hall & Associates, the lessor of Respondent’s
Breezewood Center store, testified that the ‘‘leasing arrange-
ment’’ between the lessor and Respondent went beyond the
written lease: it included not only the legally binding docu-
ment of the lease but also included what he described as a
‘‘standard property management procedures for our centers
that are normally worked on a case-by-case basis’’ (Tr. 665).
When pressed for anything in the ‘‘lease arrangement’’
which would permit Respondent to exclude trespassers from
the common areas, Hall identified only the lease provision
relating to Respondent’s ‘‘nonexclusive’’ rights (Tr. 665–
666). When further pressed for any ‘‘understanding,’’ aside
from the lease itself, relating to any Respondent right to ex-
clude trespassers from the common areas, Hall stated that the
landlord was present to help all the tenants operate their
businesses and if something beyond their control and within
the landlord’s control is done to interfere with their business,
then the landlord is going to help the tenant to conduct its
business in a normal manner (Tr. 666–667).
Finally, Jerry C. Hall had testified that under the
Breezewood lease agreement between Michael T. Hall & As-
sociates and Respondent, which permitted Respondent to dis-
play and sell merchandise on the sidewalks, the landlord
would have no objection if Respondent blocked the sidewalk
off completely with its items displayed for sale on the side-
walk (Tr. 675–676). Indeed, he testified that the landlord
would enforce this lease clause (G.C. Exh. 3 at 6) forbidding
Respondent from obstructing the sidewalk in front of its
premises only if there was a complaint from another tenant
(Tr. 676). There was no evidence that this interpretation of
the lease was ever otherwise communicated to Respondent,
whether before or after the June 23 incident.
On the other hand, Jim Ostrander, representing lessor at
the Chancellor Shopping Center, testified that while Re-
spondent displayed its merchandise on the sidewalk in front
of the store all of the time (Tr. 684), on a couple of occa-
sions, he asked Respondent to make sure that there was al-
ways a passageway on the sidewalks from store-to-store (Tr.
684–685).
Lastly, it might be noted that Jerry C. Hall testified that
Michael T. Hall & Associates did not give permission (con-
trary to the lease) for Respondent to display its merchandise
on the sidewalk throughout the year (Tr. 675). On the other
hand, Ostrander testified that at the Chancellor Store, Salem
properties never objected to the presence of sale items on the
sidewalk even though displayed throughout the year (Tr. 68).
Discussion and Conclusions
Preliminary Statement
As will be seen hereafter, I conclude that, as a prima facie
matter, the General Counsel has proved that the union orga-
nizers in both the June 23 and October 7, 1989 incidents,
were engaged in protected concerted activities within the
meaning of Section 7 of the Act; and that their being ex-
cluded from the sidewalks and adjacent parking areas in both
shopping centers, and their being threatened with arrest by
the police if they failed to avoid those areas, violated Section
8(a)(1) of the Act.
Respondent interposed at least five defenses. The first de-
fense, focusing on their activities within the stores, was that
the union agents were not engaged in protected concerted ac-
tivities. In substance, I concluded that absent more specific
evidence of linkage of in-store and potential out-store activi-
ties, Respondent’s argument that the in-store activity was so
obstructive and undermining of its in-store business activi-
ties, as to be unprotected or illegal under the Act is essen-
tially irrelevant. The allegations of the complaints and Gen-
eral Counsel’s positions at the hearing and in brief focused
entirely on the exclusion of the union agents from the adja-
cent sidewalks and parking areas, not on the in-store activi-
ties. Alternatively, the events within the store, such as al-
leged blocking of aisles, bumping, talking to customers and
employees, if they occurred, were not of such gravity as to
require that the union agents be banned from soliciting in
any common areas outside the store.
Respondent makes two sets of further arguments in de-
fense. The first set of arguments is premised on the theory
that, regardless of the lease or other basis showing Respond-
ent possessing, in itself, an ‘‘exclusory’’ right to eject the
union organizers from the sidewalks and parking areas in the
shopping centers, Respondent actually acted ‘‘in conjunc-
tion’’ with the landlords and had the landlords’ rights to eject
the union organizers. The two arguments supporting this the-
ory are: (1) that Respondent had the express authority, de-
rived from express oral agreements with the respective land-
lords, to eject trespassers from the sidewalks and parking
areas adjoining the respective stores; and (2) that even if it
did not have such express authority, the landlords neverthe-
less ratified the acts of Respondent expelling or causing the
expulsion of the union organizers thereby granting to Re-
613FOOD LION, INC.
10 Area standards picketing, while protected activity under Sec. 7 of the Act,
appears to be one of the weaker forms of union activity protected under Sec.
7. See Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 207 fn. 42 (1975);
Accord: Giant Food Stores, supra. On the other hand, the Supreme Court was
‘‘careful to note,’’ as the court observed in Lechmere, Inc. v. NLRB, supra,
that the right to organize without employer interference is a heartier Sec. 7
right, standing at ‘‘the very core’’ of the Act, Sears, Roebuck v. Carpenters,
supra at 206 fn. 42; Lechmere, Inc. v. NLRB, supra. To the extent that the
court in Sears, Roebuck v. Carpenters, also stated, at 205–206 fn. 41;
Lechmere, Inc. v. NLRB, supra at 93 fn. 5, that the right to trespass for organi-
zational purposes has generally been denied except in cases involving unique
obstacles to nontrespassory methods of communication with the employees,
Continued
spondent the ‘‘exclusory’’ right, ab initio, to eject the union
organizers.
Alternatively, Respondent presents a further set of two re-
lated arguments, both based on the theory that Respondent,
as tenant under the identical leases herein, itself possessed a
property interest amounting to an ‘‘exclusory’’ right to eject
the union organizers from the sidewalks and parking areas
because: (3) the identical terms of the leases, themselves,
give rise to a common-law easement in the sidewalks and
parking areas which, under the law of the State of Virginia,
is a sufficient exclusory property interest to meet the thresh-
old issue presented in Jean Country, infra, the invasion of
which should be protected by permitting Respondent to cause
the lawful ejection of the union organizers; and (4) in any
event, the adjoining sidewalk and parking areas, ‘‘working
and selling areas’’ of Respondent to the same degree as the
inside areas of the leased stores, should be made subject to
the same legal protection accorded to lawful nonsolicitation
rules Respondent maintains against solicitation inside its
leasehold, thus permitting Respondent to eject the union or-
ganizers from such sidewalk and parking lot ‘‘working and
selling’’ areas.
Lastly, as a controlling factor, it must be recalled that ad-
judication of interests of the parties rests almost exclusively
on the events of the particular days in question. Thus, the
facts of June 23 and October 7, 1989, are frozen and it is
those facts which are the subject of adjudication rather than
the facts as they may appear as the parties engage in further
jockeying for position in the union’s attempt to organize Re-
spondent’s employees. See Lechmere, Inc. v. NLRB, 914
F.2d 313 (1st Cir. 1990).
The consolidated complaints allege violations of Section
8(a)(1) of the Act occurring separately at two stores; on June
23, 1989, at the Breezewood Shopping Center; on October
7, 1989, at the Chancellor Shopping Center. The complaints
do not allege violation of the Act because of any Respondent
misconduct involving union activities within the stores; rath-
er, the complaints allege violation of Section 8(a)(1) of the
Act by Respondent’s refusal to permit union representatives
to engage in organizational activities, including solicitation
and distribution, on the common areas adjacent to Respond-
ent’s facilities at both stores. In addition, the General Coun-
sel alleges a further violation of Section 8(a)(1) because of
the Respondent’s twice causing the sheriff in Spotsylvania
County to threaten the arrest of the union organizers for en-
gaging in protected organizational activities.
We are here concerned solely with the competition, under
Sections 7 and 8(a)(1) of the National Labor Relations Act,
as amended, between the Union’s right to organize Respond-
ent’s employees, using nonemployee organizers, and Re-
spondent’s right to use areas adjacent to its stores for busi-
ness purposes untrammeled by the incursion—perhaps tres-
pass—of nonemployee union organizers on these adjoining
sidewalks and parking lots.
The events of June 23 and October 27, 1989, at the two
stores, are part of an ongoing struggle between the union and
Respondent, each jockeying for position in the Union’s at-
tempt to organize Respondent’s employees. This type of on-
going competitive effort is not uncommon at the present
time. See Lechmere, Inc. v. NLRB, supra. Indeed, as Re-
spondent notes, the Union has engaged in a consumer boy-
cott campaign against Respondent beginning in late 1985,
through handbilling, radio, newspaper, and billboard adver-
tisements urging consumers not to shop at Respondent’s
stores. In the Fredericksburg area, in particular, the Union
used billboard advertising and handbilling and, in 1987,
handbilled in the parking lot directly across from the
Breezewood store outside its front entrance.
Although Lechmere, Inc. v. NLRB, supra, is an accurate re-
cent restatement and collection of Supreme Court and other
authority analyzing, in the presence of varying factual situa-
tions, the resolutions of respective rights of parties competing
under Section 8(a)(1) in organizational (and other) efforts at
union communication on private property, the Board’s
present standards, to which I am bound, resolving the rights
of labor organizations to enter upon private property within
shopping centers, appears in Jean Country, 291 NLRB 11
(1988), and its progeny.
As the court observes in Lechmere, Inc., v. NLRB, supra,
Board, in Jean Country, noted that there is ‘‘a spectrum of
Section 7 rights and private property rights and . . . the
place of a particular right in that spectrum might affect the
outcome of a [given] case,’’ Jean Country, supra. Among the
Board’s essential concerns is ‘‘the degree of impairment of
the private property right if access should be granted.’’ There
can be no question that Jean Country specifically concluded
that availability of reasonable alternative means to permitting
the intrusion of private property rights was to be a factor
considered in every access case, Jean Country, supra at 13.
In particular, the Board stated that its overruling of the Fair-
mont Hotel doctrine focused on the statement in that case
that in some cases, the alternative means factor must be
sometimes excluded. See Jean Country, supra at 11 fn. 2.
At the same time, the Board, in Jean Country, supra at 13
fn. 7, held that there is an initial burden on the party claim-
ing an unlawfully invaded property right to show what its in-
terest in the property is. The Board specifically concluded
that a party has ‘‘no right to object on the basis of other per-
sons’ property interest; and an employer’s . . . objections to
having union pickets outside its establishment does not in
itself rise to the level of a property interest.’’ Thereafter, in
Jean Country, the Board, in analyzing the facts before it, de-
clared that it must first examine whether the Respondent had
a ‘‘genuine interest’’ in the property from which it was seek-
ing to exclude the union’s organizational and recognitional
picketing.
Almost a year after the Board issued Jean Country, a fur-
ther gloss on the resolution of competing rights appeared in
Giant Food Stores, 295 NLRB 330 (1989). In that case, the
Board further refined the Jean Country requirement of its
making a threshold inquiry into the shopping center store’s
‘‘genuine interest’’ in the property from which it sought to
exclude a union engaged in area standards picketing.10 The
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that assertion was bottomed on the facts in NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 (1956). In Babcock & Wilcox Co., as the court noted in
Lechmere, Inc. v. NLRB, supra, the employer was a manufacturer which owned
and operated a plant within a fenced 100-acre tract from which the public was
excluded. The Supreme Court held that nonemployee union organizers did not
enjoy the same status as employees and could be excluded from the employ-
er’s private property if reasonable efforts by the union, through other available
channels of communication, would have enabled it to reach the work force
with its organizational message. As will be seen hereafter, in the instant case,
the Respondent store-lessee owns no property, does not operate in a remote
fenced location, encourages the entry of the public on the parking lots and
sidewalks and is forbidden to block pedestrian passage on the sidewalks.
11 Again, neither of the lessees in evidence (G.C. Exhs. 3 & 4) contain the
referred-to ‘‘Exhibit A.’’ Since the referred-to Exhibit A does not grant to Re-
spondent an exclusory interest (except in the rear unloading area), the fact that
there is no attached ‘‘Exhibit A’’ is not a serious impediment to disposing of
the instant case as it would be if there had been an exclusory interest noted
in such omitted exhibit in the sidewalks and parking lots. Compare Giant Food
Stores, supra at fn. 8.
inquiry required a threshold determination of whether, as a
preliminary matter, the employer could establish that it had
‘‘any exclusory property interest’’ in the area from which it
would exclude the Union. Giant Food Stores, supra. In short,
because the store owner in that case, acting without the aid
and support of the shopping mall owner, failed to show that
it ‘‘had an exclusory property interest’’ in the areas where
the protected picketing and handbilling occurred, the Board
concluded that the store tenant violated the Act when it
caused the local police to move the picket away from shop-
ping center parking areas. The Board, having determined that
no ‘‘exclusory’’ property interest was proved, found it un-
necessary to reach the question of whether the union was
obliged to prove that no reasonable alternative means of
communicating with its desired audience existed. I conclude
that ‘‘alternative means’’ proof is required only after thresh-
old proof that an exclusory property right (of the lessee
store) was invaded.
In Giant Food Stores, supra, the landlord (Easton), as in
the instant case, granted the tenant a 20-year lease of the
store in the shopping center. The Board found that the lease
provided only that the store was leased ‘‘. . . together with
the right to the nonexclusive use, in common with others, of
all such automobile parking areas, driveways, footways and
other facilities . . . designed for common use.’’ The Board
further found that the lease provided:
Landlord shall construct . . . the parking areas . . . ap-
proaches, entrances, exits, sidewalks, [and] roadways
. . . all hereinafter referred to as ‘‘common areas,’’
‘‘common facilities,’’ or ‘‘public areas,’’ for the rea-
sonable operation of the Shopping Center and Tenants
business in the Demised Premises, all of which Tenant,
its customers, employees and all those having business
with it, are hereby granted the right to use and enjoy,
in common with other tenants, their customers, employ-
ees and those having business with them. Landlord
shall keep and maintain the foregoing in good repair
and condition and reasonably free of snow, ice, refuse
and other obstructions.
In finding, as above noted, that the lessee-tenant, as a
threshold issue, failed to establish an exclusory property in-
terest in the sidewalk in front of the store or in the shopping
center parking areas where the picketing and handbilling oc-
curred, Giant Food Stores, supra, the Board observed that the
lease granted to the tenant-lessee merely a ‘‘nonexclusive’’
right to ‘‘use’’ the common areas. The Board further ob-
served that the lease specifically provided that it was the
landlord (Easton) who was obligated to maintain the com-
mon areas and keep them free of obstructions, Giant Food
Stores, supra. In relying on the failure of any proof that (a)
the tenant had an ‘‘exclusory’’ property interest in the areas
from which it excluded the Union engaged in the weak Sec-
tion 7 right of area standards picketing; and (b) the landlord
participated in the demand for the removal of the pickets, the
Board concluded that the tenant violated the Act when it
caused the police to remove the pickets from the parking lot
adjacent to the store, supra.
As a prima facie matter, therefore, I would find that the
instant facts are substantially controlled by the Board’s dis-
position of similar facts and circumstances in Giant Food
Stores, 295 NLRB 330 (1989), noting only that in the instant
case the Section 7 activity is the ‘‘core right,’’ Sears, Roe-
buck v. Carpenters, supra, of organizational activity while in
Giant Food Stores, the Board found a 8(a)(1) violation even
where the weak Section 7 right it protected was merely area
standards picketing. If the rule in Giant Food Stores is ap-
plied here, as I find, it applies a fortiori.
In Giant Food Stores, supra, the Board found that the
‘‘non-exclusive right to use’’ common areas did not give rise
to an exclusory property interest in the sidewalk in front of
the Giant Store or in the shopping center parking areas. In
the instant case, the landlord granted, in the case of both
stores, a similar ‘‘non-exclusive right . . . to use . . . all the
Common Areas, including parking areas as shown on Exhibit
‘‘A’’11 which areas are acknowledged to be for use by such
persons, along with others similarly entitled for parking and
for ingress and egress, between the demised premises and all
of the portions of the shopping center and the adjoining
streets, alleys and sidewalks. In addition, as in Giant Food
Stores, supra, it is the landlord who ‘‘covenants and agrees
to operate and maintain all the common areas . . . and pro-
vide therefore all such services as are reasonably required in-
cluding, but without limitation, cleaning and sweeping, snow
and ice removal, lighting, policing’’ (G.C. Exhs. 3 & 4; at
6 at both leases; the Breezewood and Chancellor lessees are
identical in this respect). Moreover, in terms of the weaken-
ing of Respondent’s property rights, not only was the adjoin-
ing sidewalk area and parking area open to the public (unlike
the fenced area in NLRB v. Babcock & Wilcox, supra,) but,
as in Jean Country, supra, Respondent here did not wholly
restrict the use of the sidewalk and parking area property to
its immediate commercial goals. Thus, the Respondent here
permitted (and indeed utilized a centralized formal method at
all of its stores for authorizing and keeping track of) the use
of the adjacent sidewalks and parking areas for various chari-
table purposes without charging a rental fee therefore or even
requiring the posting of insurance, maintenance or property
bonds. Compare Jean Country, supra.
As a prima facie matter, therefore, I find that the rule of
Giant Food Stores, supra, applies a fortiori, to the instant
facts. I conclude that Respondent violated Section 8(a)(1) of
the Act by excluding nonemployee organizers from engaging
in solicitation of Respondent’s employees on the sidewalks
in front of, and in the roadways and parking lots adjacent to,
Respondent’s leased premises at both stores. I would predi-
615FOOD LION, INC.
cate that conclusion on the finding that Respondent has
failed to meet its threshold obligation to prove an exclusory
right of property in the sidewalks, roadways, and adjoining
parking areas. In the same vein, I would conclude, as in
Giant Food Stores, supra, and Polly Drummond Thriftway,
292 NLRB 331 (1989), that on such findings, it becomes un-
necessary to reach or decide the question of the availability
and efficacy of alternative means of communication by the
Union with the employees whom it sought to organize. That
analysis appears to be required only where there is some sub-
stantial (i.e., ‘‘exclusory’’) employer property right being in-
vaded so as to bring into play the Babcock Wilcox, supra,
‘‘alternative means’’ requirement. In short, in the presence
here of the strong organizational Section 7 right, and in the
absence of any employer exclusory property right, there is no
need to reach or analyze an alternative means of communica-
tion because there is a wholly insufficient competing em-
ployer property right in the sidewalks, roadways, parking lots
(all ‘‘common areas’’ under the landlord’s sole dominion)
against which to measure the invasion of the strong Section
7 right.
Defenses
In resisting this prima facie violation, the Respondent
makes several arguments.
Alleged Unprotected or Unlawful Conduct
Its first argument (R. Br. at 53 et seq.) is that the com-
plaints should be dismissed because the Union engaged in ei-
ther unprotected or unlawful conduct. Hence, Respondent ar-
gues that if the Union, at both stores, was not engaged in
protected Section 7 activity, the Respondent’s conduct in
causing the union organizers to be excluded from the side-
walks and parking areas does not constitute an 8(a)(1) viola-
tion. To the extent that this argument rests on evidence per-
taining to the Union’s activity inside Respondent’s stores, the
evidence is essentially irrelevant to the allegations of the
complaint, and to the General Counsel’s and the Union’s po-
sition both in brief and at the hearing. Respondent’s brief
concedes the absence of ‘‘in-store’’ complaint allegations (R.
Br. at 83). To the extent that organization and solicitation of
employees were attempted by the Union’s agents inside the
stores, there is no question that such activity is not ordinarily
protected by Section 7 of the Act and may be forbidden by
Respondent, e.g., May Department Stores Co., 59 NLRB 976
(1944), enfd. as modified 154 F.2d 533 (8th Cir. 1946), cert.
denied 329 U.S. 725 (1946). Organizational solicitation in
working and selling areas within the store reasonably tends
to disrupt the employer’s business and is therefore consid-
ered activity which is unprotected by Section 7 of the Act.
It is for that very reason that Respondent’s extensive analysis
of union organizers soliciting off-duty and on-duty employ-
ees in sales areas within the store is essentially irrelevant. In
addition, there is no credible evidence to support an infer-
ence that Respondent could reasonably expect union mis-
conduct outside the store on the sidewalks and parking lots.
The conduct complained of in the complaint is Respond-
ent’s exclusion of the union organizers from sidewalks and
parking areas outside the stores. To the extent that Respond-
ent, in similar vein, urges that the union agents inside the
store bumped into at least one customer within the store, I
have already disposed of that matter and, in any event, do
not credit Store Manager Sherman’s testimony of such occur-
rence. It was not important enough, if indeed it occurred, to
report it to the police. Even were I to credit the occurrence
of the bumping, there is no suggestion in the evidence that
any such bumping was other than inadvertent. Respondent’s
attempt to make this instance of alleged bumping into a scud
missile attack misses the mark. The evidence fails to dem-
onstrate that any such conduct was of such a character as to
render the bumping to be an assault or a battery. The only
significance which I can fathom for Respondent’s suggestion
that the Union’s activities within the stores were unprotected
or unlawful is a desire to project the Union’s in-store con-
duct as a prelude to expected conduct outside the store. Since
the Union’s in-store conduct, whether bumping, temporarily
blocking the aisles, or indeed putting a hand on a customer’s
shoulder (also not shown to be an intentional or disrespectful
act), if credited, are of a minimal character, they do not sup-
port a foundation for misconduct Respondent might expect if
the Union were permitted to solicit and organize among Re-
spondent’s employees on the sidewalks and in the parking
areas adjacent the store. In such circumstances, I decline to
recommend that dismissal of the complaints because union
agents’ in-store conduct was allegedly unprotected or unlaw-
ful.
To the extent that Respondent argues, further, that the
Union attempted to solicit employees in front of the soda
machines on the sidewalk outside the store at the
Breezewood Shopping Center; and that such solicitation has
the same legal effect as solicitation inside the store because
the sidewalks and parking areas outside of the store are
‘‘working and selling areas,’’ such argument engages what
seems to be Respondent’s principal defensive position. Re-
spondent argues that the sidewalks and the parking areas ad-
jacent thereto (used by customers, vendors, its baggers, other
personnel), and the general public are the legal equivalent of
the internal portions of the store and are therefore subject to
the same legal protection from union solicitation and organi-
zation as working areas inside the store. This position, of
course, eliminates any obligation to establish a Respondent
‘‘exclusory’’ property right in the sidewalks or parking areas
which are ‘‘common’’ areas under the leases. Rather, the
sidewalks have become inside areas. Respondent desires the
conclusion that where it lawfully sells (or displays) its mer-
chandise becomes the legal equivalent of its internal, leased
space and subject to the same freedom from solicitation
under its lawful ‘‘no-solicitation’’ rules which bind its em-
ployees and the Union. This argument will be separately dis-
cussed, below.
Respondent acted with the Landlords’ express authority
Secondly, Respondent argues that the evidence shows that
it had express authority from its landlords, in both cases,
thereby exercising the landlords’ rights to exclude the union
organizers from the adjacent sidewalks and parking areas.
Thus, Respondent sought to adduce evidence to show agree-
ments with both landlords, prior to the time of its particular
acts of exclusion, to eject union organizers from the side-
walks and parking areas. There was no such credible evi-
dence.
With regard to the Breezewood Shopping Center (the inci-
dent of June 23, 1989), Respondent stated (Tr. 316) that it
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Again, it is the landlord, under the lease, who has dominion and control
over the ‘‘common areas.’’ The tenant’s leasehold rights to use the common
area along with similar co-tenants’ rights do not describe an ‘‘exclusory’’ right
in the tenant. Giant Food Stores, 295 NLRB 330 (1989).
13 The only relevant letter in evidence is the August 4 from Michael T. Hall
& Associates. That letter could hardly be authority for a June 23 act. See infra.
14 The witness, Jerry C. Hall, is the nephew of Michael T. Hall and the
grandson of H. D. Hall (Tr. 672).
15 Neither Michael T. Hall nor H. D. Hall appeared as a witness in this pro-
ceeding. According to Jerry C. Hall’s testimony, H. D. Hall is a principal in
Michael T. Hall & Associates and is engaged in day-to-day management of
the Breezewood Shopping Center (Tr. 659–660). Jerry C. Hall testified that
part of his own job was to act as a conduit in the actions of H. T. Hall and
the Breezewood Center (Tr. 659). The failure of H. D. Hall to testify is not
fully documented in the record. Counsel for Respondent stated that H. D. Hall
was prepared to show that Respondent had authority from the
owner of the shopping center to exclude trespassers from the
common areas at the Breezewood store; and that this author-
ity was derived not only from the lease12 but, from express
landlord authorization to Respondent to exclude trespassers
from the common areas (Tr. 316). The witnesses on whom
Respondent relied were principally its Breezewood store
manager, Rodney L. Sherman, and Jerry C. Hall, an agent
of Michael T. Hall and Associates, Ltd. whose authority re-
lated inter alia, to the negotiation and administration of
leases (Tr. 655–656). Again, Michael T. Hall, himself, is the
owner of the Breezewood Shopping Center (Tr. 656). He is
the uncle of witness Jerry C. Hall.
The question to be resolved is whether Respondent’s caus-
ing the ejection of the union organizers from the sidewalks
and parking areas adjoining its leased Breezewood store was
its action alone or whether it was acting with the authority
of the landlord, Michael T. Hall and Associates. If the latter,
then Respondent was arguably acting with the landlord’s au-
thority over the ‘‘common areas’’ which include the side-
walk, roadways, and parking areas. Under such conditions,
the Union’s Section 7 statutory right to organize Respond-
ent’s employees would collide with a truly formidable prop-
erty interest, meeting the standard of ‘‘exclusory property in-
terest’’ in the sidewalks and parking areas in front of Re-
spondent’s store within the meaning of Giant Food Stores,
and Polly Drummond Thriftway, 295 NLRB 330 (1989),
supra.
On this first question, whether Respondent, at the
Breezewood store, acted with the authority of the landlord,
as above noted, it relied on the testimony of Jerry C. Hall
and Rodney Sherman. Their testimony on this issue is unac-
ceptable because of problems including veracity.
1. The testimony of Store Manager Rodney C. Sherman
on the existence of prior authority from the landlord to
evict the union organizers
Sherman testified that he had conversations, particularly
with Michael T. Hall, owner of the Breezewood Shopping
Center, regarding Respondent’s right to exclude trespassers
from the common area (Tr. 317); that these conversations re-
lated to solicitation in the parking lot and in front of the
store (Tr. 317); that the authorization from the landlord to
Respondent to evict trespassers from the sidewalk and park-
ing lot took the form of a letter from Michael T. Hall;13 and,
that prior to receipt of the letter, he had a brief meeting with
Michael T. Hall himself concerning this matter (Tr. 318–
319). He testified, particularly, of a February meeting, the
brief meeting in which he introduced himself to Michael T.
Hall and reviewed ‘‘quite a few things at that point in time’’
(Tr. 319). Although Sherman testified that he had discussions
with Michael T. Hall, himself, regarding the exclusion of
trespassers, there was no credible testimony or other evi-
dence that (a) there were any such conversations in February,
or at any time prior to the June 23, 1989, incident in which
(b) anyone from the Michael T. Hall Associates organization
orally, or in writing, authorized Respondent to exclude tres-
passers from any portion of the sidewalks or common areas
or anywhere else.
On cross-examination, although Sherman testified to the
existence of this February 1989 conversation with Michael T.
Hall (Tr. 355), and although he testified that they spoke
about ‘‘a variety of things’’ in this brief meeting (Tr. 355),
including solicitation (Tr. 356), he at first testified that he
could not remember the conversation and could not ‘‘quote
the conversation verbatim’’ (Tr. 356). When then pressed to
state his best recollection of the conversation (Tr. 356), Sher-
man testified that Michael T. Hall said, on the subject of so-
licitation: ‘‘. . . he [Michael T. Hall] said he does not allow
it. ‘‘ He finally testified that, in essence, that was the whole
conversation. Regarding further meetings with Michael T.
Hall concerning solicitation, before the June 23 incident, he
first testified that the meeting was in Michael T. Hall’s office
before the June 23 incident (Tr. 357). But he then testified
that at the time of that meeting, the ‘‘union people were out,
again’’ (Tr. 358). Although he first insisted that this meeting
occurred prior to June 23 (Tr. 358), he ultimately admitted
that it did not occur prior to June 23, 1989, because it oc-
curred only after the ‘‘union people’’ were out there (Tr.
358). He insisted only that there was a meeting after June
23, 1989, with Michael T. Hall (Tr. 359).
Any view of Sherman’s testimony with regard to author-
ization from the landlord prior to the June 23 incident, de-
spite leading and suggestive questions from counsel on direct
examination, demonstrates that there was no evidence of any
such authorization flowing from the landlord to Respondent
to evict anybody from any area. The most that can be said
of any such conversation, concerning solicitation prior to the
June 23 incident, is that Sherman inquired of Michael T.
Hall’s own viewpoint on the subject of solicitation (Tr. 356)
and that he received it: Michael T. Hall told him that he does
not allow solicitation (Tr. 356–357). The landlord’s letter of
August 4, 1989, arguably a potential ratification could hardly
constitute prior authorization for an action of the previous
June. In short, Store Manager Sherman’s testimony fails to
show any authorization from the landlord, prior to the June
23, 1989 incident, to evict anybody from any area whatso-
ever.
2. The testimony of Jerry C. Hall
Jerry C. Hall, an agent of Michael T. Hall and Associates,
Ltd., testified that he himself met with Food Line representa-
tives on a rather frequent basis (Tr. 671–673). He neither
named the persons with whom he met nor the dates or ap-
proximate dates on which these meetings occurred. His testi-
mony related principally to conversations he had with his
grandfather, H. D. Hall.14 The conversation between Jerry C.
Hall and his grandfather, H. D. Hall, related to conversations
that his grandfather allegedly had with Respondent’s store
manager, Rodney Sherman.15
617FOOD LION, INC.
was at his home in Louisa, Virginia, under the care of a physician, being
medicated for Parkinson’s disease, which medication commenced the day be-
fore the reopened hearing on May 4, 1990 (Tr. 668). There was no suggestion
that H. D. Hall’s present Parkinson’s disease, or the medication therefore, had
so incapacitated him so as to make him unable to testify at the proceeding.
Thus, there was no certificate from a physician advising against such testi-
mony nor was there even a claim that H. D. Hall was unable to testify. This
matter becomes particularly significant because of Store Manager Sherman’s
later testimony, when recalled later in this proceeding, in May 1989, that he
had not actually had conversations with Michael T. Hall. Rather, he testified
that, between his original testimony in March 1989, and his resumed testimony
in May 1989, he discovered that he had spoken to ‘‘Dan Hall’’ (Tr. 786). Al-
though General Counsel appears to make much of the question as to whether
H. D. Hall is actually ‘‘Dan Hall’’ (G.C. Br. at 16), there is a suggestion in
the record that H. D. Hall is actually Dan Hall (Tr. 663). Again, neither senior
Hall testified.
It is apparent, as General Counsel argues, that substantially
all of Jerry C. Hall’s testimony regarding what H. D. Hall
told him of H. D. Hall’s conversations with Store Manager
Sherman is merely hearsay. Furthermore, this testimony, ad-
mitted over particular objection (Tr. 669), was received on
the theory that Judge Zankel believed that he could ‘‘evalu-
ate’’ the testimony. Especially in view of Store Manager
Sherman’s wholly unreliable testimony regarding when he
spoke to anyone in the Hall organization, and then as to
which representative of the Hall organization he spoke with
concerning authority allegedly granted to Respondent to evict
the union organizers from the sidewalk and the parking
areas, and in view of Jerry C. Hall’s failure to identify any
representative of Respondent with whom he spoke; and in
view of the failure of H. D. Hall to appear at this hearing
notwithstanding inadequate medical excuse therefore (in the
absence of a physician’s certificate and in the absence of
even a claim that he was so far incapacitated as to be unable
to testify), I do not give weight to Jerry C. Hall’s hearsay
testimony of conversations apparently with H. D. Hall, his
grandfather.
Were I to give any weight to Jerry C. Hall’s testimony,
I would agree with General Counsel that it is directly contra-
dicted by Store Manager Sherman’s testimony and the testi-
mony of Deputy Sheriff Whitney. For instance, part of the
testimony of Jerry C. Hall was that H. D. Hall told him that,
after a Respondent representative contacted him, on or about
June 23, 1989, concerning interference with Respondent’s
business by union representatives, he (H. D. Hall) had called
the police in order to prevent these persons from interfering
with Respondent’s business and to vacate the premises (Tr.
668–669). When Store Manager Sherman was recalled to tes-
tify on May 4, 1989, he testified that after June 23, 1989,
apparently immediately thereafter, he spoke with ‘‘Dan
Hall’’ (Tr. 787), describing the action he took: ‘‘I had called
the sheriff’s department. The sheriff’s department came
down’’). Sherman testified that he explained the whole situa-
tion to Dan Hall (Tr. 787). According to Store Manager
Sherman, H. D. Hall told him that it was ‘‘fine, no problem’’
and that H. D. Hall was ‘‘in agreement with everything that
I had done and in support of everything that I had done.’’
(Tr. 787). The General Counsel comments adversely on the
disparity between the testimony: that Sherman testified that
he had called the sheriff’s department, and J. C. Hall’s testi-
mony that his grandfather told him that his grandfather him-
self had called. I agree with General Counsel that there is
a disparity in the testimony. Of course, Jerry C. Hall might
be truthfully relaying his grandfather’s statement notwith-
standing that the grandfather was enlarging and dramatizing
his own participation in the event by asserting that he him-
self called the police rather than truthfully reporting that
Store Manager Sherman had told him that it was Sherman
who had actually called the police. The absence of H. D.
Hall from the witness stand for cross-examination is the
foundation of the weakness of hearsay reports of his state-
ments.
Of greater gravity, in rejecting Jerry C. Hall’s hearsay tes-
timony (regarding an effort to show that the landlord was
acting in conjunction with Respondent in causing the eviction
of the union organizers) is the testimony of Spotsylvania
County Deputy Sheriff Dean Whitney. Whitney testified that
his police dispatcher told him that the ‘‘management’’ need-
ed assistance with a disturbance at the store (Tr. 542). While
it is arguable that ‘‘management’’ might mean a phone call
from the management of Michael T. Hall and Associates,
Ltd., rather than the management of Food Lion, Inc., it ap-
pears to me that the clear context of Officer Whitney’s testi-
mony was that ‘‘management’’ referred to management of
the store (Tr. 542). There is no suggestion in Whitney’s or
Sherman’s testimony that Whitney heard that the Hall orga-
nization was the source of the call for assistance; nor is there
any testimony that the dispatcher told him that there were
two calls or that the owner of the shopping center was in-
volved. For the above reasons, I reject the hearsay testimony
of Jerry C. Hall and do not credit the assertion that H. D.
Hall telephoned the police when a Food Lion representative
told him of the disturbances in June 1989 (Tr. 668–669).
I therefore conclude, on the basis of the record before me,
that there is no credible evidence to support the Respond-
ent’s assertion that prior to or at the time of Respondent’s
June 23, 1989 eviction (through the agency of the police) of
the union organizers from the sidewalks, roadways and park-
ing areas adjoining Respondent’s store in the Breezewood
Shopping Center, that it was acting in conjunction with or
with the authority of Michael T. Hall & Associates, Ltd., the
landlord. On the contrary, I conclude that it was acting alone;
that it alone caused the police to evict the union organizers
from the sidewalk adjoining Respondent’s store and from the
parking areas adjacent thereto. On such a finding, I continue
in my conclusion that Respondent was acting without an ex-
clusory property interest under the terms of the lease or by
virtue of any express or implied authority derived from the
landlord. Having caused the police to eject the union orga-
nizers who were engaged in protected Section 7 activity at
the time and lawfully could occupy the sidewalk, internal
roadways and adjacent parking areas, and restricting their
presence to places outside thereof, Respondent violated Sec-
tion 8(a)(1) of the Act as alleged.
a. Ratification
Having failed to demonstrate ‘‘exclusory’’ rights under the
lease or adduce credible evidence to show prior or contem-
poraneous landlord authorization to exclude anyone from the
common areas, Respondent asserts that, in any event, both
landlords, after the respective June 23 and October 7 inci-
dents, ratified Respondent’s acts in causing the exclusion of
the union organizers.
Respondent notes that at the Breezewood store, Store
Manager Rodney Sherman met with someone from the Mi-
chael T.. Hall & Associates management (it is, of course, ob-
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 By establishing such an exclusory property right, Respondent would at
least then be entitled to a weighing of a property right against the Union’s
competing Sec. 7 right sufficient to bring into play the Union’s obligation to
prove no adequate alternate means of communication.
scure with whom he met, whether it was Michael T. Hall
himself or ‘‘Dan’’ Hall, compare: Tr. 359 with Tr. 787); that
he told this representative that he had called the sheriff’s de-
partment because of the ‘‘disruption of the customers’’ (Tr.
787); and that this representative of the landlord told him
that he was in agreement with everything that he [Sherman]
had done and supported what he had done (Tr. 787). By its
letter of August 4, 1989, to Respondent, Michael T. Hall &
Associates eliminated any ambiguity concerning Respond-
ent’s right to exclude solicitors in the common areas by af-
firming such right (R. Exh. 13). I conclude that, as Respond-
ent contends, the landlord thereby ratified Respondent June
23 action at the Breezewood store.
There was a parallel occurrence at the Chancellor Shop-
ping Center store immediately after the October 7, 1989 inci-
dent. Jim Ostrander, representative of the landlord, Salem
properties, testified that shortly after the October 7, 1989 in-
cident, an otherwise unidentified Food Lion representative
telephoned and told him that ‘‘some people’’ had been both-
ering Respondent’s employees and customers and that Re-
spondent had asked the former to leave. In response, Jim
Ostrander told the Food Lion caller that ‘‘if they became a
nuisance, I’m glad you did. We appreciated . . .’’ (Tr. 681).
The caller apparently failed to describe the area from which
the intruders had been asked to leave (Tr. 682).
While Michael T. Hall & Associates, after June 23, af-
firmed, in writing (on August 4) Respondent’s right to ex-
clude trespassers from the common areas at the Breezewood
store (R. Exh. 13), there is no writing in evidence to suggest
any approbation of Respondent’s conduct by Salem prop-
erties at the Chancellor store. Rather, Jim Ostrander told the
unidentified Food Lion caller that he was glad of Respond-
ent’s conduct ‘‘. . . if they became a nuisance.’’ There was
no showing that the union agents were ‘‘a nuisance’’ outside
the store and on the sidewalk. Nevertheless, as Respondent
urges (R. Br. at 93), Ostrander testified that Respondent’s
no-solicitation policy (extending not only to solicitation in-
side the store but at the entrance and exit areas of the store
and the sidewalk area immediately in front of the store,
under the canopy over the entire front sidewalk area; (G.C.
Exh. 20.), was consistent with Food Lion’s authority under
the ‘‘leasing arrangement’’ (Tr. 683) and was ‘‘consistent
with everything we’ve done with Food Lion and all our ten-
ants’’ (Tr. 683). Under such circumstances, I conclude that
Salem Properties affirmed and ratified Respondent’s conduct
of October 7, 1989, as Respondent urges.
Respondent suggests, from its theory of ratification, that
the landlords’ (the principals’) ratifications somehow exoner-
ates the Respondent (tenant-agent) from the tenant’s other-
wise unlawful acts.
In support of this alleged exoneration, Respondent cites
Electrical Workers Local 3 IBEW (Ericson Telecommuni-
cations), 257 NLRB 1358, 1369 (1981). In that case, there
is a strong dictum that a later union authorization of a prior
employee refusal to work constituted ratification of the em-
ployee conduct, thereby binding the union (principal) for the
acts of its agents (employees).The Union was thus in viola-
tion of Section 8(b)(4)(i) and (ii) of the Act. In concluding
that, under the law of Agency, the union’s ratification of its
members’ prior act bound the Union, the administrative law
judge cited, as authority, the Restatement of Agency (Re-
statement 2d, Agency § 82):
A principal [the Union] may ratify the Acts of the
agents [the employees] by affirming the prior acts
which did not bind the principal when done. Such rati-
fication has the same effect as though the acts of the
agent were originally authorized. [Emphasis added.]
From the above indented citation in the Restatement of
Agency, Respondent jumps to the conclusion that the words
‘‘originally authorized’’ exonerate Respondent, as the agent,
from its otherwise unlawful acts because of the principal’s
ratification. Respondent’s argument, of course, misconstrues
both the rule presented in the case and the citation from the
Restatement. That case holds, and the Restatement confirms,
that the Union (the principal) by its subsequent ratification
became inculpated by the acts of the erstwhile legal strangers
(the employees) who had become its agents by the ratifica-
tion. Thus, the case merely affirms the rule that subsequent
ratification by the principal inculpates the principal. Nowhere
in that case, nor in the cited Restatement paragraph, does it
suggest that the agent is exonerated. The words ‘‘originally
authorized’’ appearing in the Restatement merely declare that
the subsequent ratification has the effect of creating an agen-
cy in the employees by which the principal is inculpated.
The underscoring in the above-indented quotation from the
Restatement of Agency notes that the prior acts of the agent
originally did not bind the principal. By the ratification, the
principal is bound. Nothing of exonerating the agent. In
short, in the present case, any ratification by landlords Salem
Properties and Michael T. Hall & Associates of prior acts by
the tenant-agent [Respondent] would inculpate the principals
rather than exonerate the agents.
b. Respondent’s alleged common-law easement as an
‘‘exclusory’’ property right
As above noted, the above prior arguments relate to the
issues of whether (1) Respondent had prior oral or other au-
thorization from the landlords to exclude and (2) whether
subsequent landlord ratification would exonerate Respondent
from otherwise illegal tenant acts. Again, these arguments
were premised on the theory that Respondent, itself, did not
have the authority or right to exclude the union organizers;
rather, those arguments relied on delegated authority of the
landlords’ property interest to create, under the law, an ex-
clusory right in the tenant sufficient to lawfully eject the
union organizers and thereby meet the threshold property re-
quirement in Jean Country, 291 NLRB 11 (1988).16
These next Respondent arguments proceed on the premise,
however, that Respondent, itself, has a sufficient property in-
terest under the lease or, alternatively, under a ‘‘lease ar-
rangement’’ (including oral and/or written side agreements
with the landlord) to create an exclusory interest in Respond-
ent alone.
Respondent states that the leases at both stores, containing
identical provisions relating to its rights in the common
areas, demonstrate that the landlords have granted to Re-
spondent ‘‘an easement’’ in the sidewalks, internal roads and
parking lots (R. Br. at 89). Respondent derives this easement
from the language of the leases (G.C. Exh. 3 at 5; G.C. Exh.
619FOOD LION, INC.
4 at 5.) whereby the landlord grants to the tenant, its employ-
ees, agents, suppliers, customers, and invitees, ‘‘a nonexclu-
sive right . . . to use . . . all the common areas, including
parking area, as shown on Exhibit A [in fact, as noted, there
is no Exhibit A attached to either of the leases] which areas
are . . . for use by such persons, along with other similarly
entitled, for parking and for ingress and egress between the
demised premises and all other portions of the shopping cen-
ter and the adjoining streets, alleys and sidewalks.’’ (Empha-
sis added.) Respondent urges that under the law of the State
of Virginia, a lease agreement which grants to specified ten-
ants the right to use the landlord’s property for specified pur-
poses, such as parking, is considered an easement (R. Br. at
90), Bunn v. Offut, 216 Va. 681; see also Bayless Investment
& Trading Co. v. Bekins Moving & Storage Co., 26 Ariz.
App. 265 (1976). Respondent, quoting the court in Bunn v.
Offutt, notes that the court stated:
Easements correspond to the servitude of the civil law
and consist (1) of privileges on the part of one person
to use the land of another . . . in a particular manner
and for a particular purpose . . . . The easement fur-
ther involves the right of freedom in its exercise from
interference by the owner . . . or other persons.
Respondent, citing 28 C.J.S., Easements, sec. 103, notes
that a right of action exists against a mere stranger who uses
or intrudes upon the easement, for as to such persons, the
rights of the owner are exclusive.
Respondent also notes that in Bayless Investment & Trad-
ing Co. v. Bekins Moving & Storage Co., supra, the court
stated:
In our opinion the effect of the parking area provisions
in the 1950 agreement . . . was to grant to Bekins a
parking easement for the non-exclusive use of its cus-
tomers, business patrons and visitors.
Respondent observes that the court found that this property
right, a nonexclusive easement, nevertheless granted an en-
forceable property interest:
Were it not for the existence of plaintiff’s equitable de-
fenses, plaintiff has presented a classic case calling for
the assistance of equity for the purpose of preventing
the continuous obstruction of an easement. [Emphasis
added.]
It appears to me, however, that there are at least three im-
pediments which Respondent’s argument of ‘‘common law
easement’’ fails to overcome. It must be assumed that Re-
spondent’s urging of the existence of ‘‘common law ease-
ment,’’ in the common areas (including the sidewalk outside
the store and the adjacent roadways and parking areas) is
tantamount to an assertion that Respondent’s nonexclusive
right to use the common areas amounts to a property interest
of sufficient weight to be described under Jean Country,
supra, Giant Food Stores, 295 NLRB 330 (1989), as an ‘‘ex-
clusory’’ property interest in those areas.
(a) In the first place, the Board has already established that
a lease, granting to a shopping center tenant a ‘‘non-exclu-
sive right to use’’ common areas, in the presence of the land-
lord’s obligation, as here, to not only maintain the common
areas and keep them free of ice and snow, but to actually
police them (G.C. Exh. 3 at 6; G.C. Exh. 4 at 6) fails to es-
tablish ‘‘any exclusory property interest in the sidewalk in
front of the . . . store or in the shopping center parking
areas,’’ Giant Food Stores, supra. On such Board precedent,
alone, I would be obliged to reject Respondent’s argument
that its nonexclusive ‘‘easement’’ in the sidewalks, road-
ways, and parking areas constituted the necessary ‘‘exclusory
property interest’’ in such areas within the meaning and
threshold requirement of the Act.
Regardless of this existing dispositive Board precedent,
however, it is clear that in the instant case, Respondent’s
nonexclusive easement, itself, is so limited, by terms of the
leases, as to not amount to an exclusory interest. There is no
question that, under the leases, the sidewalks, internal road-
ways and parking areas are ‘‘common areas’’ over which the
landlords maintain, inter alia, the police power and other re-
pair and maintenance obligations (G.C. Exh. 3 at 6; G.C.
Exh. 4 at 6) and in which Respondent has a mere nonexclu-
sive right ‘‘to use’’ along with its invitees, customers, suppli-
ers, etc. This same right, as I understand it, Respondent con-
cedes was given to the other tenants in the shopping center.
Although the common areas mentioned in the leases are
described on an ‘‘Exhibit A’’ which is nowhere attached to
either lease, I must and do assume, arguendo, that all the
shopping center parking lots, internal roadways and side-
walks are ‘‘Common Areas’’ within the lease. That was the
assumption in this litigation as I understand it. With regard
to Respondent’s right under the lessees to assert dominion in
the common areas, Respondent was given the right to install
two sidewalk soft drink machines, a sidewalk bench and
phone and to merchandise spring and summer bedding plants
and vegetables on the sidewalks in front of the store during
the months March through July (regardless that Respondent
merchandised these products throughout the year) provided,
however, in both cases, that the soft drink machines, tele-
phone, and the plants and vegetables ‘‘shall be located . . .
so as not to disrupt the normal flow of pedestrian traffic’’;
(and in the case of the bedding plants and vegetables) ‘‘so
as not to disrupt the normal flow of pedestrian traffic along
and across the sidewalk immediately in front of tenant’s store
and shall not hinder pedestrian access between Tenant’s store
and any other co-tenants within the shopping center.’’ Thus,
Respondent, under the lease, was forbidden to ‘‘hinder pe-
destrian access’’ between tenants store and those of any other
co-tenants within the shopping center. It is clear, on this
record, that the public was invited to the shopping center as
customers and that ‘‘pedestrian access’’ related to public ac-
cess along the sidewalks adjoining Respondent’s leasehold
stores. There is no suggestion, in the lease, or in other prac-
tice, that Respondent could so conduct itself as to obstruct
the ingress and egress of pedestrian use of the roadways,
parking lots, and sidewalks.
It appears to me, therefore, that the terms of the leases
themselves specifically withhold from Respondent the use of
the parking lots, roadways, and sidewalks so as to impede
pedestrian traffic thereon notwithstanding the grant to install
bench soft drink machines, the bench, the telephone, and to
display and/or sell vegetables and plants. Those areas of the
sidewalk, reserved by the leases to pedestrian access and
traffic, therefore, are wholly outside any Respondent property
right amounting to an exclusory right. To the extent of its
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
obligation to refrain from interfering with parking lot and
sidewalk pedestrian traffic, at least, Respondent has no ex-
clusory right on the sidewalks in front of its stores or in the
common parking areas. Failing to have an exclusory right on
such sidewalks and parking areas, Respondent had no ‘‘ex-
clusory right’’ to eject the union organizers therefrom based
upon any common law easement that it might have had. That
‘‘easement’’ was limited by the very grant contained in the
lease so as not to include the pathways on the sidewalk and
parking lots. In the exclusion of union organizers from a
property in which the landlord prohibited tenant interference
or obstruction, Respondent may not argue that it had a prop-
erty right rising to the level of an ‘‘exclusory right’’ in that
property so as to eject the union organizers. It had no exclu-
sory right at all in such pathways. Thus, I find that Respond-
ent’s ‘‘easement’’ in no way contained an exclusory property
right in the sidewalk and parking lot areas (over which the
landlord retains dominion under the lease ‘‘police power’’)
and where the landlords forbid obstruction. Testimony of
J. C. Hall that the landlord would not object to Respondent
blocking the entire sidewalk has little persuasiveness since
that position, on this record, was not communicated to Re-
spondent before the June 23 event and contravenes the ex-
press terms of the lease.
In any event, the authority cited by Respondent, particu-
larly Bayless Investment & Trading Co. v. Bekins Moving &
Storage Co., supra, appears to suggest that Respondent’s eq-
uitable right in a nonexclusive easement arises only from the
‘‘continuous obstruction’’ of such easement. There is no
proof on this record that Respondent gave the union organiz-
ers any opportunity, respectively on June 23 and October 7,
to obstruct the sidewalk, roadways, or parking areas much
less to be the subject of ‘‘continuous obstruction’’ of the
nonexclusive easement. For, in the cited authority, the court’s
equity jurisdiction to assist in the prevention of ‘‘continuous
obstruction’’ of the nonexclusive easement, arose only with
‘‘continuous obstruction.’’ In the instant case, with regard to
the common areas, there was neither obstruction nor continu-
ous obstruction nor the threat thereof on the record made.
For these reasons, it seems to me that Respondent’s argu-
ment, that its nonexclusive right to use the sidewalks and
parking lots, though limited even further by the terms of the
leases prohibiting obstruction, gave it a property right suffi-
cient to eject the union organizers from the sidewalks and
parking lots must fail. In reaching this conclusion, I further
conclude, that on the theory of common law easement, Re-
spondent failed to meet the threshold requirement of a show-
ing of an ‘‘exclusory property interest’’ within the meaning
of the Board’s gloss on Jean Country, 291 NLRB 11 (1988),
as noted in Giant Food Stores, supra. In sum, contrary to Re-
spondent’s argument (R. Br. at 95), since the union organiz-
ers were excluded by the police from everywhere on the
sidewalks and parking lots outside Respondent’s leased store,
including pedestrian pathways over which Respondent was
forbidden by the leases to obstruct or interfere, the union
agents would not interfere with or obstruct Respondent’s
nonexclusive easement because the terms of the easement,
under the lease, did not, in the first place, even include those
pedestrian access areas. Moreover, as above indicated, again
contrary to Respondent’s argument, assuming, arguendo, that
Respondent indeed had a ‘‘legitimate property interest’’ in
such areas (R. Br. at 95.) there was no showing, of inter-
ference with the easement. The police action removed the or-
ganizers before interference might occur. Under authority
cited by Respondent, it is only with continuous obstruction
of the easement that a ‘‘legitimate property interest’’ arises
to such a level as to become an exclusory interest involving
the court’s equity jurisdiction.
Lastly, we reach Respondent’s ultimate argument regard-
ing its possession of an exclusory right in the sidewalks and
parking area. It asserts that it had such right because of the
character of the sidewalk and parking lot as a ‘‘working and
selling area.’’ The record is replete with proof that Respond-
ent maintains, throughout the year regardless of the lease, in
both shopping centers, the soda dispensing machines, the
public telephone and particularly the vegetables, plants,
mulch and shrub merchandise on the sidewalk, and abutting
the wall of the store in front of the leased premises. Other
parts of the sidewalk are not obstructed except for the exist-
ence of the public telephone, the soda machines, and the
bench on the sidewalk. Respondent maintains a 3- to 4-foot
passageway on the sidewalk between the rows of plants and
vegetables and other produce (such as mulch, bark, and simi-
lar vegetable-type products) which it displays on the side-
walks. Moreover, there is uncontradicted evidence that Re-
spondent’s baggers assist the loading of merchandise from
the sidewalk and adjoining car lanes into cars and that, from
time-to-time, Respondent’s vendors, parked in common areas
near the sidewalk, use the front entrances of Respondent’s
stores in the unloading and delivery of their merchandise into
Respondent’s stores. Again, on the other hand, large areas of
the parking lot are not devoted to Respondent’s working or
selling areas and large areas of the sidewalk even in front
of Respondent’s stores, remote from the central entrance
areas, near the soda machines and pay phone, are free from
active merchandising notwithstanding that they are used for
storage on the sidewalks of shopping carts. Lastly, the leases
themselves, requiring freedom from pedestrian sidewalk ob-
struction, prevent such free areas from becoming a ‘‘working
and selling area.’’
Respondent argues (R. Br. at 96) that it ‘‘has precisely the
same interest in preventing disruption of its business with re-
gard to the sidewalk as it does with respect to the interior
sales area due to customer shopping and conducting related
activities on the sidewalk, the relationship between employ-
ees and customers, and the work performed by employees on
the sidewalk.’’ Respondent therefore argues that regardless of
the lease, it has extended its dominion over the sidewalk and
adjacent common areas because they have become Respond-
ent’s ‘‘selling and working areas.’’
In addition, Respondent points to the narrow passageway
that it has left on the sidewalk in the plant and vegetable
areas and notes that the very narrowness would lead to ob-
struction of its business entrance if the Union was permitted
to solicit in those areas because of contact with Respondent’s
customers and solicitation of its employees.
It is actually unnecessary to reach or analyze Respondent’s
ultimate position. For, at the Breezewood store, the disposi-
tive testimony on this point appears in response to Respond-
ent’s questioning of its Breezewood store manager, Rodney
Sherman, concerning the area from which Respondent caused
the police to ban and exclude the union representatives (Tr.
788):
621FOOD LION, INC.
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
[Sheriff] Whitney pointed towards the street, mean-
ing route 208, as far as leaving, I recall that. He went
like this, you need to leave you know, like that.
Q. Do you recall any other discussion concerning the
areas where they were or were not permitted to remain?
A. No, sir, I don’t.
At the Chancellor Shopping Center store, after the deputy
sheriff told the employees that they could not remain inside
the store, the union organizers asked if they could stand on
the sidewalk in front of the store and talk to employees. The
deputy, in the assistant store manager’s presence, told them
they could not (R. Br. at 48; Tr. 954). When the union orga-
nizers asked the deputy sheriff if they could buy a soda from
the public soda machine or use the public phone on the
storefront sidewalk, he told them they could not. When they
asked him where they could stand, the deputy told them that
they were proscribed, in substance, from the rectangular area
encompassing the length of the sidewalk in front of Respond-
ent’s store to the access road at the highway which abuts the
furthest reaches of the Food Lion parking lot. Outside of
those areas, the deputy told the union organizers they were
welcome (R. Br. at 48.).
For purposes of determining the existence of a 8(a)(1) vio-
lation, the above uncontroverted evidence is sufficient. Re-
spondent caused the union organizers to be banned from the
entire sidewalk in front of the store, all roadways and all of
the parking areas. Respondent can hardly contend that all
such areas are ‘‘working and selling’’ areas. These areas, in
any event, are the ‘‘common areas,’’ property over which,
under the leases, the landlords exercise dominion and in
which, under the leases and in practice, Respondent is forbid-
den to obstruct pedestrian traffic and has no ‘‘exclusory’’
property right. I conclude that by so doing at both stores, Re-
spondent violated Section 8(a)(1) of the Act, as alleged, Jean
Country, supra, on the specific dates alleged, Giant Food
Stores, supra.
For remedial purposes, in particular, I further specifically
conclude that Respondent’s above statutory violation encom-
passes all portions of the sidewalks in front of its stores
which remain ‘‘common areas’’ in which Respondent has no
exclusory right, i.e., property which, under the leases, re-
mains under the landlords’ dominion and which Respondent,
under the leases, is forbidden to obstruct pedestrian traffic.
Respondent’s fears, on this record, that union solicitors on
the sidewalks, roadways (where Respondent’s employees
place grocery packages into customers’ automobiles) and
parking areas may interfere with its business operations (the
narrow sidewalk aisles between the vegetable and plant mer-
chandise) are essentially moot. Respondent acted before any
evidence of such outside interference could occur. The
Union’s conduct inside the store was either unproven (bump-
ing a customer), legally insignificant (touching a customer’s
shoulder) or insufficient to support an anticipatory out-of-
store ban (blocking aisles) on the Union’s ‘‘common area’’
(sidewalk, roadway, and parking lot) right of solicitation.
To the extent that Respondent’s fear of such union solici-
tation interference may prove justified, it will have imme-
diate access to the courts of the State of Virginia for injunc-
tive relief cf. Bunn v. Offutt, supra; Bayless Investment &
Trading Co. v. Bekins Moving & Storage Co., 26 Ariz. App.
265 (1976), and to the general police power of the State of
Virginia.
Finally, Respondent argues (R. Br. at 97) that even where
evidence of substantial selling and work on the sidewalk is
absent, the Board has recognized that the property interest of
a supermarket tenant (located in a strip center) in its store-
front sidewalk is substantial, citing Red Food Stores, 296
NLRB 450 (1989), Sentry Markets, 296 NLRB 40 (1989),
and Mountain Country Food Store, 292 NLRB 967 (1989).
Those cases are readily distinguishable. In those cases, the
stores, in question, had explicit fee or leasehold property in-
terests in the sidewalks and parking lots themselves.
On the foregoing findings of fact, the briefs, and the entire
record, I state the following
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. The Union is a statutory labor organization.
3. Through its actions as set forth and found in sec. III,
above, Respondent has interfered with, restrained, and co-
erced employees in the exercise of their rights to organize
under Section 7 of the Act, thereby violating Section 8(a)(1)
of the Act.
4. The unfair labor practices, above, have affected and do
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent violated the Act as above-
described, I shall recommend that Respondent be required to
cease and desist from the violation found or similar viola-
tions, to permit access by the Union to all common areas,
the areas in which Respondent does not have an exclusory
property interest, found or similar violations, to permit access
by the Union to all common areas, the areas in which Re-
spondent does not have an exclusory property interest, in-
cluding the sidewalks in which Respondent does not have an
exclusory property interest, including the sidewalks in which
pedestrian traffic is permitted and where the leases forbid
Respondent obstruction (Tr. 383–385). Respondent shall not
interfere with the Union’s right to solicit and organize Re-
spondent’s employees in areas outside its store in which Re-
spondent has no exclusory interest, areas in which Respond-
ent’s no-solicitation rules can not lawfully apply to union
agents. This in no way limits or proscribes Respondent’s
right to lawfully control the activities of its employees on
worktime and in work areas. Any alleged unlawful union in-
terference, in common areas, with Respondent’s employees
at work must wait another day. Respondent will also be re-
quired to post a notice as is usual in these circumstances.
Following the remedial provisions in Polly Drummond
Thriftway, 292 NLRB 331 (1989), and Giant Food Stores,
supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 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.’’
ORDER
The Respondent, Food Lion, Inc., Fredricksburg, Virginia,
and its officers, agents, representatives, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of United Food and Com-
mercial Workers Union, Local 400, AFL–CIO (the Union),
from engaging in communication with Respondent’s employ-
ees on the sidewalks, roadways, and in the parking areas ad-
jacent thereto in the Breezewood and Chancellor Shopping
Centers, Fredericksburg, Virginia; or causing the police to
threaten such representatives with arrest because of their
presence on said sidewalks, roadways, and parking areas for
the purpose of communicating with Respondent’s employees
in such areas as long as the Union’s activity is conducted by
a reasonable number of persons and does not unduly interfere
with the normal use of the sidewalks and parking areas or
operation of businesses not associated with Respondent’s
stores.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its stores in the Breezewood and Chancellor
Shopping Centers, Fredereicksburg, Virginia, copies of the
attached notice marked ‘‘Appendix.’’18 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt 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, 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 Respondent has
taken to comply.