Galleria Joint Venture

National Labor Relations Board - Board Decisions

Jul 17, 1995

317 N.L.R.B. 1147 (N.L.R.B. 1995)

1147
317 NLRB No. 170
GALLERIA JOINT VENTURE
1 Additionally, the Board adopted, in the absence of exceptions,
the judge’s dismissal of allegations concerning the Respondent’s in-
terference with the handbilling on public property outside the
Galleria. Also, the Board modified the judge’s Order with regard to
the location of the handbilling permissible within the mall, pursuant
to an exception filed by the Union.
Galleria Joint Venture and International Ladies’
Garment Workers’ Union Ohio District Coun-
cil a/w International Ladies’ Garment Work-
ers’ Union, AFL–CIO
St. Clair Management Co. and International La-
dies’ Garment Workers’ Union Ohio District
Council a/w International Ladies’ Garment
Workers’ Union, AFL–CIO. Cases 8–CA–22469
and 8–CA–22571
July 17, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
In this proceeding we consider the impact of the Su-
preme Court’s opinion in Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992), on a shopping center owner’s right
to exclude from its private property nonemployee
union representatives distributing handbills informing
the consuming public of a strike because of alleged un-
fair labor practices committed by a tenant of the shop-
ping center. The specific issue before us is whether
Respondent Galleria Joint Venture—the shopping cen-
ter owner—and Respondent St. Clair Management
Co.—the shopping center operator—violated Section
8(a)(1) by prohibiting the conduct of this handbilling
in front of the Laurel store, which is one of the retail
stores in the Galleria, an enclosed shopping mall in
downtown Cleveland. Pursuant to our analysis below,
we conclude that the Respondents did not violate the
Act as alleged.
A. Procedural Background
On December 6, 1990, Administrative Law Judge
Bernard Ries issued the attached decision in this case,
in which he applied the framework for analysis set
forth in Jean Country, 291 NLRB 11 (1988), for issues
involving denial of nonemployee access to private
property, and found that the Respondents had violated
the Act. The Respondents filed exceptions to the
judge’s finding of a violation.
On July 22, 1991, the Board issued a Decision and
Order in this case, Galleria I, 303 NLRB 815, affirm-
ing the judge’s findings and conclusions.1 Thereafter,
the Respondents filed a petition for review of the
Board’s Decision and Order in the United States Court
of Appeals for the Sixth Circuit, and the Board filed
a cross-application for enforcement of its Order.
On January 27, 1992, the Supreme Court issued its
opinion in Lechmere, holding that the Board’s bal-
ancing test in Jean Country, as applied to the non-
employee union organizers in that case, was inconsist-
ent with controlling Supreme Court precedent. There-
after, the Board and the Respondents filed a joint mo-
tion with the court of appeals to withdraw without
prejudice the Respondents’ petition for review and the
Board’s cross-application for enforcement, and to re-
mand the case to the Board for further consideration
in light of Lechmere. The joint motion was granted,
and the Board notified the parties that they could sub-
mit statements of position to the Board on the issues
raised by the Board’s reconsideration of the case. Sub-
sequently, statements of position were filed by the
General Counsel, the Respondents, and the Union.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Upon reconsideration of Galleria I in light of
Lechmere, the statements of position of the parties, and
our recent decision in Leslie Homes, Inc., 316 NLRB
123 (1995), we have decided to vacate the Decision
and Order at 303 NLRB 815 and to dismiss the com-
plaint in its entirety.
B. Facts
The facts, fully set forth in the attached judge’s de-
cision, are essentially as follows. The Galleria in
downtown Cleveland has approximately 50 retail stores
set on two levels; there is also a ‘‘food court’’ provid-
ing several places to obtain refreshments. All four
sides of the mall are bordered by a red-brick sidewalk.
This sidewalk covers both the perimeter of Respondent
Galleria’s private property and part of the public prop-
erty adjoining the mall. There are five means of entry
to the mall from public property: The East 9th Street
door, considered the formal mall entrance; the St. Clair
Avenue entrance; the food court entrance; the entrance
to a parking lot located underneath the mall, which en-
trance appears to be a city block away from the mall;
and the entrance to a 40-story office building adjoining
the mall, through whose ground-floor foyer one may
enter the mall itself. From the underground parking lot,
one ascends to the two-level shopping area by means
of an escalator in the center of the mall. Those who
work or otherwise have business in the adjoining office
building may enter the mall from the building without
first stepping onto public property.
The Laurel store is on the Galleria’s ground level.
The record establishes that it is about 80 feet from the
East 9th Street entrance. Escada U.S.A., Inc. owns the
Laurel store and leases the space it occupies in the
mall. The store sells only those clothes imported by
Escada.
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As indicated above, the judge dismissed allegations that the Re-
spondents unlawfully ejected the handbillers from public property in
this instance, and the Board adopted the dismissal in the absence of
exceptions.
Escada has a warehouse distribution center in New
Jersey where, in November 1989, employees engaged
in a strike after unfair labor practices were assertedly
committed in reaction to an organizing drive by the
Union at that location. At about the time the strike
began, the Union attempted to handbill potential cus-
tomers of the Laurel store in the Galleria. The hand-
bills informed readers about the strike in the New Jer-
sey distribution center and of Escada’s alleged unlaw-
ful conduct, and asked that they not purchase Escada
merchandise. The two handbillers—who were not em-
ployees of either of the Respondents or of Escada—
stood in front of the store, on private property inside
the mall. They were immediately ejected by the Re-
spondents’ security employees. When the two subse-
quently attempted to distribute the handbills outside
the mall, the Respondents had them removed entirely
from the red-brick sidewalk, a portion of which con-
stituted public, rather than private, property.2
In early January 1990, the Union again tried to dis-
tribute its handbills in front of the Laurel store within
the mall, and again the two handbillers were ejected.
Subsequently, the Union and Respondent St. Clair
reached an informal accommodation, and the
handbilling, which was at all times peaceful and non-
disruptive, was permitted in front of the store from
about mid-January until mid-February. At that time the
Respondents’ permission was withdrawn. The Union
then handbilled at public-property locations near three
of the entrances to the mall, including the East 9th
Street entrance, until mid-March, when it decided to
terminate the activity.
C. The Supreme Court’s Opinion in Lechmere
In Lechmere, Inc. v. NLRB, supra, the Supreme
Court held that Jean Country impermissibly recast as
a ‘‘multi-factor balancing test’’ the general rule of
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956),
permitting an employer to prohibit nonemployee dis-
tribution of union organizational literature on its prop-
erty. 502 U.S. at 538. Babcock’s holding, as affirmed
in Lechmere, is that Section 7 does not allow non-
employee union organizers to come onto private prop-
erty except in the rare case where ‘‘the inaccessibility
of employees makes ineffective the reasonable at-
tempts by nonemployees to communicate with them
through the usual channels.’’ Id. at 537. Thus, ‘‘[i]t is
only where such access is infeasible that it becomes
necessary and proper to take the accommodation in-
quiry to a second level, balancing the employees’ and
employers’ rights.’’ Id. at 538 (emphasis in original).
D. The Parties’ Contentions
The General Counsel concedes that the Supreme
Court’s standard in Lechmere, which was applied to
nonemployee union organizers attempting to commu-
nicate with employees on private property, is applica-
ble in the instant case, in which nonemployee union
representatives sought to distribute handbills to con-
sumers informing them of the strike and Escada’s al-
leged unfair labor practices. The General Counsel fur-
ther concedes that under the Lechmere standard the
complaint must be dismissed because the heavy burden
to demonstrate the absence of feasible alternatives to
trespass has not been satisfied here. Thus, the General
Counsel observes that picketing on public property was
available for the Union to communicate its message,
and there is no showing that it was not feasible. In ad-
dition, he notes that the handbilling in which the
Union engaged on the public property at the perimeter
of the Galleria was not shown to be either unsafe or
an unreasonable alternative under Lechmere. With re-
gard to the potential enmeshing of neutrals, a factor re-
lied on in granting access in Galleria I, the General
Counsel points out that the handbills used in this case
clearly identified the Laurel store as the focus of the
Union’s boycott, making it unlikely that the public
would perceive that other stores were involved in the
dispute. He also suggests that, in any event, it is more
appropriate for the neutrals to raise this issue with the
property owner than for a union to take it into consid-
eration in assessing the feasibility of alternatives to
trespass.
The Respondents argue that the exceptional situation
permitting access, as set forth in Lechmere, may come
about only where nonemployee union representatives
are attempting to communicate with employees on pri-
vate property, and not customers, citing the 9th Cir-
cuit’s post-Lechmere view in John Ascuaga’s Nugget,
Inc. v. NLRB, 968 F.2d 991 (9th Cir. 1992). Accord-
ingly, the Respondents urge that the Board dismiss the
complaint given the identity of the Union’s intended
audience here. Alternatively, they contend that even if
the Lechmere exception were available to the Union on
a proper showing of absence of alternative means of
communication, this burden has not been met. Thus,
the Respondents argue that the Union was able to dis-
tribute its handbills on the public property near the en-
trances to the Galleria, and it might also have commu-
nicated its message through billboards, radio, or news-
papers.
The Union contends that the application of the Su-
preme Court’s decision in Lechmere is limited to sce-
narios in which nonemployee union representatives are
seeking to organize employees who work on private
property. In private-property access cases in which
other Section 7 rights are being exercised—such as
here, where the union handbillers acted on behalf of
1149GALLERIA JOINT VENTURE
3 Hudgens v. NLRB, 424 U.S. 507, 522 (1976); Sears, Roebuck &
Co. v. Carpenters San Diego County District Council, 436 U.S. 180,
206 (1978).
4 Accordingly, we do not rely on the judge’s assessment of the rel-
ative strengths of the Sec. 7 and property rights asserted by the par-
ties.
5 As in Leslie we assume, without deciding, that the Lechmere
analysis affords the possibility of an exception permitting access to
private property for the Sec. 7 activity here, if it can be proved that
the Laurel store’s customers are not reasonably accessible by
nontrespassory methods. Cf. John Ascuaga’s Nugget v. NLRB, supra,
where the Ninth Circuit found that the inaccessibility exception to
the rule that an employer need not accommodate nonemployee orga-
nizers does not apply to attempts to communicate with the general
public.
6 No party has requested that this proceeding be remanded, in light
of the potential impact of Lechmere, to reopen the record for addi-
tional evidence concerning alternative means.
7 There is no question here that the Laurel store, owned and oper-
ated by Escada, is a ‘‘primary’’ rather than a ‘‘neutral’’ or ‘‘second-
ary’’ employer, and thus no risk that such picketing, properly di-
rected against Escada and the Laurel store, would be prohibited by
Sec. 8(b)(4)(B). See Leslie, fn. 21.
striking Escada employees—it argues that the Board’s
Jean Country standard continues to apply. Alter-
natively, the Union argues that even if the Lechmere
standard is applied here, reasonable alternatives to tres-
pass were not available. The Union contends that
under either analysis the Board’s Order in Galleria I
should be affirmed.
E. Discussion
In Leslie, supra, the Board considered the impact of
Lechmere on nonemployee area standards activity.
After reviewing Lechmere and related Court prece-
dent,3 the Board concluded that the Court intended the
Babcock accommodation analysis to apply in non-
organizational settings. Accordingly, the general rule is
that an employer may prohibit nonemployees from
gaining access to its private property to engage in area
standards activities. No balancing of employee rights
and property rights is appropriate unless the union can
first demonstrate that it lacks reasonable access to the
employer’s customers outside the private property
where the employer is located. For the reasons fully
set forth in Leslie, we find that the Babcock accommo-
dation analysis, and the general rule articulated above,
also apply to the Section 7 activity in the instant
case—nonemployee distribution of handbills to the
consuming public, protesting alleged unfair labor prac-
tices occurring at another location and informing the
public of a strike in that regard.4
We turn then to the question of whether the General
Counsel has proven that the Union had no reasonable
alternative means of communicating with the Laurel
store’s customers.5 In Lechmere, the Court stated that
the Babcock exception permitting access to private
property by nonemployee organizers applied only in
rare situations in which a union confronts ‘‘unique ob-
stacles’’ to nontrespassory communications, as when
the location of a plant and the living quarters of em-
ployees ‘‘isolated [them] from the ordinary flow of in-
formation that characterizes our society.’’ 502 U.S. at
540. The Court emphasized that the burden of proving
the exception is a heavy one, which cannot be satisfied
‘‘by mere conjecture or the expression of doubts con-
cerning the effectiveness of nontrespassory means of
communication.’’ Id.
Overall, the evidence on this record—compiled pur-
suant to the Jean Country standard and prior to
Lechmere—does not satisfy the burden explained in
Lechmere and applied in Leslie.6 Merely as a matter
of observation, we agree with the General Counsel that
no evidence was submitted to show that consumer
picketing on the public-property sidewalk at the perim-
eter of the Galleria—in lieu of or in addition to public
property handbilling—would have been an unreason-
able alternative to the Union’s trespassory activity in
front of the Laurel store. See Leslie, slip op. at 8.7
Similarly, we observe that no evidence was submitted
to establish that massmedia communication of the
Union’s message was not a reasonable alternative to
trespass within the Court’s view of the reasonableness
concept in Lechmere. See Oakland Mall, 316 NLRB
1160, 1163 (1995), where the Board based its dismis-
sal of 8(a)(1) allegations in a trespassory access case
on the failure to show that massmedia communication
was not a reasonable alternative to trespass for second-
ary consumer boycott handbilling.
More particularly, we conclude that the General
Counsel has failed to provide adequate evidentiary
support for the essential theory of a violation in this
case. The General Counsel originally contended, and
the Board agreed in Galleria I, that the Union was un-
able to communicate an effective message from the
public-property sidewalk outside the Galleria because
of the nature and configuration of the mall itself. Thus,
it was noted that the Laurel store was one of at least
50 commercial enterprises in a bilevel mall, that the
mall had five different entrances from public property,
and most significantly, that consumers could enter the
mall through interior, private-property entrances from
the adjoining 40-story office building and from the un-
derground parking lot without first crossing public
property. Primarily in light of these physical factors, it
was found under the nowrejected Jean Country stand-
ard that limiting the Union’s conveyance of its mes-
sage to the public-property sidewalk would so dilute
and diminish the Union’s ability to communicate with
potential patrons of the Laurel store as to make it an
unreasonable alternative to trespass. Galleria I, 303
NLRB 815 fn. 1.
While it may be open to the General Counsel to sat-
isfy the inaccessibility exception of Lechmere by
showing inability to reach mall patrons owing to par-
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 We see no inconsistency between our finding in Galleria I and
our finding here. In Galleria I, the Board considered reasonable al-
ternatives as one part of its Jean Country test. In light of Lechmere,
we now consider that factor as a critical one, and we place a heavy
burden on the union to show the absence of reasonable alternatives.
The burden has not been met.
9 This entrance, on East 9th Street, was located 80 feet from the
Laurel store. The Union had done some of its handbilling on the
public property next to this entrance.
As noted above, the judge dismissed allegations that the Respond-
ents interfered with handbilling on public property, and no excep-
tions were filed in this respect. This dismissal was based on the fact
that the Respondents, on isolated occasions, mistook the public prop-
erty for private property. We note, as did the judge, that the Union
and the Respondents resolved the confusion by identifying where the
public-property segment of the redbrick sidewalk outside the Galleria
was located, and that the Union subsequently handbilled from this
public property.
10 In Galleria I, the judge, with the Board’s approval, relied in part
on the factor of ‘‘enmeshing neutrals’’ in finding that the Union’s
handbilling from the public-property sidewalk was an unreasonable
alternative. In our present disposition of this case, we note that the
Board in Jean Country pointed out that the enmeshment of neutrals
was not a basis, per se, for allowing trespassory access. 291 NLRB
11 at fns. 8 and 19. Certainly this view is at least as valid post-
Lechmere as it was before. Accordingly, in view of the failure to
otherwise satisfy the alternative-means burden, we need not further
address the ‘‘enmeshment’’ issue here. Also see Loehmann’s Plaza,
316 NLRB at 1111 (1995), where the Board found that area stand-
ards picketing, properly conducted, would not have enmeshed neutral
employers.
1 The charges in these cases were filed, respectively, on February
20, 1990, and March 21, 1990. The complaint issued on April 30,
1990.
2 Certain errors in the transcript are noted and corrected.
ticular details of a mall’s configuration, it has not car-
ried that burden here.8 Among other things, the Gen-
eral Counsel did not produce evidence showing rough-
ly what proportion of the total number of mall patrons
enter through the formal entrance adjoining public
property,9 as opposed to those entering through pas-
sageways from the privately owned office building and
covered parking lot. In sum, there is inadequate record
evidence that alternative means which would not re-
quire trespass on private property were absent. Accord-
ingly, we dismiss the complaint on the insufficiency of
the evidence. See, e.g., Loews L’Enfant Plaza Hotel,
316 NLRB 1111 (1995).10
ORDER
The Board’s Order at 303 NLRB 815 is vacated,
and the complaint is dismissed.
CHAIRMAN GOULD, concurring.
I join in the dismissal of the complaint in this case.
See my additional comments set forth in my concur-
ring opinion in Leslie Homes, 316 NLRB 123 (1995).
Nancy Recko, Esq., for the General Counsel.
T. Merritt Bumpass Jr., Esq. and Carl H. Gluek, Esq.
(Thompson, Hine & Flory), of Cleveland, Ohio, for the
Respondents.
Frank Consolo, Esq. (Schwarzwald, Robiner & Rock), of
Cleveland, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge. This matter
was tried in Cleveland, Ohio, on August 20–22, 1990.1 The
complaint essentially raises the issue of the extent to which,
in the particular circumstances, property rights must yield to
the exercise of rights protected by Section 7 of the National
Labor Relations Act. Respondents deny all material allega-
tions of the complaint that assert violations of the Act.
Briefs were received from all parties on or about Novem-
ber 2, 1990 (all dates refer to 1990 unless otherwise indi-
cated). I have considered the transcript of proceedings,2 the
exhibits, and the briefs, and I have reached the following
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATIONS
I. THE BASIC FACTS
Respondent Galleria Joint Venture (GJV) owns an en-
closed shopping mall in downtown Cleveland, Ohio, which
is operated by Respondent St. Clair Management Company.
The Galleria mall apparently contains about 50 stores on two
floors, a refreshments area on the first floor, and some open
spaces which are occasionally used for exhibits. It is open
7 days a week.
The mall is a modern day analogue of the old-fashioned
downtown shopping area. It is surrounded on three sides by
streets and sidewalks commonly used by vehicular and pe-
destrian traffic and on the fourth by a walkway which is
owned by GJV and bounded by three other buildings. Each
of the four sides of the mall is bordered by a red brick side-
walk which, according to the testimony, covers both the
boundaries of GJV’s property and part of the public property
which adjoins it.
The mall has several entrances, the most formal being the
one on the west side facing East 9th Street. It may also be
entered from the south on the St. Clair Avenue side, from
the east through the lobby of an adjoining 40-story office
building owned by GJV, through the food court entrance on
the northwest, and from a parking garage beneath the ground
floor.
A manual for security guards issued by Respondents states
that the ‘‘placing or distribution of written materials and the
solicitation of customers or employees inside the mall and
common areas is prohibited, no matter what its purpose or
sponsorship.’’ A similar rule applies to distribution and solic-
itation in the mall ‘‘parking lots or roadways.’’ While the
manual also states that express rules to this effect ‘‘are to be
posted at all entrances,’’ such posting has not been accom-
plished. Commercial solicitors have consistently been ordered
to leave the mall.
The premises in the mall have seldom been used for other
than business-related purposes. Occasional art and auto-
mobile exhibitions are permitted, but no people are there to
promote the exhibits. Galleria Marketing Manager Elizabeth
Umstead testified that she has, without deviation, refused to
1151GALLERIA JOINT VENTURE
3 Provision is made that ‘‘Tenant expressly agrees that it will not
ring a bell in connection with operating the collection kettle.’’ The
spirit of Christmas grows dimmer.
4 This is, clearly, hearsay, and it was objected to. I overruled the
objection. I think that in a consumer boycott case such as this one,
it is sufficient to prove a good-faith belief that protected activity is
occurring at the distant location. In any event, the record shows a
stipulation by the parties that Local 138 of the ILGWU commenced
a strike in November 1989 against the Escada New Jersey operation
for alleged commission of unfair labor practices during an organiz-
ing campaign.
grant permission to tenants who wish to distribute pro-
motional leaflets on the property. The only actual solicitation
that has been allowed was for one emergency relief situation
and by the Salvation Army during the Christmas season.
Even for the latter purpose, Respondents have created—on
paper, at least—a landlord-tenant relationship, by executing
a ‘‘lease’’ under which the the Salvation Army is allowed to
operate a ‘‘manned collection kettle’’ in a small space for a
month,3 in exchange for the Army’s agreement to provide
appropriate entertainment, such as ‘‘carolers and mini
bands.’’ At some recent time, a demonstration involving a
professor at a local university assembled outside the mall,
but on its property, for about an hour, and no effort was
made to remove the demonstrators.
The underlying labor dispute here concerns a firm called
Escada U.S.A., Inc., which imports clothes from Europe to
its distribution center in New Jersey and sells them in this
country under the label of ‘‘Escada’’ or ‘‘Laurel’’ or (appar-
ently) ‘‘Crisca,’’ either from outlets called ‘‘Escada’’ or
‘‘Laurel’’ or through sale to other stores (several of which
are in the Cleveland area). In this case, there is a store called
‘‘Laurel’’ in the Galleria which is owned by Escada and
which markets only Escada and Laurel brand clothes.
Albert Gargiulo, the Ohio state director of the ILGWU, re-
ceived a call in November 1989 from the New York office
of the ILGWU, in which he was told that the employees of
the New Jersey Escada facility were on strike in protest
against the discharge of an employee-organizer.4 Gargiulo
was asked to handbill the Laurel store at the Galleria; he
agreed to do so, and soon received some leaflets from New
York, which he promptly had duplicated.
Toward the end of November, Gargiulo and Barbara Janis,
another union employee, entered the Galleria and stood a few
feet outside the 26-foot front of the Laurel store and, in a
peaceful manner, handed out to prospective Laurel customers
two leaflets signed by ‘‘The Escada Workers’ Strike Com-
mittee, Local 138, International Ladies’ Garment Workers’
Union.’’ One leaflet read:
BUYERS BEWARE:
ESCADA ON STRIKE
On November 8, the workers at Escada (USA), Inc.’s
New Jersey warehouse—the company’s only distribu-
tion center in the United States—walked off their jobs
to protest the management’s ILLEGAL FIRING of a pro-
union employee and its subsequent attempts to intimi-
date union supporters. The workers’ action has success-
fully shut down Escada’s U.S. importing operation.
DON’T PATRONIZE A COMPANY WHICH CANNOT DE-
LIVER ITS MERCHANDISE!
DON’T BUY ESCADA, LAUREL, AND CRISCA!
The second leaflet also appealed to customers not to pur-
chase garments bearing the Escada, Laurel, and Crisca labels;
assailed the parsimony of Escada, Inc.; and charged that
when the employees began to organize, Escada ‘‘began to
fire us.’’ Galleria customers were asked not to ‘‘support a
lawbreaker.’’
A few minutes after arriving, the two union agents were
told by security guards to leave. They took their handbills
outside the Ninth Street entrance, but were again told to
leave the red brick path. The record indicates that not all that
path in fact underlies GJV property; some of it is public. Ap-
parently because the placement indicated by the security
guard made distribution of the handbills difficult, Gargiulo
and Janis left. They made another attempt in November,
handing out leaflets outside the mall, but were told to leave
and did so. The record is incomplete on the details of this
sortie.
On January 11, Gargiulo and Janis made another attempt,
this time back inside the mall and in front of the Laurel
store. When they were told to leave by the assistant security
manager, they did so. Janis and another union representative
stationed themselves at the two ends of East Ninth Street, off
the red brick, but soon left.
On January 22, the Union’s attorney wrote to Respondent
St. Clair, threatening to file a charge with the Board unless
agreement could be reached allowing the handbillers to lo-
cate themselves outside the Laurel store in the mall. St.
Clair’s response was affirmative, and the Union engaged
handbillers to stand, two at a time, outside the Laurel door.
The handbilling began on January 24 and ended on February
19, after St. Clair announced that it had changed its mind.
During this time, the handbilling had been orderly and with-
out incident. The Union promptly filed a charge. After their
removal, handbillers were stationed at the entrances at Ninth
and Twelfth Street and St. Clair Avenue until March 17,
when the Union decided that it could not get its message
across from those locations.
II. FINDINGS AND CONCLUSIONS
The complaint alleges that Respondents violated Section
8(a)(1) by refusing to allow the Union to handbill both inside
the Galleria and on public sidewalks outside.
The principles controlling this decision were announced in
Jean Country, 291 NLRB 11 (1988), in which the Board
modified to some extent its existing method of analyzing the
right of strangers to enter on an employer’s property to en-
gage in activity protected by Section 7 of the Act. In a effort
to clarify what has since been called ‘‘this murky corner of
the law,’’ Lechmere, Inc. v. NLRB, 914 F.2d 313, 319 (1st
Cir. 1990), the Jean Country Board decided that the proper
test would require balancing the strength of the Section 7
claim against the strength of the property right involved, tak-
ing into account in each case ‘‘the availability of reasonable
alternative means’’ for the exercise of the Section 7 right
short of trespass.
As the Board stated in Jean Country, ‘‘[T]here is no sim-
ple formula that will immediately determine the result in
every case.’’ It has, however, attempted to provide guidance
by listing some factors which may be relevant to the assess-
ment of the weight of the various rights. As to property
rights, it suggests considering ‘‘the use to which the property
is put, the restrictions, if any, that are imposed on public ac-
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Little & Co., 296 NLRB 691 (1989), which found economic
strike picketing to be protected even though it was performed in the
lobby of the 14th floor of a building in which an office of the pri-
mary disputant was located.
6 The present distribution of handbills is not properly classified as
‘‘solicitation’’ under the clause in the security manual, since there
the prohibited conduct is limited to importuning ‘‘with respect to
any request or demand for payment of money or subscription to any
form of communication.’’ R. Exh. 6, p. 2.
7 Accordingly, I rejected certain studies which Galleria Marketing
Manager Umstead purportedly had reviewed and which are said to
show that ‘‘solicitation has a negative impact on shoppers.’’ The
possibility that handbilling ‘‘hurts sales,’’ as counsel argued, is of
no more consequence than the possibility that lawful picketing might
adversely affect business. Moreover, handbilling limited to the Lau-
rel store is likely to minimize any negative impact on other stores
in the mall.
8 In its affirmance of the latter case, Sentry Markets v. NLRB, 914
F.2d 113 (7th Cir. 1990), the court erred in stating that in Montgom-
ery Ward & Co., 265 NLRB 60 (1982), ‘‘the Board held struck
product consumer handbilling to be of the highest ‘nature and
strength.’’’ See ibid., Board decision, final paragraph.
9 On brief, Respondents advance four special contentions to dilute
the Sec. 7 right involved here; I reject them all.
The first argument—that the ‘‘Escada dispute is remote to the
Galleria’’—is, economically, untrue. Escada leases space in the
Galleria and sells its imported goods there under the store name
‘‘Laurel.’’ The Laurel store is thus closely involved in the dispute.
The second argument is that the leaflets deserve no protection be-
cause they contain untruths. The first ‘‘untruth’’ Respondents assert
is that one handbill states, ‘‘We Escada workers are on strike . . .,’’
while in fact none of the handbillers were Escada employees.
Whether such an untruth would be important is beside the point
here, since the handbill is not, in fact, misleading—the handbillers
did not purport to be Escada employees, but rather their agents; the
handbill is signed by ‘‘The Escada Workers’ Strike Committee,’’
cess to the property, and the property’s relative size and
openness.’’ Jean Country, supra.
Depending on the relationship between the property and
the person asserting a protectable right in it, a property
‘‘right’’ really consists of varying bundles of rights. The
owner of property generally has the power to alienate the
property, to use it for his own purposes, and to exclude oth-
ers from it. In all of these areas, however, the law impinges
on each strand of right in particular ways. The owner cannot
refuse to sell or rent his property for invidious reasons which
the Government has deemed to be unacceptable, nor, if the
site has a public character, can he choose to exclude certain
legally protected classes from the common public enjoyment
of it. The zoning board or the fine arts commission may bar
the owner from building a restaurant on it, and the police
may not allow him to operate a disorderly house.
Property ‘‘rights,’’ in short, are subject to constraints im-
posed by law. Those constraints may be the more easily im-
posed when, as was said of the open-air mall in Jean Coun-
try, supra, it ‘‘has, and is intended to have, certain quasi-pub-
lic characteristics.’’ Such traits, the Board stated, ‘‘tend to
lessen the private nature of the property, because it is appar-
ent that the public is extended a broad invitation to come on
the property, and not necessarily with the specific purpose of
purchasing a particular product or service.’’ This is, of
course, no less true of an enclosed mall.5
In Jean Country, the Board noted that, although the mall
manager had testimonially referred to no-solicitation rules, no
such rules had been placed in evidence. The Board said that
it assumed that owners ‘‘have rights in some degree to con-
trol access to the property during business hours and to con-
trol the public’s conduct on the property,’’ but it did not pur-
sue the matter further because ‘‘no pertinent regulations have
been put before us.’’ In the instant case, as noted, the secu-
rity manual bars the ‘‘distribution of written materials,’’6 al-
though a tenants’ manual does not contain similar language
(the closest wording being a prohibition of ‘‘canvassing, so-
liciting, or peddling’’). While the rules in the security manual
are supposed to be posted at all entrances, they have not
been, as earlier noted.
It is somewhat difficult to understand how the ‘‘strength’’
of a property right is measured by judging the degree to
which the property holder attempts to regulate use of the
property. A tenant’s property right would seem to have no
more and no less ‘‘strength’’ by virtue of the tenant’s deci-
sion to keep the public away or invite it in. The Board, how-
ever, has given substantial weight to the use to which the
property is put, as seen above; perhaps it means, by referring
to the ‘‘strength’’ of a property right, the intensity or neces-
sity of the property holder’s desire to exercise its power to
exclude or invite strangers.
What weight the Board would assign to an unposted rule
prohibiting the distribution of written materials is not clear.
The primary purpose of such a rule would seem to be the
maintenance of an unlittered shopping area, and the evidence
shows that the handbillers in this case were instructed to pick
up any leaflets thrown to the ground. Another purpose might
be to avoid annoyance to customers, but, as Jean Country
and its related cases show, prevention of such annoyance
simply cannot, given the proper circumstances, be raised as
a defense.7
In Jean Country, supra, the Board found (and it could
hardly conclude otherwise) that ‘‘strict maintenance of the
privacy of the mall property during business hours is not an
overriding concern and in fact is not generally desirable, be-
cause the presence of the public in large numbers is instrinsic
to the commercial goals of the lessees and Respondent
Brooks.’’ It went on to decide that, for this reason, the pri-
vate property right asserted against the picketing there is
‘‘quite weak in the circumstances.’’ Applying this rationale
and comparing the circumstances, it is not easy to detect a
distinction between picketing in front of a store in an open-
air mall and handbilling in front of a store in an enclosed
mall.
The ‘‘strength’’ of the right implicated in the handbilling
derives from its placement on the ‘‘spectrum’’ of Section 7
rights. The Section 7 activity engaged in here could be con-
sidered to ‘‘protest unfair labor practices,’’ which, in Jean
Country, the Board denominated as a ‘‘central’’ right, on a
par with ‘‘the right of employees to organize.’’ Since the
handbilling was directed against an outlet of Escada, the pri-
mary disputant, the Section 7 right being exercised would ap-
pear to be of the highest order. Even where handbilling is
simply called ‘‘struck product consumer handbilling,’’ the
Board has twice recently declared such activity to be the as-
sertion of a ‘‘relatively strong’’ Section 7 right. Mountain
Country Food Store, 292 NLRB 967 (1989); Sentry Markets,
296 NLRB 40 (1989).8
Given this precedent, it would follow that the scales tip in
favor of the Section 7 right.9
1153GALLERIA JOINT VENTURE
which is obviously the group that ‘‘We Escada workers . . .’’ refers
to.
Third, Respondents point to the fact that the other handbill states
that the strike ‘‘has successfully shut down Escada’s U.S. importing
operation.’’ But the fact on which Respondents rely for this argu-
ment—a stipulation that the strike ‘‘did not completely shut down
Escada’s import operations’’—is a far cry from definitively giving
the lie to the handbill claim. In any event, the substantive value of
the contention seems to be of little moment.
Finally, Respondents, citing Hardee’s Food Systems, 294 NLRB
642, (1989), enfd. sub nom. Laborers’ Local 204 v. NLRB, 904 F.2d
715 (D.C. Cir. 1990), argue that there were many other sites at
which the Union could have handbilled. But Hardee’s is factually
different because there the union’s effort was to handbill the loca-
tions of secondary employers substantial distances away from the
primary situs of the primary employer. Moreover, the record shows
no other locations at which Escada and Laurel brands are sold exclu-
sively at a store leased by Escada; the evidence refers only to a few
Ohio stores which carry the Escada line, and gives no information
as to the physical characteristics of these sites.
10 At the cited page, fn. 18, the Board stated that it would be ‘‘an
exceptional case’’ where use of the mass media should be consid-
ered a reasonable alternative.
11 A unique, and telling, factor here is that the Respondents author-
ized the Union to handbill at the Laurel store entrance for 25 days
before ordering the handbilling to stop. No reason was given at the
hearing to explain the change of heart other than testimony by an
attorney for GJV that he was advised by his client that the
handbilling ‘‘did interfere with the operations of the mall.’’ The
record indicates that the handbilling had caused no incident or prob-
lem serious enough to be memorialized in an incident report or other
record.
I do not find the other occasions noted by the General Counsel
to be substantial enough to affect the fundamental character of the
property right here or to warrant a charge of disparate treatment.
While the Salvation Army does engage in ‘‘solicitation,’’ it also
likely does provide, in Respondents’ view, a positive contribution to
the Galleria’s image, holiday ambience, and, ultimately, financial re-
turn, much like Christmas decorations. See Sentry Markets, supra.
The same may be said of the permission to allow solicitation for
South Carolina hurricane victims; it should be remembered that Mar-
keting Manager Umstead testified, without contradiction, that she has
consistently refused to allow Respondents’ own tenants to pass out
flyers. It was undoubtedly the wiser course of action to stand by in
silence while the college-professor demonstration lived out its short
life (Respondents contend that the testimony shows that the dem-
onstration occurred off the mall property; I read the record other-
wise). Finally, the art and auto displays did not involve the presence
of strangers, and thus differed in an important respect from regular
solicitation or handbilling.
Left for consideration is the question of whether reason-
able alternative means were available to the Union to engage
in its protected activity. Where the intended audience was the
potential customers of the Laurel store, ‘‘[t]he single alter-
native worthy of extended consideration in these cir-
cumstances is the possibility of the Union’s communicating
its message from public property at the entrances to the
mall.’’ Jean Country, supra at 18.10 In concluding that such
communication was not a reasonable alternative, the Board
considered the dilution of the Union’s message caused by the
‘‘sheer physical distance’’ from the mall entrances to the
Jean Country store; the large number of other stores; and the
crowds of people coming onto the property at eight different
entrances.
Although the present facts are not as large in scale, a simi-
lar analysis produces a similar conclusion. While the dis-
tances from the mall entrances to the Laurel store are not as
great as those in Jean Country, the same basic problems
present themselves. Requiring the Union to convey its mes-
sage from public property would entail the use of at least
five handbillers at the different entrances. Shoppers who are
proffered the handbills outside the mall are probably more
likely to turn away from or to discard or disregard the mes-
sage, especially in inclement weather, as compared to receiv-
ing them in the dry and climate—controlled arcade. ‘‘An-
other consideration if the Union had to communicate its mes-
sages at the mall’s entrances, given the circumstances of this
case, is the chance that the Union might unintentionally en-
mesh neutral stores in its labor dispute with [Escada].’’ Ibid.
Moreover, as General Counsel points out, restricting the
handbilling would possibly prevent any communication of
the message to the many employees who work in the adja-
cent 40-story office building and who need not leave the
property to enter the Galleria, and to those customers who
enter through the parking garage.
As in Jean Country, a requirement of handbilling all po-
tential customers in order to reach the desired few, and the
possibility that the message may not as readily reach the de-
sired few by public property handbilling as by store entrance
handouts, together with the sensible desideratum of keeping
the dispute as narrowly confined as possible, point to the
conclusion that propagandizing from public property is not a
reasonably effective alternative means of communication.
Here, like Jean Country, we are considering a venue de-
voted to public use, a characteristic which the board has re-
ferred to as rendering the property right ‘‘quite weak’’ and
which considerably enervates claims based on privacy and
disruption;11 the exercise of a Section 7 right which the
Board has labelled either ‘‘central’’ or ‘‘relatively strong’’;
and a case fairly made that other means of communication
are not nearly as effective as direct-store handbilling. Having
weighed these results, there seems to be no alternative under
the Jean Country principles and precedents to a conclusion
that Respondents’ refusal to allow the Union to continue
handbilling at the Laurel store violated Section 8(a)(1) of the
Act.
The remainder of the complaint refers to isolated instances
in which the handbillers, after being ordered out of the
Galleria, were allegedly required by security guards to refrain
from handbilling on what the guards assumed to be private
property. The guards, apparently in the mistaken belief that
the entire brick path surrounding the Galleria was private
property, assertedly required the union agents to remove
themselves from what was actually public property.
While the good faith of the guards does not constitute a
defense, it seems to me that the core of this case is the issue
of handbilling inside the mall, and not whether the guards
erred in knowing where the private/public demonstration line
should be drawn. There seems to be no doubt that Respond-
ent understands its obligation to refrain from interference
with the Union’s conduct on public property. I note that, on
February 20, after the handbillers were ejected from the mall
and took up positions outside, the Union and management,
using a property map, calculated where the Galleria border
ended and the public access area started outside of the main
entrance. That particular confusion has now been clarified. In
these circumstances, since the question as to whether the
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Union was entitled to hand out pamphlets inside the mall has
also (at this stage, anyhow) been resolved, no statutory pur-
pose would be furthered by inquiring into whether Respond-
ents’ agents made isolated errors in distinguishing between
what constituted public and private property outside the
shopping center.
CONCLUSIONS OF LAW
1. Each of the Respondents is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By requiring that union handbillers cease from engag-
ing, in front of the Laurel store in the Galleria, in activity
protected under Section 7 of the Act, Respondents violated
Section 8(a)(1) of the Act.
THE REMEDY
As a remedy, I recommend that Respondents be ordered
to cease and desist from engaging in the unfair labor practice
found and to take certain affirmative action which will effec-
tuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondents, Galleria Joint Venture and St. Clair
Management Co., Cleveland, Ohio, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of the Union from distribut-
ing handbills within the Galleria mall in circumstances in
which Section 7 of the Act protects such activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the Galleria mall, Cleveland, Ohio, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of the no-
tice, on forms provided by the Regional Director for Region
8, after being signed by the Respondents’ authorized rep-
resentatives, shall be posted by them immediately upon 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
Respondents 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 receipt of this Order what steps the Respondents have
taken to comply.