Jean Country, And Brook Shopping Centers, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1988

291 N.L.R.B. 11 (N.L.R.B. 1988)

JEAN COUNTRY
Jean Country , and Brook Shopping Centers, Inc, as
Nominee for Dollar Land Syndicate and Local
305, Retail & Wholesale Employees Union,
AFL-CIO Case 2-CA-19952
September 27 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN CRACRAFT AND HIGGINS
On July 17, 1984 Administrative Law Judge
Steven Davis issued the attached decision The
General Counsel the Charging Party, and Re
spondent Jean Country filed exceptions and sup
porting briefs
The NLRB has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order
I INTRODUCTION AND APPLICABLE PRINCIPLES
This case involves picketing by nonemployee
union agents carrying signs to inform the public
that the employees of a particular store in a large
shopping mall were not represented by a union
The issue is the location of the picketing-whether
those who control the mall property around the
store could lawfully prevent the pickets from com
municating their message to the public near the
store entrance
The underlying question-which employers, em
ployees unions the Board, and the courts have
grappled with for decades in varying factual pat
terns-is how to accommodate the exercise of
rights guaranteed under Section 7 of the Act with
a property owner s right to protect his property
against intrusions by those whom he has not invit
ed to enter In Fairmont Hotel 282 NLRB 139
(1986) the Board announced a new test under
which the strength of the claim of Section 7 rights
would be balanced against the strength of the prop
erty rights involved with the stronger right pre
vailing Id at 142 If the Section 7 right was
deemed stronger access could not be prohibited If
the property right was deemed stronger denial of
access would be found lawful If the rights were
deemed relatively equal in strength, then the ques
tion whether those seeking to exercise Section 7
rights had reasonable alternative means of exercis
ing those rights (i e, alternatives not involving tres
pass on the property involved) would become de
terminative Ibid
In cases decided subsequent to Fairmont, it
became apparent that individual Board members
differed over interpretation and application of the
I1
Fairmont test 1 On consideration of our experience
in applying the Fairmont test and on reexamination
of the two principal Supreme Court cases that must
guide our decisions on this issue we believe that
further clarification of the Board s approach in
access cases is necessary In particular for reasons
fully discussed below we have reevaluated the
factor of reasonable alternative means in our over
all assessment of competing claims of Section 7 and
property rights We specifically conclude that the
availability of reasonable alternative means is a
factor that must be considered in every access
case 2
In NLRB v Babcock & Wilcox Co 351 U S 105
(1956), a case involving an industrial plant employ
er s refusal to allow nonemployee union organizers
access to its private parking lot to distribute organs
zational literature to employees, the Court declared
that in cases in which the exercise of Section 7
rights comes into conflict with property rights the
Board must seek to accommodate the two The
Court set out the following principles to guide that
accommodation
Accommodation between the two must be
obtained with as little destruction of one as is
consistent with the maintenance of the other
[W]hen the inaccessibility of employees
makes ineffective the reasonable attempts by
nonemployees to communicate with them
through the usual channels the right to ex
clude from property has been required to yield
to the extent needed to permit communication
of information on the right to organize
' E g Brownings Foodland 284 NLRB 939 at in 4 (1987) Sisters
Chicken & Biscuits X85 NLRB 796 at in 5 (1987) A plurality of the
original three member majority in Fairmont agreed that under Fairmont if
the property claim asserted outweighed the Sec 7 claim asserted or vice
versa when analyzed apart from the factor of reasonable alternative
means of communication then it was not necessary to evaluate alterna
tive means Member Johansen the other member of the Fairmont mason
ty has consistently viewed the factor of alternative means of communica
tion as one that is always of some significance in assessing the weight of
the Sec 7 claim Chairman Stephens expressed his disagreement with the
plurality view in his separate concurring opinion in Fairmont
2 To the extent that Fairmont did express the plurality view that con
sideration of the alternative means factor must sometimes be excluded
from our determination whether and to what extent property rights
should yield to the exercise of Sec 7 rights it is overruled
Furthermore notwithstanding the view of individual Board members
that the Fairmont test barred consideration of alternative means in some
circumstances the great number of cases decided under Fairmont in
volved a finding by at least a majority of the Board panel that one right
asserted did not clearly outweigh the other It was therefore necessary to
examine the availability of reasonable alternative means in those cases
See Group Health Dental Facility 288 NLRB 200 (1988) G W Gladders
Towing Co 287 NLRB 186 (1987) SCNO Barge Lines 287 NLRB 169
(1987) Medina Super Duper 286 NLRB 728 (1987) Homart Development
Co 286 NLRB 714 (1987) Emery Realty 286 NLRB 372 (1987) L & L
Shop Rite 285 NLRB 1036 (1987) Skaggs Co 285 NLRB 360 (1987)
Providence Hospital 285 NLRB 320 (1987) Smittys Super Markets 284
NLRB 1188 (1987 ) Greyhoand Lines 284 NLRB 1138 ( 1987) Browning s
Foodland supra
291 NLRB No 4
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[I]f the location of a plant and the living
quarters of the employees place the employees
beyond the reach of reasonable union efforts
to communicate with them the employer must
allow the union to approach his employees on
his property
Id at 112 113 Applying that test to the record
before it the Court found that the nonemployee
organizers were not entitled to access because the
employees lived in nearby communities and could
be reached by the usual methods of imparting in
formation, i e by literature sent through the mail
home visits and telephone calls 351 U S at 107 fn
1 113 Babcock thus holds that where persons
other than employees of an employer that owns or
controls the property in question are concerned
alternative means must always be considered a
property owner who has closed his property to
nonemployee communications on a nondiscrimina
tory basis cannot be required to grant access
where reasonable alternative means exist but in the
absence of such means the property right must
yield to the extent necessary to permit the organiz
ers to communicate with the employees 3
In Hudgens v NLRB 424 U S 507 (1976) which
involved efforts of certain warehouse workers who
were engaged in an economic strike in support of
their collective bargaining demands to picket a
retail store of their employer located in a large
shopping mall the Court (1) reaffirmed the Babcock
accommodation principle 4 (2) extended it beyond
organizational campaigns to the exercise of other
categories of Section 7 rights but (3) suggested
that in making the accommodation the Board must
take into account the character of all the rights in
volved because the locus of the accommodation
may fall at differing points along the spectrum
depending on the nature and strength of the re
spective § 7 rights and private property rights as
serted in any given context Hudgens supra 424
U S at 522 Although the Court did not specifical
ly refer to the alternative means test the con
tinning relevance of that test is implicit in the
Court s reiteration of the necessity of seeking an
accommodation that produces as little destruction
of one [right] as is consistent with the maintenance
of the other Id at 521 quoting Babcock &
Wilcox supra 351 US at 112 When individuals
seeking to exercise Section 7 rights have reasonable
8 We of course continue to adhere to the distinct 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 See e g Babcock supra at
112 Providence Hospital 285 NLRB 320 (1987)
4 See also Central Hardware Co v NLRB 407 U S 539 (1972)
means of exercising them without trespassing pre
cluding access to the private property in question
does not threaten the destruction of the Section 7
rights When such individuals have no reasonable
alternative means then at least some yielding of the
property right may be required to avoid destruc
tion of the Section 7 right 5
We recognize that one problem confronted by
the Board in Fairmont when considering the factor
of alternative means was the anomaly first noted
in Giant Food Markets v NLRB 633 F 2d 18 24
(6th Cir 1980) that making access decisions turn
on the presence or absence of alternative means of
communication could result in allowing access for
the exercise of core Section 7 rights such as em
ployee organizing less readily than for less central
rights such as area standards activity This is so
because the intended audience of an organizing
campaign-the employees of a particular employ
er-is more readily identifiable and thus more
easily reachable away from the property at issue
than is the intended audience of area standards
publicity-an audience that usually consists of po
tential customers of the employer (or customers of
a business that distributes the employers products)
We believe that the significance of this anomaly
can be minimized by making it clear that a union s
own definition of the audience it seeks to reach
through the activity in question will not necessarily
control the analysis of what other means of com
munication constitute reasonable alternatives For
example if a union is seeking to protest a particular
employers maintenance of wage and working con
ditions that it believes is undermining area stand
ards a claim that the union s intended audience
consists of the customers of every establishment that
has even a remote connection to that target em
ployer will not necessarily warrant access to any
and all sites at which such customers may be
found even if access to private property might be
necessary to reach the customers at one such site
In any event the Giant court itself acknowledged
that the perceived anomaly was perhaps inevita
ble 6 Furthermore we are charged with seeking
5 In Sears, Roebuck & Co v San Diego County Council of Carpenters
436 U S 180 (1978) the Court in reviewing the preemption doctrine as it
affected a state court trespass claim affirmed Hudgens elaboration of the
Babcock principle noting that its application requires the limited yielding
of the right to exclude from private property when alternative means are
ineffective 436 US at 204 and fn 39 With regard to subsequent state
ments of the Sears Court we note that it was not itself engaged in an
accommodation analysis and thus we need not infer an intent to elimi
nate the alternative means inquiry from the speculation about the relative
chances of the Board finding that area standards pickets should be grant
ed access to Sears property Id at 205-206 and In 42 See also Justice
Blackmun s concurring opinion in Sears id at 211 and Giant Food Mar
kets v NLRB 633 F 2d 18 fn 13 (6th Cir 1980)
6 633 F 2d at 24
JEAN COUNTRY
to avoid the destruction of rights if at all posse
ble and with permitting infringements on one right
only to the extent necessary to maintain the other
With this mandate we cannot conclude that we
should ever refrain from making any inquiry at all
into whether a denial of access will entirely pre
clude the exercise of a Section 7 right or whether
access is totally unnecessary to the exercise of the
right
We read Babcock & Wilcox as indicating that the
General Counsel bears the initial burden on the al
ternative means factor i e that the General Court
sel must show that without access to the property
those seeking to exercise the right in question have
no reasonable means of communicating with the
audience that exercise of that right entails Babcock
& Wilcox supra 351 US at 113-114 7 This does
not necessarily mean that in order to show that os
tensible alternative means of reaching a relevant
audience are not reasonable alternatives the Gener
al Counsel must show that the party engaging in
the Section 7 conduct actually attempted those
means and found them futile What is required is
simply a clear showing based on objective consid
erations rather than subjective impressions that
reasonably effective alternative means were un
available in the circumstances In some contexts
the attempt must in fact have been made to support
an objective conclusion that an asserted alternative
is not reasonable although in others the unreason
ableness of the asserted alternative may be clear
without such an attempt See Emery Realty 286
NLRB 372 fn 13 (1987) We note however that
generally it will be the exceptional case where the
use of newspapers radio and television will be fea
sible alternatives to direct contact See e g NLRB
v United Aircraft Corp, 324 F 2d 128 130 (2d Cir
1963) ( [t]he predictable alternatives [to direct
communication] bear without exception the flaws
of greater expense and effort and a lower degree
of effectiveness )
Because the Supreme Court in Hudgens indicated
that there is a spectrum of Section 7 rights and
private property rights and that the place of a par
ticular right in that spectrum might affect the out
come of a case, we are not free to assume that
° Of course there is an initial burden on the party claiming the proper
ty right to show through testimonial or documentary evidence that it
has an interest in the property and what its interest in the property is A
party has no right to object on the basis of other persons property inter
ests and an employers mere objections to having union pickets outside
its establishment does not in itself rise to the level of a property interest
See Barkus Bakery 282 NLRB 351 (1986) enfd mem sub nom NLRB v
Caress Bake Shop 833 F 2d 306 (3d Cir 1987) There the Board found it
unlawful for the respondent employer to eject union organizers from pn
vately owned property which abutted the employers plant but which
was under the control of another establishment that was not shown to
object to the organizers presence 282 NLRB 351 at fn 2
13
every Section 7 right is of equal weight when in
trusions on private property are concerned Thus
in cases when a property owner has especially
compelling reasons for barring access and when the
Section 7 right is less central than for example the
right of employees to organize or to protest unfair
labor practices we may more readily find that
means of communication other than those entailing
entry onto the property in question constitute a
reasonable alternative
Factors that may be relevant to assessing the
weight of property rights include but are not limit
ed to the use to which the property is put the re
strictions if any that are imposed on public access
to the property and the property s relative size and
openness (The term property includes both open
spaces and buildings-whichever is the situs to
which those asserting Sec 7 rights seek access )
Factors that may be relevant to the consideration
of a Section 7 right in any given case include but
are not limited to the nature of the right, the iden
tity of the employer to which the right is directly
related (e g the employer with whom a union has
a primary dispute) the relationship of the employer
or other target to the property to which access is
sought the identity of the audience to which the
communications concerning the Section 7 right are
directed and the manner in which the activity re
lated to that right is carried out Factors that may
be relevant to the assessment of alternative means
include but are not limited to the desirability of
avoiding the enmeshment of neutrals in labor dis
putes 8 the safety of attempting communications at
alternative public sites the burden and expense of
nontrespassory communication alternatives and
most significantly the extent to which exclusive
use of the nontrespassory alternatives would dilute
the effectiveness of the message
Although we have identified the foregoing fac
tors within categories labeled property rights
Section 7 rights and alternative means these
categories are not entirely distinct and self con
tamed There is a certain interdependence A given
factor may be relevant to more than one inquiry
Thus for example whether a particular situs is a
vast expanse or cramped quarters may be relevant
both to defining the strength of the property right
and to deciding the reasonableness of conducting
the Section 7 activity on its perimeter as an alterna
tive means of communication Similarly the identi
fication of an intended audience may be relevant
8 See Giant Food Markets v NLRB supra 633 F 2d at 26 (approving
consideration of this factor but finding no danger of enmeshment of neu
trals on the record before it) We note however that the possibility of
enmeshing neutrals is not a sufficient ground in itself for compelling
access to private property
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
both to the identification of the Section 7 activity
(e g organizing employees or protesting an em
ployer s unfair labor practices to the public) and to
determining what means of communication consti
tute reasonable alternatives
Accordingly in all access cases our essential
concern will be the degree of impairment of the
Section 7 right if access should be denied as it bal
antes against the degree of impairment of the pri
vate property right if access should be granted We
view the consideration of the availability of reason
ably effective alternative means as especially signif
icant in this balancing process In the final analysis
however there is no simple formula that will im
mediately determine the result in every case As
the Court made clear in Hudgens we are trying to
accommodate interests along a spectrum Inevita
bly as we apply our analysis in future cases some
patterns will become more clear For example
denial of access will more likely be found unlawful
when property is open to the general public than
when a more private character has been main
tained 9 But as with other legal questions involv
ing multiple factors the nature of the problem as
revealed by unfolding variant situations inevitably
involves an evolutionary process for its rational re
sponse not a quick definitive formula as a compre
hensive answer Electrical Workers IUE Local 761
v NLRB 366 US 667 674 (1961)
II THE RELEVANT FACTS
Respondent Brook Shopping Centers Inc
(Brook) operates the Cross County Shopping
Center in Yonkers New York 10 The shopping
center privately owned comprises 2 large depart
ment stores and 104 smaller specialty stores in an
open air mall Generally the specialty stores are
clustered together and grouped in aisles in the cen
tral part of the mall property with one of the de
partment stores located at the western end of the
cluster and the other at the eastern end The entire
group of stores is surrounded by parking lots hold
ing up to 5400 cars the lots run to the perimeters
of the mall property The shopping center is
bounded by the Cross County Parkway Kimball
Avenue Vredenburgh Avenue, and Central Park
Avenue, all public roads providing access to the
parking lots and the stores through the shopping
center s eight entrances The mall is also accessible
by public transportation i e bus and taxi service
9 Compare e g Scott Hudgens 230 NLRB 414 ( 1977) (denial of access
to large shopping center for employee picketing in support of economic
strike found unlawful ) with Providence Hospital 285 NLRB 320 (1987)
(denial of access to private property of hospital for picketing in support
of union s collective bargaining stance found lawful)
to The owner of the shopping center is not a party to this proceeding
and is not identified in the record
passengers are dropped off and picked up on the
mall property near the stores The mall is open to
the public for shopping 12 hours a day Monday
through Saturday and for 6 hours on Sunday It
accommodates between 10 000 and 20 000 people a
day As a legal procedure for maintaining the pn
vately owned character of the mall property on
Christmas Day each year the shopping center s en
trances are barricaded and signs are posted stating
that the mall is private property
Respondent Jean Country is engaged in the retail
sale of casual clothes operating a number of spe
cialty stores in the New York City metropolitan
area One of its stores is located among the special
ty shops at the mall Like the other stores it leases
its premises from Respondent Brook The Jean
Country store is located in the center of one of the
aisles of specialty stores Chess King By George
and Jean West-stores that sell merchandise similar
to Jean Country s-are located on the same aisle
and nearby Chess King and By George have col
lective bargaining agreements with the Union The
aisle is split into two parallel walkways by an area
of grass trees and shrubbery that runs up the
center of the aisle On Jean Country s side of the
aisle and specifically in the area in front of the
store the walkway is about 14 feet wide from the
storefront to the grassy center area Judging from
the testimonial and photographic evidence it is ap
parent that Jean Country s storefront is about 20
feet across there is an overhang above the store
that is 10 to 15 feet from the ground and that pro
trudes beyond the storefront about 8 feet The
store has a rear entrance not open to the public
facing on one of the parking lot areas Uncontra
dicted testimony at the hearing established that the
nearest public property to the Jean Country store
is at the Central Park Avenue entrance to the mall
approximately one quarter mile away other public
property is located at mall entrances farther away
Jean Country opened its store at the shopping
center on September 22 1983 11 In late July or
early August, while the store was under construc
tion Gaetano Mangano the Union s business repre
sentative visited the location and spoke with Alvin
Feldman, Jean Country s store manager Giving
Feldman his business card Mangano told him that
he understood that other Jean Country stores in
the New York area were unionized that Local 305
represented the employees at most of the stores in
the mall and that Local 305 would be the Union
Feldman would deal with Feldman responded of
firmatively but briefly and gave Mangano the
names of other persons to contact apparently Jean
i i All dates hereinafter are in 1983
JEAN COUNTRY
Country management Mangano and Feldman had
two more similar conversations at the store once
in late August or early September and once in late
September just after the store opened for business
On an occasion in late September or early October
Mangano entered the store and spoke with several
of Jean Country s employees on the selling floor
He talked about the advantages of joining the
Union and he distributed his business card and ap
plications for union membership requesting the
employees to sign the applications if they wished
to have the Union represent them Mangano was
interrupted by the store s assistant manager who
told him that the store was nonunion and asked
him to leave Mangano complied
On the morning of October 12 Mangano went
to the mail office of Ray Cerbone the general
manager of the shopping center and an admitted
agent of Respondent Brook Finding Cerbone not
present, Mangano left a message that he intended
to place an educational picket line at the Jean
Country store beginning in about an hour A little
later as Mangano was taking picket signs from his
car he was spotted by Feldman when Mangano
informed him that the signs were for the Jean
Country store Feldman called Cerbone Soon
thereafter, Mangano met with Cerbone in the shop
ping center Mangano asserted that he had a right
to picket within the mall and he presented a letter
dated in 1980 concerning the Union s organizing
activities and rights at another private shopping
mall in the area Cerbone responded that the shop
ping center s rules prohibited picketing and solicita
tion Both Mangano and Cerbone then referred the
matter to their attorneys A short time later, when
Mangano informed Cerbone that the Union s attor
ney had advised that the picketing would be al
lowed Cerbone again replied that the Union could
not picket because the activity was prohibited by
the mall rules
Mangano and two retired union members en
gaged in picketing in front of the store beginning
at 11 30 am and lasting for just under 1 hour 12
Two picket signs were used each bearing the same
message
To the Public Jean Country is not union The
maintenance of a non union store is a threat to
wages hours and conditions established by the
union Local 305, A F L -C 10 120 Saw Mill
River Road Hastings on Hudson, New York
At least one picket and sometimes two walked
back and forth on the walkway in front of the
12 None of the pickets had ever been employed by Respondent Jean
Country
15
store and beneath the overhang They walked
about 2 feet away from the stores front windows
During the picketing customers walked past unob
structed and entered the store Mangano spoke
with passersby telling them that the Jean Country
store was nonunion asking them not to patronize it
and to shop instead at similar stores in the mall
whose employees were unionized He specifically
pointed out Chess King and By George which as
indicated above were nearby and had collective
bargaining agreements with the Union
On notification that picketing was being carried
out at the store Frank Pucilla chief of security at
the mall and an admitted agent of Respondent
Brook called the Yonkers police and requested
that a police officer be sent to the center Subse
quently Police Sergeant John Skelton arrived at
the scene pursuant to a report of a strike at the
store 13 Mangano told Skelton that the picketing
was informational and not in support of a strike,
and Pucilla added that attorneys for the Union and
the mall were discussing whether the Union would
be permitted to picket in front of the store Skelton
entered the store and spoke with Feldman who
told him that the store was not being struck that
he had no dispute with the Union and that his em
ployees were not unionized When Skelton came
out, Pucilla told him that Mr Marks had just
seen the pickets and wanted them off the mall
property 14 Skelton then told Mangano that, based
on Pucilla s directive he might be arrested for tres
passing if he continued to picket in the mall He
also told him that any further picketing must be
done on the public roads beyond the mall property
At this point Mangano ceased all picketing Subse
quently the Union filed unfair labor practice
charges and a complaint issued on the charges
Regarding the use of the mall property the
record shows there is an annual charity fair and an
annual arts and crafts fair held at the mall Each of
the fairs lasts 3 days and involves tables set up for
various organizations and individuals to sell mer
chandise and raffle tickets-about 40 tables for the
arts and crafts fair and 70 to 75 tables in the case of
the charity fair Those organizing the fairs must
inter alia obtain permission in advance from the
mall authorities and post maintenance and insur
13 The record is not clear whether Skelton was responding to Pucilla s
call or to a call Mangano made earlier informing the police of the intend
ed picketing
14 Mr Marks is apparently an official of Marks Realty & Improve
ment Company Both Cerbone and Pucilla testified that Marks Realty
was their employer and Cerbone further testified that that company
managed the mall property for Respondent Brook We note that neither
Mr Marks nor Marks Realty is a party to this proceeding but that in
any event both Cerbone and Pucilla are admitted agents of Respondent
Brook
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance bonds Initially these fairs had been located
on the mall walkways but because the tables inter
fered with pedestrian traffic they were moved to a
specific parking lot on the property
The judge found that as alleged in the com
plaint the Respondents in advance of the picket
ing demanded that the Union refrain from such
conduct on the Respondents property and that
subsequently the Respondents caused the Yonkers
police to threaten the pickets with arrest for tres
pass The judge concluded that the lawfulness of
the Respondents ejection of the pickets turned on
the objective of the picketing in particular he held
that if the pickets had a recognitional or organiza
tional objective they could be lawfully ejected
whereas if they had an area standards objective
the Respondent could not lawfully eject them He
reasoned that if the objective were recognitional or
organizational then the Union s intended audience
must be the Jean Country employees and the pick
ets must be analogous to the nonemployee organiz
ers in NLRB v Babcock & Wilcox supra Finding
that the Union had reasonable alternative means of
communicating with the employees he concluded
that access need not be granted for picketing with
organizational or recognitional objectives Because
he concluded that the picketing had those objec
tives he dismissed the complaint In an alternative
finding assuming arguendo that the picketing had
an area standards object the judge reasoned that
ejection of pickets carrying signs for that purpose
would be unlawful because they lacked a reasona
ble alternative means of communicating with the
intended audience of such picketing-an audience
that would include potential customers of the Jean
Country store
Although we adopt the judge s findings concern
ing the Respondents demand and their causing the
police to threaten the pickets we do not adopt his
analysis of the appropriate accommodation of the
Section 7 right and private property right exercised
in the circumstances here Pursuant to our accom
modation of the respective rights of the parties we
conclude that the Union was entitled to the limited
access which it in fact claimed and that the Re
spondents conduct violated Section 8(a)(1)
III ANALYSIS
We examine first whether the Respondents had
genuine interests in the mall property as this is a
threshold question in the accommodation analysis
See above at footnote 7 Respondent Brook is the
operator of the privately owned mall and as such
it is apparent that Brook is an agent of the mall s
owner and the lessees of the stores Accordingly
its conduct was based on a legitimate interest in the
mall property generally Respondent Jean Country
has a leasehold in its store premises at the mall in
sofar as it acted in conjunction with Respondent
Brook concerning the mall property in front of its
store its conduct was based on a legitimate proper
ty interest
With the Respondents interests established we
proceed to an examination of the relative strength
of their right to maintain the privacy of the proper
ty The mall consists of 106 stores it is open to the
public for shopping 7 days a week for a substantial
number of hours each day Thus the commercial
nature and purposes of the mall property are clear
it is a single convenient location for the sale and
purchase of a broad range of consumer products
and services Further there are eight entrances to
the mall from four public roads large parking
areas and bus and taxi service on the mall proper
ty the general design clearly being ease of public
access to the stores Between 10 000 and 20 000
people-customers and potential customers-enter
the mall property each day free to park their cars
and walk in the common areas and walkways and
to patronize the various stores if they choose The
photographic exhibits of the aisle where the Jean
Country store is located show the stores lined up
on each side with a central area of grass shrub
bery and trees thus lending the aisle the appear
ance of a public street but without the problems of
parking and traffic It is readily apparent that the
mall has and is intended to have certain quasi
public characteristics See Scott Hudgens 230
NLRB 414 417 ( 1977) see also Group Health
Dental Facility 288 NLRB 200 and dissent at 24 fn
22 (1988) These characteristics enhance the mall s
commercial nature and purpose At the same time
however the quasi public traits 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
We also note that Respondent Brook does not
restrict the use of the mall property to the leasing
of stores and the immediate commercial goals of
the lessees Thus Brook permits annual charity and
arts and crafts fairs to be held in one of the parking
lot areas Although Brook requires inter alia the
posting of maintenance and property bonds by
those who organize the fairs there is no indication
that it charges a rental fee for the space the fairs
use There is also no indication that the invitation
to the public to attend the fairs is any less broad
than the one extended for the patronage of the
mall s stores
JEAN COUNTRY 17
With respect to restrictions on public access to
the mall we note that Shopping Center Manager
Cerbone referred to rules that prohibited solicita
tion and picketing in denying Mangano permission
to picket However no such rules were placed in
evidence 15 Further although we may assume that
the Respondents have rights in some degree to
control access to the property during business
hours and to control the public s conduct on the
property no pertinent regulations have been put
before us 16
Based implicitly on their right to control the
mall property the Respondents contend that the
Union s picketing was impermissible because
taking place on the walkway of one of the aisles of
specialty stores it was an obstruction to pedestrian
traffic and created the possibility of altercations if
the pickets should bump into those passing by The
evidence does not support this argument There
were no more than two pickets at any time patrol
ling Jean Country s 20 foot storefront They
walked back and forth about 2 feet from the store
window beneath an overhang 10 to 15 feet high
on a walkway 14 feet wide There was no showing
that customers or passersby were obstructed during
the course of the picketing And we see no reason
able possibility that this conduct would create a
hazard to pedestrian traffic even at the mall s most
crowded times because of the width of the walk
way the small number of pickets and their physi
cal movement-movement that was not significant
ly different from that of other pedestrians making
their way up and down the walkway or stopping at
stores and store windows as they pass
Taking account of all the factors above it is ap
parent that strict maintenance of the privacy of the
mall property during business hours is not an over
riding concern and in fact is not generally desira
ble because the presence of the public in large
numbers is intrinsic to the commercial goals of the
lessees and Respondent Brook Accordingly we
find that the private property right asserted by the
Respondents in reaction to the Union s picketing is
quite weak in the circumstances
Regarding to the Union s picketing and the right
asserted thereby we agree with the judge s conclu
Sion that the picketing had an organizational and
recognitional objective This is evident in Business
Representative Mangano s three requests of Store
15 We note as did the judge that Respondent Brook permitted picket
ing at the New York Telephone Company s store at the shopping mall
prior to the picketing at issue here The record however is insufficient
for us to evaluate the nature and circumstances of that picketing for put
poses of a disparate treatment analysis See fn 3 supra
16 We assign little weight to the annual procedure of barricading and
posting the mall property on Christmas Day as this merely affirms that
the property is in fact privately owned See Emery Realty 286 NLRB
372 fn 1 (1987)
Manager Feldman for recognition and his solicita
tion of Jean Country employees in the store during
the 3 month period prior to the picketing the letter
Mangano presented to Cerbone on the day of the
picketing concerning the Union s organizing of
forts and the absence of any disclaimer of the
Union s desire to represent the Jean Country em
ployees
In its brief to the Board Respondent Jean Coun
try argues that the picketing was prohibited by
Section 8(b)(7)(C) and thus was unprotected by
Section 7 The General Counsel and the Union
contend that the picketing was privileged under the
publicity proviso of Section 8(b)(7)(C) We note
that although the picketing had an organizational
and recognitional objective it truthfully advised
the public that Respondent Jean Country was a
nonunion employer and there is no evidence that it
had an effect of inducing a cessation of deliveries
or other services Accordingly we find that the
picketing was lawful under the publicity proviso of
Section 8(b)(7)(C) See e g San Francisco Local
Joint Executive Board of Culinary Workers v
NLRB 501 F 2d 794 800-801 (D C Cir 1974)
Retail Clerks Local 324 (Barker Bros) 138 NLRB
478 (1962) affd 328 F 2d 431 (9th Cir 1964) see
also Retail Clerks Local 1404 (Jacobs Downtown)
140 NLRB 1344 (1963) Carpenters St Louis Coun
cil (Vestaglas Inc) 136 NLRB 855 (1962) We note
further that the immediate goal of the picketing
was to persuade potential customers not to patron
ize the Jean Country store and that during the
course of the picketing Mangano asked passersby
to shop at unionized stores in the mall and specifi
cally directed them to Chess King and By George
nearby stores with similar merchandise that had
collective bargaining relationships with the Union
It is thus apparent that the Union s picketing was
conducted at least in part on behalf of the union
ized employees of those stores that were in compe
tition with the nonunion Jean Country store Al
though such conduct has lesser significance in the
scheme of Section 7 than direct organizational so
licitation or the protestation of unfair labor prac
tices at the situs of the primary employer it is nev
ertheless undertaken for the mutual aid or protec
tion of employees and is clearly protected by Sec
tion 7 See Smitty s Super Markets 284 NLRB 1188
(1987) in which we found similar picketing pro
tected by the Act
Regarding other aspects of the Union s protected
conduct the picketing took place pursuant to a
labor dispute between the Union and Respondent
Jean Country concerning its store employees and
the store s nonunion status Jean Country was thus
the Union s target and the picketing was conduct
18 DECISIONS OF THE NATIONAL LABOP RELATIONS BOARD
ed at the situs of the dispute Additionally as noted
in the evaluation of the Respondents private prop
erty right the picketing was limited in manner
peaceful and unobstructive
Taking account of the relative strength of the
Section 7 right in this case we find that the pro
tected picketing that took place is not on the
stronger end of the spectrum of Section 7 rights
Other factors-the picketing s situs and its peaceful
manner-did not diminish the strength of the right
in the circumstances but neither did they substan
tially enhance it However it is a right that is cer
tainly worthy of protection against substantial im
pairment
We turn then to the question of the Union s al
ternative means of communicating its message The
pickets intended audience clearly was the potential
customers of the Jean Country store 17 The single
alternative worthy of extended consideration in
these circumstances is the possibility of the Union s
communicating its message from public property at
the entrances to the mall 18 We begin by recogniz
ing that between 10 000 and 20 000 people come to
the mall each day that the Jean Country store is
one of 104 specialty shops located in the various
aisles of the shopping center that all the stores are
clustered in the central part of the mall property
and surrounded by parking areas that stretch to the
perimeters of the property and that the store itself
is one quarter mile away from the Central Park
Avenue entrance-the nearest public property for
the Union to communicate its message These facts
give rise to several concerns bearing on the unrea
sonableness of the nontrespassory communication
at issue Most significant is the substantial dilution
17 Accordingly we reject the judge s finding that the Union s intended
audience was the Jean Country store employees
8 During the hearing Cerbone suggested that the Union might have
picketed on the mall property in areas removed from the front of the
Jean Country store We find it unnecessary to consider the effectiveness
of these private property alternatives because on the day of the picket
ing Police Sergeant Skelton acting pursuant to the Respondents wishes
effectively ejected the pickets from the entire mall property and informed
them that further picketing could be conducted only on the public roads
leading to the mall Accordingly the Union had no opportunity to picket
at alternative locations on the property
The Respondents contend that the Union did not consider mass media
communication of its message As we noted in part I of this decision it
will be an exceptional case where mass media constitute reasonable alter
natives this is not such a case Delivery of the pickets message via mass
media e g television radio newspaper mass mailings would have re
moved the message entirely from the situs of the labor dispute and con
sequently from the awareness of potential customers of the Jean Country
store at the time they approached the situs We also note the likely
heavy expense for the Union of a mass media communication in the New
York City metropolitan area where the store is located Accordingly we
find that such a means of communicating the Union s message in this case
was not a reasonable alternative See e g Giant Food Markets v NLRB
633 F 2d 18 24-25 (6th Cir 1980) Montgomery Ward & Co 265 NLRB
60 68 (1982) Scott Hudgens supra at 416 See also Seattle First National
Bank v NLRB 651 F 2d 1272 1275-1276 (9th Cir 1980) concerning the
relationship between the immediacy of the message and its effectiveness
of the effectiveness of the Union s message if con
veyed from public property because of the sheer
physical distance from the mall entrances to the
Jean Country store the large number of other
stores and the great number of people coming on
the property at eight different entrances to whom
the Union would have to direct its message
An important aspect of the dilution factor is the
improbability of identifying the potential customers
of the store and communicating to them a message
with any real meaning from the mall entrances It
is a commonplace that many people enter a shop
ping mall particularly one as large as the mall
here without knowing in advance exactly what
they will purchase or if they will buy at all Well
after they have entered the mall they may decide
initially to patronize a particular store This im
pulse shopper factor has been noted previously
see e g Scott Hudgens supra at 417 Because the
distance in time and space between the Union s
communication of its message on public property
to the general public entering the mall and the
point when some of those who entered consider
whether to patronize the Jean Country store i e
become potential customers the meaningfulness of
the Union s message would not only be diluted but
the message itself would miss a conceivably sub
stantial number of potential customers In this case
the Union could identify the potential customers of
the store and communicate a meaningful message
only in a location with relative proximity to the
store
Another consideration if the Union had to corn
municate its message at the mall s entrances given
the circumstances in this case, is the chance that
the Union might unintentionally enmesh neutral
stores in its labor dispute with Jean Country 19
Here there is a reasonable possibility that some
people entering the mall in their cars might on
glancing at the Union s message assume that the
entire shopping center was involved in a labor dis
pute and accordingly turn away More significant
ly because of the large number of stores at the
mall and the time and space distance factor follow
ing the Unions communication of its message at
the mall entrances there is a distinct likelihood of
confusion concerning which store had been identi
feed on the picket sign with the result that stores
other than Jean Country would be subject to a loss
of patronage 20
19 As noted in fn 8 of this decision the possibility of enmeshing neu
trals is not a basis in itself for compelling access to private property In
this case however it is one consideration that weighs in favor of requir
mg that access be permitted
20 Although the possibility of confusion and the enmeshing of neutrals
would exist generally for other stores in the mall if the Union s picketing
Continued
JEAN COUNTRY
Because of the foregoing considerations we find
that the communication of the Union s message
from public property at the entrances to the shop
ping center was not a reasonably effective alterna
tive and that there was in fact no method of com
municating the Union s message effectively other
than entry onto the Respondents property
In making the accommodation of the exercise of
the competing rights our ultimate concern as ex
plained in part I of this decision is the extent of
impairment of the Section 7 right if access should
be denied, in balance with the extent of impairment
of the private property right if access should be
granted As found above the Respondents right to
protect the mall property from the Union s intru
sion was exceedingly weak the maintenance of the
private nature of the mall property such as it is
suffered little if any damage by the specific intru
sion the Union made The Section 7 right on the
other hand in light of the absence of reasonable al
ternatives for the Union to conduct the picketing,
would have been severely impaired-substantially
destroyed within the meaning of Babcock &
Wilcox-without an entry onto the mall property
Thus the Section 7 right outweighed the Respond
ents right to the privacy of the mall property in
this particular context and the Union was entitled
to engage in the picketing that it conducted in
front of the Jean Country store Accordingly we
conclude that the Respondents refusal to permit
the Union s picketing and their subsequent use of
the police to threaten the pickets with arrest for
trespass violated Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
By demanding that the Union refrain from infor
mational picketing protected by Section 7 of the
Act and by causing the Yonkers police to threaten
pickets with arrest for trespass if they did not cease
such protected picketing the Respondents have
violated Section 8(a)(1) of the Act
REMEDY
Having found that the Respondents have en
gaged in certain unfair labor practices, we shall
order them to cease and desist and to take certain
affirmative action designed to effectuate the poll
cies of the Act 2 i
had been conducted at the entrances it is particularly true regarding Jean
West a store not involved in the labor dispute yet having a similar
name selling similar merchandise and located in the same aisle as the
Jean Country store
2 Respondent Jean Country requested that if it should be determined
that the Respondents committed unfair labor practices in this case the
Board s order should severely limit the Union s access to the mall for
picketing As we have found above the Union s picketing on October 12
was in fact limited peaceful and unobstructive and our order similarly
reflects the extent of the protected informational picketing the the Re
19
ORDER
The National Labor Relations Board orders that
Respondent Brook Shopping Centers Inc as
nominee for Dollar Land Syndicate Yonkers New
York its officers agents successors and assigns
and Respondent Jean Country Yonkers, New
York its officers agents, successors and assigns
shall
1 Cease and desist from
(a) Prohibiting representatives of Local 305
Retail & Wholesale Employees Union AFL-CIO
from engaging in peaceful informational picketing
protected by the Act in front of the Jean Country
store in the Cross County Shopping Center Yon
kers New York and causing the Yonkers police to
threaten such representatives with arrest for engag
mg in such picketing as long as that activity is
conducted by a reasonable number of persons and
does not unduly interfere with the normal use of
facilities or operation of businesses not associated
with the Jean Country store
(b) In any like or related manner interfering
with restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Respondent Brook Shopping Centers Inc
shall post at its office in the Cross County Shop
ping Center copies of the attached notice marked
Appendix A Respondent Jean Country shall
post at its store in the Cross County Shopping
Center copies of the attached notice marked Ap
pendix B 22 Copies of the notice on forms pro
vided by the Regional Director for Region 2 after
being signed by each Respondents authorized rep
resentative shall be posted by each Respondent im
mediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by each Re
spondents must permit See e g Emery Realty 286 NLRB 372 fn 16
(1987) Seattle First National Bank 258 NLRB 1222 (1981)
Respondent Jean Country additionally requested that the Union be re
quired to post maintenance and liability insurance bonds prior to picket
ing in the mall implicitly relating the conduct of the Union s picketing to
the conduct of the annual chanty and arts and crafts fairs discussed
above We see a significant difference between the fairs where between
40 and 75 tables are set up for the sale of merchandise and raffle tickets
and the limited picketing in this case We also note the absence of any
reasonable supporting rationale offered by the Respondent for restraining
Sec 7 activity in this way and we can conceive of none Accordingly
we deny the Respondents request
22 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 Nation
al 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
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent to ensure that the notices are not altered
defaced 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 Respondents have taken to comply
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
APPENDIX A
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 ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form join or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT prohibit representatives of Local
305 Retail & Wholesale Employees Union AFL-
CIO from engaging in peaceful informational pick
eting protected by the Act in front of the Jean
Country store in the Cross County Shopping
Center Yonkers New York nor will we cause the
Yonkers police to threaten such representatives
with arrest for engaging in such picketing as long
as that activity is conducted by a reasonable
number of persons and does not unduly interfere
with the normal use of facilities or operation of
businesses not associated with the Jean Country
store
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
BROOK SHOPPING CENTERS INC As
NOMINEE FOR DOLLAR LAND SYNDI
CATE
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form join or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT prohibit representatives of Local
305 Retail & Wholesale Employees Union AFL-
CIO from engaging in peaceful informational pick
eting protected by the Act in front of our store in
the Cross County Shopping Center Yonkers New
York nor will we cause the Yonkers police to
threaten such representatives with arrest for engag
mg in such picketing as long as that activity is
conducted by a reasonable number of persons and
does not unduly interfere with the normal use of
facilities or operation of businesses not associated
with our store
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
JEAN COUNTRY
Richard L De Steno Esq for the General Counsel
Robert M Ziskin Esq of Melville New York for the
Respondent Jean Country
Peter J Shatzkin Esq (Szold & Brandwen P C) of New
York New York for the Respondent Brook Shopping
Centers Inc
Richard M Greenspan Esq (Charles R Katz PC) of
New York New York for the Charging Party
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS Administrative Law Judge Pursuant
to a charge filed on October 14 1983 1 and a first
amended charge filed on November 18 by Local 305
Retail and Wholesale Employees Union AFL-CIO
I All dates are in 1983 unless otherwise stated
JEAN COUNTRY
(Union) a complaint was issued by Region 2 of the Na
tional Labor Relations Board on November 28 against
Jean Country and Brook Shopping Centers Inc as
nominee for Dollar Land Syndicate (Brook) The corn
plaint alleges that on October 12 Respondents violated
Section 8(a)(1) of the Act in that they (a) demanded that
the Union refrain from picketing in front of the Jean
Country store and (b) caused the Yonkers Police Depart
ment to threaten the persons engaged in the picketing
with arrest for trespassing unless they ceased picketing in
front of the Jean Country store
Answers were filed by Respondents in which they
denied the material allegations of the complaint
The case was heard on February 6 and 17 1984 in
New York New York
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the brief filed by Jean Country I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent Brook a New York corporation having
its office and place of business in Yonkers New York
has been engaged in the business of operating shopping
centers including the Cross County Shopping Center lo
cated in Yonkers New York Annually Respondent
Brook in the course and conduct of its business oper
ations derives gross revenues in excess of $500 000 and
purchases and receives at its Yonkers New York facility
goods and materials valued in excess of $50 000 directly
from firms located outside the State of New York
Respondent Jean Country a New York corporation
having its office and place of business in the Cross Court
try Shopping Center has been engaged in the business of
operating a number of retail stores including a store in
the Cross County Shopping Center Respondent Jean
country has leased the Jean Country store from Re
spondent Brook Annually Respondent Jean Country in
the course and counduct of its business operations de
rives gross revenues in excess of $500 000 and purchases
and receives at its facilities in New York State prod
ucts goods and material valued in excess of $50 000 di
rectly from suppliers located outside the State of New
York
Respondents admit and I find that they are employers
engaged in commerce within the meaning of Section
2(2) (6) and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICES
A Facts t
1 Background
Jean Country Is one of 104 specialty retail stores locat
ed within the Cross County Shopping Center a large
privately owned mall in Westchester County which is
open to the public for shopping The mall which is open
7 days a week has parking spaces for 5600 cars and re
ceives about 10 000 to 20 000 people a day
21
In or about August 1983 during the construction of
the Jean Country store Union Business Representative
Gaetano Mangano visited the location introduced him
self and gave a business card to Jean Country Manager
Alvin Feldman and told Feldman that inasmuch as the
Jean Country stores were unionized in New York Local
305 is the Union that the store would deal with in West
chester County Mangano also mentioned that the Union
represents most of the stores here Feldman replied
Okay yes we re union no problem and gave Man
gano the name of the person to contact Thereafter
Mangano had one or two similar short conversations
with Feldman 2
In late September or early October 1983 Mangano
visited Jean Country and spoke to about four employees
on the selling floor He gave them his business card and
spoke to them about the advantages of joining the Union
He distributed union membership application cards and
asked them to sign if they wanted the Union to represent
them Mangano was then asked by the store s assistant
manager to leave and he did so
2 The picketing
On October 12 Mangano visited the office of Ray
Cerbone general manager of the Cross County Shopping
Center and told the receptionist that he intended to
place an educational picket line at Jean Country He
was told that Cerbone was not present but that he would
return shortly Mangano replied that the picket line
would begin in about 1 hour Mangano left Cerbone s
office and phoned the Yonkers Police Department and
told a lieutenant that he was going to place a picket line
at Jean Country The officer said that he would send a
sergeant to go over ground rules Mangano then went
to the parking lot and took picket signs out of his car At
that moment Jean Country Manager Feldman pulled up
in his car saw the signs and asked [A]re those for
me? Mangano replied that they were Feldman then
said You can t picket me here This is a mall Man
gano replied Like hell I cant You watch me Feld
man phoned Cerbone and told him that the Union in
tended to picket the store
Mangano then entered the mall and met with Cerbone
Mangano said that he had a right to picket and Cerbone
replied that according to the rules of the shopping
center solicitation and picketing are not allowed Man
gano referred to a law or court case that allegedly gave
the Union the right to picket and showed a letter to Cer
bone dated September 1980 to The Gallena in White
Plains New York The letter claimed that The Gallena
being a shopping center located in a quasi public location
open to the public cannot deny access to the Union in
its public areas Cerbone phoned his attorney and asked
Mangano if he wanted to speak with him Mangano re
fused but offered to have the Union s attorney speak
with the shopping center s lawyer Mangano left Cer
2 This according to the credited testimony of Mangano I cannot credit
Feldman s testimony that at their first meeting Mangano merely gave
Feldman a business card without saying anything It is most unlikely that
Mangano an experienced union agent would not have taken the oppor
tunity to speak to Feldman in behalf of the Union
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bones office and phoned the Unions counsel A short
while later Mangano was informed by his legal depart
ment that the matter was resolved and he could picket
He then told Cerbone that he was going to picket Cer
bone replied that the issue had still not been resolved and
that he could not picket because the shopping center
rules prohibit picketing and solicitation a
The picketing which began about 11 30 a m and con
tinued for 50 to 55 minutes was conducted by Mangano
and two other retired members of the Union none of
whom had ever worked at Jean Country Two picket
signs were used They bore the following legend
To the Public Jean Country is not union The
maintenance of a non union store is a threat to
wages hours and conditions established by the
union Local 305 A F L -C 10 120 Saw Mill
River Road Hastings on Hudson New York
The two or three pickets walked back and forth in
front of the Jean Country store on the public sidewalk or
walkway which is about 14 feet wide 4 They picketed 2
to 3 feet from the front window of the store During the
picketing people walked past the pickets and entered the
store Mangano told passing customers that Jean Country
was a nonunion store He asked them not to patronize it
and advised them that there were other union stores in
the shopping center that carried similar merchandise 5
Shopping Center Chief of Security Frank Pucilla
called the Yonkers Police Department and requested that
a supervisor be sent because of picketing at the mall
Mangano testified that about 12 or 12 15 p m Ser
geant John Skelton of the Yonkers Police Department
approached and Mangano told him how many pickets
there would be and where the picketing would take
place Skelton reviewed how the pickets should conduct
themselves According to Mangano Pucilla then spoke
to Skelton and they both entered Jean Country and
spoke to Store Manager Feldman On leaving the store
Skelton told Mangano that he was told by Dollar Land
Corp that the picketing must cease Skelton also said
that if the picketing did not stop the pickets would be
arrested for trespass Mangano asked who Dollar Land
Corp was and was told by Pucilla that it was the former
name of Marks Realty 6 Mangano then asked if the shop
ping center was telling him to leave and Pucilla said that
it was Mangano then asked where he could picket if he
was not allowed to do so in front of Jean Country Skel
ton and Pucilla replied that he could picket on the street
at Kimball and Central Park Avenues which according
3 This according to the credited testimony of Cerbone and Mangano
Although there were some differences in their testimony concerning their
conversations that day this summary represents both versions In any
event the important fact that there was a request to picket and a refusal
is conceded and I therefore need not resolve each variation between the
two accounts I accordingly find and conclude that pars 9 and 10 of the
complaint that Respondents demanded that the Union refrain from pick
eting in front of the Jean Country store have been proven
The store has a rear entrance but it is not open to the public
6 At the hearing Mangano identified two other stores at the shopping
center whose employees are represented by the Union and that sell items
similar to those sold by Jean Country
6 Marks Realty and Improvement Company manages the property for
Brook which operates the shopping center
to Mangano are at least one fourth mile away from Jean
Country Mangano stated that picketing is was unaccept
able because it was dangerous and too far away
Pucilla testified that he told Skelton on his arrival that
picketing was taking place and that the pickets were
not allowed there Pucilla then approached Mangano
and told him that he did not have permission to picket in
the shopping center and that he must obtain such per
mission from the management office Mangano replied
that he would get a court order Skelton then said fine
go get a court order and advised Mangano that if he
continued to picket without authorization it would be
considered trespassing on private property
Sergeant Skelton testified that he was instructed by his
captain to investigate a report of a strike He arrived at
the scene and Mangano and Pucilla introduced them
selves Mangano told him that this was an information
al picket line and not a strike Pucilla interjected that
the parties attorneys were negotiating whether the
Union had the right to picket in front of Jean Country
Skelton then went into the store on his own and was
told by Manager Feldman that he had no problem inas
much as he had no union employees and the store was
not being struck Skelton left the store and was told by
Pucilla that Marks had passed by saw the pickets and
stated he did not want them on the property Skelton
then on his own told Mangano that if he insisted on
picketing after this directive from Pucilla that he may be
locked up for trepassing Mangano replied that he
would leave it in the hands of the attorneys Skelton
further advised Mangano that he would have to confine
his picketing to the access roads to the shopping center
I credit the testimony of Sergeant Skelton over that of
Mangano and Pucilla to the extent that his testimony
contradicts theirs regarding the incident Skelton was the
only disinterested neutral person in this encounter and
his testimony is supported by his written report of the in
cident made on the same day
Based on these facts I find and conclude that para
graph 11 of the complaint which states that Respondents
caused the Yonkers Police Department to threaten the
individuals engaged in the picketing with arrest for tres
pass unless they ceased picketing in front of Jean Coun
try has been proven It is clear as conceded by Pucilla
that he told Sergeant Skelton that the pickets were not
allowed there and that Marks did not want them on
the property Clearly then Respondent Brook thereby
announced to the officer that in effect the pickets
should be removed Respondent Jean Country Manager
Feldman too by stating that the store s employees not
being union members and not being struck encouraged
the officer to take the position that he did Respondents
did not stand idly by as disinterested persons and allow
Sergeant Skelton to take the action that he deemed ap
propnate Rather their statements to him indicating their
displeasure with the picketing and their position that the
picketing was not allowed clearly and directly conveyed
to him the message that the pickets must be removed
Sergeant Skelton used the only means he could to
remove them-he threatened them with arrest for tres
pass if they continued to picket That Skelton acted on
JEAN COUNTRY
Respondents suggestion is made crystal clear in his tests
mony that he told Mangano that if he insisted on picket
ing after this directive from Pucilla that he may be
locked up for trespassing Trespass of course is a pri
vate right As such it could only be exercised by Re
spondents to remove persons from their property
It is thus clear and I find that as alleged in the com
plaint Respondents caused the Yonkers Police Depart
ment to threaten the pickets with arrest unless they
ceased picketing in front of Jean Country
3 Other facts
Mangano conceded that he did not ask Jean Country
Manager Feldman for the names and addresses of his em
ployees nor did he ask what the wage rate or the bene
fits of the employees were Jean Country employees told
Mangano their wage rates but he never inquired of them
what benefits they received
Mangano did not try to contact Jean Country custom
ers by means other than picketing and he did not at
tempt to picket in the parking lot areas of the shopping
center or on the common walkway areas of the mall
other than in front of Jean Country He did not ask for
permission to picket on Xavier Drive and general Man
ager Cerbone did not tell him that he could picket if he
obtained permission to do so Cerbone testified that he
did not offer Mangano an alternate place to picket at the
shopping center
In October 1983 permission was given by the shop
ping center for picketing to take place at the New York
Telephone Company building at the back mall on Xavier
Drive The dispute involved employees of the telephone
company and the picketing continued for a couple of
days
Shopping Center General Manager Cerbone testified
that in his opinion because of the large amount of pedes
trian traffic at the mall picketing in general in front of
stores would interfere with pedestrian traffic and create
hazards such as the possibility that pickets might bump
into shoppers and create altercations He stated that
picketing would be most appropriate at the entrances and
exits to the shopping center or within the mall at the
intersection of Xavier Drive and Vreoenburgh Avenue
and at the rear walkway of the stores
Cerbone also testified that certain shows such as a
charity fair and an arts and crafts fair are held at the
shopping center The two shows which are of 3 days
duration at different times of the year consist of various
individuals or organizations setting up tables and selling
items and raffle tickets The organizers of the shows
must (a) obtain permission in advance from the shopping
center (b) obtain a permit from the city of Yonkers (c)
post maintenance and insurance bonds and (d) in the
case of the charity fair obtain the approval of the char
ity it represents The charity fair utilizes 70 to 75 tables
of wares and the arts and crafts fair has about 40 tables
In the past these shows were held on the pedestrian
walkway areas of the mall itself in front of the stores
However because the tables interfered with pedestrian
traffic they have been moved to one area the security
parking lot
III ANALYSIS AND DISCUSSION
23
A The Objective of the Picketing
In my opinion the case turns on the threshold ques
tion presented Whether the true purpose of the picket
ing was to compel Jean Country s compliance with pre
vailing area standards or whether the picketing was for a
recognitional and/or organizational objective
As the Board has recognized a union has a legitimate
interest apart from organization or recognition that em
ployers meet prevailing pay scales and employee bene
fits for otherwise employers paying less than prevailing
wage scales would ultimately undermine area standards
Plumbers Local 741 (Keith Riggs) 137 NLRB 1125 1126
(1962)
However because the usual and normal purpose of a
union is to organize the unorganized and to negotiate
collective bargaining contracts the area standards doc
trine comes into play only when a union has foresworn
its normal role to pursue such ends and has elected only
to protect that which it has already attained in the area
from unfair competitive advantage Sales Delivery Driv
ers Local 296 (Alpha Markets) 205 NLRB 462 469
(1973) Thus when a union claims that its picketing seeks
to preserve area standards the Board will scrutinize its
conduct to ascertain whether such an avowed object is
used merely as a pretext to disguise a recognitional
object Retail Clerks Local 899 (State Mart) 166 NLRB
818 822 ( 1967) enfd 404 F 2d 855 (9th Cir 1968)
There are many factors here that make the determina
Lion of the true objective of the picketing difficult
The General Counsels theory that the Unions actions
constituted valid area standards picketing is supported by
the facts that (a) there was a 2 month interval between
the demand for recognition and the picketing 7 and a 2
to 3 week hiatus between the organizational drive and
the picketing (b) the picketing was conducted with valid
area standard signs (c) no picketing for an avowed orga
nizational and/or recognitional objective was ever con
ducted (d) the Union never advised Jean Country that it
intended to picket for recognition (e) no activities incon
sistent with the area standards picketing were undertaken
contemporaneously with the picketing by the Union (f)
no statements to Jean Country employees or to that em
ployer were made at the time of the picketing which in
dicated that the picketing was other than for its stated
area standards purpose and (g) although the Union
sought to organize the employees and obtain recognition
there was no evidence that it continued to do so at the
time the picketing began
The Respondents theory that the picketing was for an
organizational and/or recognitional objective is support
ed by the facts that (a) 2 months prior to the picketing a
demand for recognition was made by the Union (b) 2 to
3 weeks prior to the picketing the Union engaged in an
organizing campaign among Jean Country s employees
7 I find that Mangano requested recognition by his statement to Feld
man in August during the construction of the store that most of the
stores here are represented by the Union and inasmuch as Jean Coun
try s stores in New York are unionized the Union would be the organiza
tion that the store would deal with in Westchester County
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) the Union did not disclaim an interest in representing
the employees prior to the picketing and (d) the Union s
assertions on its picket sign that Jean Country has sub
standard wages hours and conditions have not been
proven and the Union has undertaken no investigation
of the facts to ascertain the truth of the claims set forth
on its sign 8
I must conclude that the Union did not picket for a
valid area standards purpose
I am aware that when unions have been found to
have engaged in picketing for an illegal objective and
have sought to picket for another objective the Board
has long rejected the application of a presumption of the
continuity of the illegal objective Machinists Local 1173
(Alhambra Motors) 266 NLRB 91 (1983) Here of
course there was no initial illegal picketing only con
duct prior to the picketing demonstrating an organiza
tional and recognitional interest in Jean Country by the
Union Thus although a presumption of a continuing it
legal purpose may not be applied when the Union s
avowed area standards objective can be shown to be
false or otherwise unsupportable then an organizational
or recognitional object can be inferred Sales Delivery
Drivers Local 296 (Alpha Markets) 205 NLRB 462 469
(1973) Moreover this principle that the presumption
will not apply has referred to cases in which the union
has renounced the initial unlawful object which is not
the case here Carpenters Local 1245 (New Mexico Proper
ties) 229 NLRB 236 241 (1977)
Illegal picketing has been found when organizational
and recognitional conduct other than picketing have oc
curred 8 days and 5 1/2 weeks respectively prior to fa
cially valid area standards picketing Minneapolis Trades
Council (Krasen Plumbing) 229 NLRB 98 103 (1977)
Building Trades Council (Pettinaro Construction) 230
NLRB 42 47 (1977) In both cases the unions informed
the employers prior to the picketing that the sole objec
tive thereof was to protest the destruction of area stand
ards Such notification is not present here
Area standards picketing can only be justified
where in fact the picketed employers mode of op
eration can be shown to be substandard in compari
son with the negotiated area standards This neces
sanly means that there must have been an investiga
tion and an evaluation of comparative standards
carried out with as great a degree of thoroughness
as the circumstances will permit Automotive Em
ployees Local 88 (West Coast Cycle Supply Co) 208
NLRB 679 680 (1974)
The only evidence adduced here is that Union Agent
Mangano asked Jean Country s employees what their
wages were There is no evidence that inquiries were
made concerning their hours or conditions Nor did
8 The picket sign does not expressly state that Jean Country s wages
hours and conditions are substandard The sign s language that Jean
Country is nonunion however and the maintenance of a nonunion store
is a threat to wages hours and conditions established by the union per
mits a fair inference to be drawn that the intended audience-the custom
ers of Jean Country-will associate the claim of Jean Country s nonunion
status with the further assertion that that store has lesser wages hours
and conditions than the area standard
Mangano ask any official of Jean Country what the
wages hours or conditions of the employees were Al
though the Union knew the wages of Jean Country s em
ployees it was not proven at trial that such wages were
less than the area standard Inasmuch as the Union did
not possess the knowledge with which to make the claim
on its picket signs that Jean Country s wages hours and
conditions were substandard I find and conclude that its
picketing was not to protest the destruction of area
standards but was for an organizational and/or recogni
tional objective Longshoremen Local 1291 (Trailer
Marine) 266 NLRB 1204 fn 2 (1983) That finding is
supported by the fact that an active organizational cam
paign among Jean Country s employees had been con
ducted only 2 to 3 weeks before the start of the picket
mg with no indication that the Union ever lost its inter
est in representing those employees Moreover the union
agent s statement to the Employers manager some 2
months before the picketing that Local 305 is the Union
it would deal with shows a clear intent that by virtue of
Jean Country operating in Westchester County it should
recognize the Union as the representative of its employ
ees
B The Alleged Violations of the Act
Inasmuch as I have found that the picketing was for
an organizational and/or recognitional objective the
standards applicable to nonemployee organizational ac
tivity on private property must be applied to the facts
NLRB v Babcock & Wilcox Co 351 U S 105 (1956)
involved an employers refusal to permit distribution of
union literature by nonemployee union organizers on
company owned parking lots The Supreme Court held
that there must be an accommodation between the em
ployees Section 7 rights to organize and the employer s
right to prohibit its property from being used by outsid
ers The Court stated
Accommodation between the two must be obtained
with as little destruction of one as is consistent with
the maintenance of the other 351 U S at 112
In defining how the balance might be struck the Court
held that union organizers who seek to solicit for union
membership may intrude on an employers private prop
erty if no alternative means exi[s]t for communicating
with the employees Hudgens v NLRB 424 U S 510
511 (1976)
Hudgens involved picketing to protest an employer s
failure to agree to the union s contract demands The
picketing occurred at a shopping center and was en
gaged in by employees of the store being picketed al
though they were actually working at the store s ware
house not located in the shopping center The Supreme
Court emphasized the difference between the picketing
in Babcock & Wilcox conducted by outsiders and that
conducted in Hudgens by the employees of the picketed
store and stated that the accommodation between the
two conflicting rights may fall at differing points along
the spectrum depending on the nature and strength of
the respective Section 7 rights and private property
rights asserted in any given context 424 U S at 522
JEAN COUNTRY 25
On remand the Board in Scott Hudgens 230 NLRB
414 416 (1977) in finding that the employers threat to
cause the arrest of the pickets violated the Act noted
that in Babcock & Wilcox the intended audience was the
employees sought to be organized and that
If the employees are beyond the reach of reasonable
union efforts to communicate with them it is the
employees right to receive information on the right
to organize that is abrogated when an employer
denies nonemployee union organizers access to the
employer s property
The Board further noted that
In an organizational campaign the group of em
ployees whose support the union seeks is specific
and often is accessible by means of communication
other than direct entry of the union organizers onto
the employer s property such as meeting employees
on the street home visits letters and telephone
calls Ibid
The Supreme Court made the following observation
Experience with trespassory organizational solici
tation by nonemployees is instructive in this regard
While Babcock indicates that an employer may not
always bar nonemployee union organizers from his
property his right to do so remains the general
rule To gain access the union has the burden of
showing that no other reasonable means of commu
nicating its organizational message to the employees
exists or that the employers access rules discnml
nate against union solicitation That the burden im
posed on the union is a heavy one is evidenced by
the fact that the balance struck by the Board and
the courts under the Babcock accommodation prin
ciple has rarely been in favor of trespassory organs
zational activity Sears Roebuck & Co v Carpenters
436 US 180 205 (1978)
Evidence at trial established that Union Agent Man
gano did not request the names and addresses of the em
ployees from Jean Country nor did the Union attempt to
use any means of communicating with the employees
other than by speaking with them on the selling floor of
the store There has been no showing here that unique
circumstances exist that should permit access to Re
spondents private property for picketing for an organs
zational purpose NLRB v S & H Grossingers Inc 372
F 2d 26 (2d Cir 1967)
I accordingly find and conclude that there is no show
ing that the Union lacked an alternative means of com
municating with Jean Country s employees other than
picketing and that a balancing of the conflicting interests
must be struck in favor of the Respondents private prop
erty rights
Nor do I find that Respondents refusal to permit the
Union to picket discriminated against the Union by per
mitting certain charity and arts and crafts fairs to be held
on the shopping center premises Those activities are of a
different nature from the picketing of Jean Country The
fairs involve the selling of merchandise including the so
licitation of chances for the benefit of the organiza
tions involved It cannot be said that by allowing the
fairs Respondents have discriminated against the Union s
picketing to organize Jean Country s employees 9
I therefore find and conclude that the Respondents
demand that the Union refrain from picketing in front of
Jean Country and their causing the Yonkers Police De
partment to threaten the pickets with arrest for trespass
unless they ceased picketing in front of Jean Country
did not violate the Act
I will accordingly recommend that the complaint be
dismissed in it entirety
IV ALTERNATIVE FINDINGS
In the event that the Board or courts find that the
picketing was in fact for a valid area standards objec
tive I would conclude that Respondents violated the
Act as alleged in the complaint by demanding that the
Union refrain from picketing in front of Jean Country
and by their causing the Yonkers Police Department to
threaten the pickets with arrest for trespass unless they
ceased picketing in front of Jean Country
I base this alternative finding on Giant Food Markets
241 NLRB 727 (1979) enf denied 633 F 2d 18 (6th Cir
1980) which I believe is dispositive of the issues In that
case the Board found that the union lawfully conducted
area standards picketing in a shopping center with pick
ets who were never employed by the picketed company
The Board further found that the pickets intended audi
ence was the employees and the potential customers of
the picketed company The Board struck the balance in
favor of the pickets over the property rights of the pick
eted store for the following reasons (a) the picketing lo
cated at the employers store will inure to the benefit of
the employers employees (b) the potential customers of
the store became readily identifiable only when they de
cided to enter the store (c) requiring that the picketing
be conducted at the entrances to the parking lot (250 feet
from the store entrance) would too greatly dilute the
unions message for it to be meaningful and it might
enmesh neutral employees in its dispute with the store at
issue
The facts in the instant case are more persuasive than
those in Giant Food Thus here inasmuch as the Cross
County Shopping Center contains some 104 retail stores
the potential customers of Jean Country would only
become known when they enter that store Unlike Giant
a two store center the enormity of this shopping center
would make picketing at the entrances to the center as
suggested by Respondents totally meaningless to the in
tended audience-the potential customers of Jean Court
try-who may first decide that they wish to patronize
the store only after they enter the center and thus not
9 There was no evidence of any rules prohibiting solicitation or picket
mg at the shopping center Indeed picketing had been conducted by em
ployees of the New York Telephone Company on the center premises
during the same month as the picketing at Jean Country The General
Counsel cannot rely on the telephone company picketing for support
here because such picketing was in the nature of an economic strike and
not for an organizational or recognitional purpose Scott Hudgens 230
NLRB 414 (1977)
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
take heed of the signs at the entrance to it Moreover
the danger of enmeshing neutrals by requiring picketing
at the center entrances is far greater here than in the
two store Giant center inasmuch as the potential shop
per on seeing the picket signs might assume that the
entire shopping center is being struck In addition the
similarity of names between Jean Country and Jean
West another store at the shopping center that sells simi
lar merchandise would certainly have the potential to
lead potential shoppers to erroneously believe on a
quick look at the picket signs at the entrance to the shop
ping center that Jean West is the object of the picketing
I do not place any reliance on Respondents hypotheti
cal testimony that picketing might create altercations
due to shoppers being jostled by the pickets or that it
would in some way interfere with pedestrian traffic
There has been no proof of such interference or any ap
parent likelihood that it would occur because of the
broad walkway in front of the store Respondents could
cite no such instances of such interference with pedestri
an traffic during the picketing that did occur on October
12
Accordingly assuming that valid area standards pick
eting was being conducted I would strike the balance in
favor of picketing occurring in front of the Jean Country
store Giant Food Markets supra
Inasmuch as I have already found that Respondents
demanded that the Union refrain from picketing in front
of the Jean Country store and that they caused the Yon
kers Police Department to threaten the pickets with
arrest for trespass unless they ceased such picketing I
would find that such actions violated Section 8(a)(1) of
the Act Giant Food Markets supra at 729 Seattle First
National Bank 243 NLRB 898 (1979)
CONCLUSIONS OF LAW
1 Respondents Brook Shopping Centers Inc as
nominee for Dollar Land Syndicate and Jean Country
and each of them are employers engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 The Union Local 305 Retail & Wholesale Employ
ees Union AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act
3 On October 12 1983 the Union engaged in picket
ing in front of Jean Country for an organizational and/or
recognitional objective
4 Respondents did not violate the Act by demanding
that the Union refrain from picketing in front of the Jean
Country store or by causing the Yonkers Police Depart
ment to threaten the pickets with arrest for trespass
unless they ceased picketing in front of the Jean Country
store
5 Respondents have not engaged in the violations of
the Act as alleged in the complaint
[Recommended Order for dismissal omitted from pub
lication ]