Johnson & Hardin Co.

National Labor Relations Board - Board Decisions

Nov 21, 1991

305 N.L.R.B. 690 (N.L.R.B. 1991)

690
305 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 291 NLRB 11 (1988). In Jean Country, the Board interpreted
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and its prog-
eny.
3 See Jean Country, above, at 13 fn. 7; Giant Food Stores, 295
NLRB 330 (1989), motion for reconsideration denied 298 NLRB
410 (1990).
4 On the only occasion during the hearing that any party attempted
to adduce evidence concerning the disposition of the trespass com-
plaints, the administrative law judge sustained an objection to the
testimony. No exceptions were filed to his ruling. Thus, although the
parties’ briefs make reference to the disposition of the trespass com-
plaints—and present varying characterizations of it—there is no
record evidence on this matter.
5 461 U.S. 731 (1983).
Johnson & Hardin Co. and Graphic Communica-
tions International Union, Local 508, O-K-I,
AFL–CIO–CLC. Case 9–CA–25372
November 21, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On February 15, 1989, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed a brief in opposition to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided, for the reasons stated below, to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act by excluding three union or-
ganizers from the driveway leading to the Respond-
ent’s plant. Union Executive Vice President Harold
Perry and members Daniel Zeisler and Anthony Ar-
nold distributed organizational literature to the Re-
spondent’s employees during shift change on the
morning of April 27, 1988. To pass out the literature,
the organizers stood in the long driveway leading from
a public roadway to the Respondent’s plant. After
about 15 minutes, William Scarpaci, the Respondent’s
vice president of operations, told the union organizers
that they were on the Respondent’s property and asked
them to leave. The organizers, however, remained in
the driveway. Scarpaci returned about 15 minutes later,
accompanied by a group of employees. This time the
organizers heeded Scarpaci’s request to depart.
Scarpaci then called the police, who arrived after the
organizers had left.
In finding the Respondent’s expelling of the orga-
nizers unlawful, the judge found that the Respondent’s
driveway was on land owned by the State of Ohio in
which the Respondent possessed only an easement for
ingress and egress. Because the Respondent’s easement
gave it no right to control the property but merely a
right to use it for ingress and egress and because the
Union’s handbilling posed minimal if any interference
with that right, the judge concluded that the Respond-
ent’s exclusion of the union organizers from this prop-
erty violated the Act.
The Respondent contends that the judge erred in
failing to consider, pursuant to the Board’s decision in
Jean Country,2 whether, without access to the drive-
way, the Union had reasonably effective alternative
means to convey its message to the Respondent’s em-
ployees. The balancing test set forth in Jean Country—
of which assessment of reasonable alternative means is
part—is applicable, however, only in cases where
property rights and Section 7 rights conflict. When an
employer does not possess a property interest entitling
it to exclude individuals from the property even if their
presence were not protected by Section 7, the employ-
er’s exclusion of such individuals from the property
does not implicate Jean Country’s balancing test. Ab-
sent such a property interest, the exclusion of the indi-
viduals presents no conflict between the asserted Sec-
tion 7 right and the employer’s property right. Thus,
to invoke the Jean Country balancing test, the em-
ployer must meet the threshold burden of showing that
it possesses such a property interest3 As we agree with
the judge that the Respondent failed to make this
showing, we adopt his finding that the Respondent’s
exclusion of the organizers violated Section 8(a)(1).
2. The Union’s unfair labor practice charge con-
cerning the Respondent’s exclusion of the union orga-
nizers from the driveway was served on the Respond-
ent about 5 days after this incident occurred. After the
Respondent received the charge, the Respondent filed
complaints in the Mayor’s Court for the Village of
Fairfax, Ohio, alleging that the organizers had know-
ingly entered on the Respondent’s premises in viola-
tion of a county criminal trespass ordinance. Warrants
were then issued for arrest of the three organizers.4
The judge found that the Respondent’s filing of the
criminal trespass complaints violated Section 8(a)(1) of
the Act. He provided no separate rationale for this
finding but, rather, appeared to view it as following di-
rectly from his conclusion that the Respondent’s exclu-
sion of the organizers from the driveway violated the
Act.
In deciding whether the filing of a state court civil
lawsuit is an enjoinable unfair labor practice, the
Board, under the teachings of the Supreme Court’s de-
cision in Bill Johnson’s Restaurants v. NLRB,5 must
691JOHNSON & HARDIN CO.
6 See, e.g., H. W. Barss Co., 296 NLRB 1286 (1989); Phoenix
Newspapers, 294 NLRB 47 (1989); Bill Johnson’s Restaurants, 290
NLRB 29 (1988).
7 Lane v. Correll, 434 F.2d 598, 600 (5th Cir. 1970).
8 See Lane v. Correll, above. In Leeke v. Timmerman, 454 U.S.
83 (1981), the Supreme Court, citing with approval Lane v. Correll,
appeared to recognize the right of individuals to seek criminal war-
rants for the arrest of others as an aspect of the right to petition the
Government for redress of grievances. The Court found this right not
to have been violated in that case by a state official’s presenting in-
formation to a magistrate in opposition to issuance of the warrants,
as the official’s action did not interfere with the right of those seek-
ing the warrants to bring their complaints to the attention of the
magistrate.
A similar issue was presented in Sure-Tan, Inc. v. NLRB, 467 U.S.
883 (1984). The employer there argued that its request to the Immi-
gration and Naturalization Service (INS) to check the immigration
status of the employer’s employees was protected as an aspect of the
first amendment right to petition for redress of grievances and, thus,
could not be found to violate the Act. The Court rejected this argu-
ment on the basis that the employer, in invoking the INS process,
was not seeking redress of any wrongs committed against itself.
The action of the Respondent here in filing the criminal trespass
complaints is distinguishable from the employer’s request to the INS
in Sure-Tan; the complaints the Respondent filed sought to redress
the alleged wrong that the Respondent itself suffered from the as-
serted trespass on its property. Thus, the Court’s holding in Sure-
Tan does not preclude the Respondent’s filing of the criminal com-
plaints from coming within the protection of the first amendment
right to petition. Additionally, we note that the Court in Sure-Tan,
although rejecting the employer’s argument that its request to the
INS was privileged under Bill Johnson’s, did not hold that the un-
derlying reasoning of Bill Johnson’s was applicable only to civil
lawsuits.
9 Member Devaney agrees that retaliatory motive and lack of rea-
sonable basis are the appropriate criteria for determining whether an
employer’s filing of a criminal trespass complaint violates Sec.
8(a)(1). Although finding Bill Johnson’s not directly applicable to
the present case because Bill Johnson’s involved a civil lawsuit,
Member Devaney finds these criteria applicable here because of the
importance the American system of justice places on the rights of
parties to seek vindication of their legal claims in court. He agrees
that the Respondent’s filing of the criminal trespass complaints
comes within the protection afforded by the first amendment for pe-
titioning the Government for redress of grievances.
10 The state court disposition of the criminal trespass complaints
would have been relevant to our determination of whether the com-
plaints had a reasonable basis in law and fact. As noted at fn. 4
above, however, no evidence on this point was received into the
record, and no exception to its exclusion was filed. Thus, introduc-
tion of this evidence is deemed to have been waived. See Bill John-
son’s, above, 461 U.S. at 750 fn. 15.
11 The dissent is in error in its reliance on Ohio law to support
the argument that the Respondent had a reasonable basis for the fil-
ing of its criminal complaints. Wolf v. Roberts, (CP) 30 O Ops 499,
420 OL Abs 449 (1945), relied on by the dissent, states that, by vir-
tue of a public easement in a warranty deed, a plaintiff:
cannot prevent even a trespasser from using the land, if it does
not impede his [the plaintiff’s] exercise of its use as a right of
way. [Citation omitted. Id. at 500.]
Here, the judge credited the testimony of union witnesses that, in
the driveway where the union representatives were handbilling,
‘‘there was no backup of traffic’’ (Harold Perry); that there was no
‘‘steady line of cars’’ entering or exiting the driveway (Dan Zeisler);
and that ‘‘we stepped out of the way so we didn’t interfere with the
traffic coming in or out’’ (Anthony Arnold). As the judge also
found, even the Respondent’s witness, Douglas Miller, confirmed
that the handbilling posed no delay to his arriving at work on time.
Thus, the credited testimony furnishes no basis for the Respondent’s
contention that the handbillers ‘‘impede[d]’’ exercise of the ease-
ment’s ‘‘use as a right of way’’ under Ohio law, nor for our dis-
senting colleague to assert that the Respondent can defend the rea-
sonableness of its action on the bald claim that ‘‘Union handbillers
caused a delay of vehicles’’ entering the driveway. Thus, the Re-
Continued
determine whether the lawsuit lacks a reasonable basis
in law and fact and whether the lawsuit was filed with
a retaliatory motive6 The reasoning expressed by the
Court in Bill Johnson’s for requiring this inquiry leads
us to conclude that the same analysis should be applied
here, where the Respondent filed not a civil lawsuit
but criminal complaints.
In Bill Johnson’s, the Court recognized that lawsuits
filed by employers may be powerful instruments of co-
ercion or retaliation. Nevertheless, the Court found that
overriding this concern were the right of access to the
courts, which is an aspect of the first amendment right
to petition for redress of grievances, and the States’
compelling interest in maintaining domestic peace.
Therefore, the Court held that a lawsuit that has a rea-
sonable basis in law and fact is not an enjoinable un-
fair labor practice even if the employer’s motive in fil-
ing it is to retaliate against employees for exercising
their Section 7 rights.
The same considerations are implicated in the Re-
spondent’s filing of criminal trespass complaints. A
state criminal complaint, perhaps even more than a
state-court civil lawsuit, invokes the State’s compelling
interest in maintaining domestic peace. Moreover, the
filing of a criminal complaint, which ‘‘set[s] in motion
the governmental machinery which redresses violations
of municipal ordinances,’’7 is, like the filing of a civil
lawsuit, an aspect of the right to petition the Govern-
ment for redress of grievances8 Accordingly, we find
that the criteria used in Bill Johnson’s should be ap-
plied in evaluating whether the Respondent’s filing of
the criminal trespass complaints against the union or-
ganizers violated Section 8(a)(1).9
Application of these criteria leads us to conclude
that the Respondent violated Section 8(a)(1). First, we
find that the Respondent’s filing of the criminal tres-
pass complaints lacked a reasonable basis in law and
fact because, as the judge found, the driveway leading
to the Respondent’s plant was on land owned by the
State of Ohio and the Respondent did not possess an
interest in this property sufficient to exclude from it
trespassers, such as the organizers here, who were not
interfering with the Respondent’s right to use the
driveway for ingress and egress.10 The subjective be-
lief of the Respondent’s vice president that the Re-
spondent had fee simple ownership of the property in
question is not relevant to whether the criminal tres-
pass complaints filed by the Respondent had a reason-
able basis in law and fact, as this test is an objective
one.11
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent has not met its burden of showing that it had a property
interest on which it could demonstrate a reasonable basis for exclud-
ing the union representatives.
12 The Respondent presented evidence that it has ‘‘no trespassing’’
signs posted around its property and that it once brought criminal
charges against a former employee who had entered its plant without
the Respondent’s permission. The judge found the latter incident ir-
relevant to this proceeding, and we agree that it is substantially dif-
ferent from the facts of the present case, in that the union organizers
did not enter, or even come near, the Respondent’s plant.
13 Scarpaci and union organizer Arnold testified that Scarpaci in-
troduced himself to the organizers before he asked them to leave.
Union organizers Perry and Zeisler testified that Scarpaci introduced
himself to the organizers and they introduced themselves to him. In
fact, Zeisler testified that Scarpaci stated, ‘‘My name is Bill
Scarpaci, what is your name?’’ Although the judge made no credi-
bility resolutions, no witness specifically disputed Perry and Zeisler’s
testimony that the organizers introduced themselves to Scarpaci.
14 In finding that the filing of the criminal trespass complaints had
a retaliatory motive, Member Devaney additionally notes that the
complaints were aimed directly at the protected conduct—the orga-
nizers’ presence in the driveway to distribute organizational lit-
erature. Cf. H. W. Barss Co., 296 NLRB 1286 (1989) (suit found
retaliatory because, inter alia, it was aimed directly at protected ac-
tivity); Phoenix Newspapers, 294 NLRB 47 (1989) (same). Member
Devaney further notes that the potential consequences—fines and
imprisonment—of a criminal action carry a stigma which the finding
of civil liability does not. Consequently, the Respondent’s initiation
of criminal action against the organizers, rather than a less drastic
means of protecting its property rights, is an additional indication of
Respondent’s motivation.
15 See, e.g., Clark Manor Nursing Home, 254 NLRB 455 (1981);
Medical Center Hospitals, 244 NLRB 742 (1979); Baptist Memorial
Hospital, 229 NLRB 45 (1977).
Additionally, we find that the Respondent’s filing of
the criminal trespass complaints against the union or-
ganizers had a retaliatory motive. The Respondent did
not file the criminal complaints until shortly after it re-
ceived the unfair labor practice charge the Union had
filed against it. Indeed, the Respondent admits that it
read the charge before it filed the criminal complaints.
In explanation of this sequence, the Respondent states
that, consistent with its asserted policy of filing crimi-
nal charges against trespassers,12 it had desired to file
the criminal complaints sooner but had been unable to
do so until it learned the names of the union organizers
who had been in the driveway. Its receipt of the unfair
labor practice charges, which contained the names of
the organizers, gave the Respondent the information it
needed to file the criminal complaints.
We find this explanation unpersuasive. We note first
that, despite the Respondent’s purported policy of
pressing criminal charges against trespassers, it failed
to summon the police when the union organizers re-
fused the Respondent’s initial request to leave the
driveway. Rather, the Respondent neglected to contact
the police until after Scarpaci made a second request
for the organizers to leave and they departed. As the
organizers were gone before the police were called, the
police had no opportunity to arrest them.
Additionally, it appears that before Scarpaci asked
the organizers to leave, he introduced himself to them
and they, in turn, told him their names.13 Thus, con-
trary to the Respondent’s contention, the Respondent
had learned the organizers’ names prior to receiving
the unfair labor practice charge.
Finally, even accepting the Respondent’s assertion
that it did not know the organizers’ names until it re-
ceived the charge, there is no evidence that the Re-
spondent had made any effort to obtain the organizers’
names. For example, even though Scarpaci had been
given the Union’s literature, which included the
Union’s address and telephone number, there is no evi-
dence that the Respondent had contacted the Union to
request the names of the organizers.
Accordingly, as we are not persuaded by the Re-
spondent’s explanation for the timing of its filing of
the criminal complaints against the organizers, we infer
from the timing of the Respondent’s filing of the com-
plaints shortly after its receipt of the Union’s unfair
labor practice charge that the Respondent’s action was
prompted by the Union’s charge. For this reason, as
well as the others discussed above, we conclude that
the Respondent’s filing of criminal trespass complaints
against the organizers had a retaliatory motive.14 As
the Respondent’s filing of the criminal complaints
lacked a reasonable basis in fact and law and had a re-
taliatory motive, we conclude that, by filing the com-
plaints, the Respondent violated Section 8(a)(1).
3. The Respondent excepts to the provision in the
judge’s recommended Order that the Respondent with-
draw the criminal trespass complaints filed against the
three union organizers. The Respondent asserts that,
once the complaints were filed, the Village of Fairfax,
Ohio, had control of the criminal proceedings and the
Respondent had no authority to withdraw the com-
plaints. Although calling the Respondent’s argument
‘‘hypertechnical,’’ the Union agrees that, under Ohio
law, only the court or the prosecutor may withdraw the
criminal charges. Accordingly, we will modify the
judge’s recommended Order to require that the Re-
spondent request the appropriate Ohio court or official
to dismiss the criminal trespass complaints. As is cus-
tomary in cases such as the present one, we shall also
order the Respondent to join the union organizers, if
they so request, in petitioning the appropriate police
department and local court to have any proceedings in-
volving the Respondent’s criminal complaints at issue
expunged from the police and court records.15
4. Finally, the Respondent excepts to the provision
in the judge’s recommended Order that the Respondent
make whole the union organizers for any legal ex-
penses and fines incurred by them as a result of the
Respondent’s criminal trespass complaints filed against
them. We find, however, that such a reimbursement re-
quirement is entirely appropriate to remedy the injury
caused to the union organizers as a direct result of the
693JOHNSON & HARDIN CO.
16 288 NLRB 126 (1988), enf. denied on other grounds 904 F.2d
1156 (7th Cir. 1990).
17 See Summitville Tiles, 300 NLRB 64 (1990); H. W. Barss Co.,
296 NLRB 1286 (1989); Phoenix Newspapers, 294 NLRB 47
(1989).
1 Ohio Rules of Criminal Procedure, Rule 3. See also 26 O Jur.
3d, Sec. 465.
2 See State v. Williams, 19 O App 2d 234, 48 O Ops 2d 365, 250
NE2d 907 (1969); U.S. v. Chemical Foundation, 272 U.S. 1, 14–15
(1926); and Ross v. Stewart, 227 U.S. 530, 535 (1913).
3 See Wolf v. Roberts, (CP) 30 O Ops 499, 420 OL Abs 449
(1945).
4 The majority characterizes the Respondent’s assertion of delay as
being a ‘‘bald claim.’’ In fact, the assertion is supported by the
judge’s finding that the Union’s distribution of handbills caused
‘‘some delay of entering vehicles.’’ Concededly, there is other evi-
dence that there was no ‘‘backup of traffic’’ or ‘‘a steady line of
cars.’’ However, the issue is whether the Respondent had a reason-
able basis for asserting that there was an ‘‘impeding’’ under Ohio
law. The fact that there is evidence countering the Respondent’s evi-
dence does not establish that the Respondent’s claim was baseless.
5 The complaint alleges that the Respondent’s act of filing the
complaint with public authorities was unlawful. The complaint does
not allege that the public officials’ filing of the criminal prosecution
was unlawful. In addition, there is no contention that the criminal
prosecution became preempted and unlawful after the filing of the
Continued
Respondent’s unlawful filing of criminal trespass
charges against them and to restore the status quo to
that which existed before the Respondent’s unlawful
action. To the extent that Montgomery Ward & Co.,16
on which the Respondent relies, holds that reimburse-
ment of legal fees and expenses incurred by non-
employee union representatives as a result of a re-
spondent’s unlawful conduct may not be awarded, it
has been implicitly overruled by subsequent prece-
dent.17 Moreover, contrary to Montgomery Ward, in
considering the availability of reimbursement of legal
fees and expenses as a remedy, we see no basis for
distinguishing between employees and nonemployee
union representatives as recipients of reimbursement.
Accordingly, we adopt the judge’s recommended Order
in this regard.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, John-
son & Hardin Co., Fairfax, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Request the appropriate Ohio court or official
to dismiss the criminal trespass complaints the Re-
spondent filed against Harold Perry, Daniel Zeisler,
and Anthony Arnold, notify them in writing that this
has been done, and, if they so request, join them in pe-
titioning the appropriate police department and local
court to request that any proceedings involving the Re-
spondent’s criminal complaints against them be ex-
punged from their records, and pay any expenses in-
volved in the expunction proceedings.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Reimburse Harold Perry, Daniel Zeisler, and
Anthony Arnold for the legal fees and expenses they
incurred in defense of charges resulting from the crimi-
nal trespass complaints that the Respondent filed
against them.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER RAUDABAUGH, dissenting in part.
I disagree with my colleagues’ conclusion that the
Respondent had no reasonable basis for filing its tres-
pass complaint. My colleagues base this conclusion on
their finding that the Respondent had no property in-
terest in the driveway leading to the plant. However,
a finding that the Respondent had no property interest
in the driveway is a far cry from a conclusion that the
Respondent had no reasonable basis for making the
claim. In the instant case, the Respondent’s claim was
backed up by the public authorities who issued the
warrants. In Ohio, no warrant can issue unless a public
officer has made a finding of probable cause.1 Hence,
in the instant case, a public official was required to
make a finding that there was ‘‘probable cause’’ that
the Respondent had a property interest in the driveway
leading to its plant. There is a presumption of regu-
larity in the issuance of a warrant by a public official.2
Accordingly, it can be presumed that officials in this
case had a reasonable basis for believing that the prop-
erty was sufficiently private to warrant a criminal tres-
pass action.
Further, there is independent evidence to support the
view that the Respondent’s claim was at least reason-
able. The driveway is an easement leading to the Re-
spondent’s plant. In addition to maintaining the drive-
way and its bordering posts and cables, the Respondent
maintains the trees, bushes, flowers, and grass imme-
diately adjacent to its easement. The Respondent has
also placed ‘‘no trespassing’’ signs on that property.
The Respondent’s business insurance covers liability
for events occurring on the easement.
Moreover, where a public easement leads to private
property, Ohio law permits the property owner to oust
a person from the easement if that person is impeding
the property owner’s use of the easement as a right of
way.3 In the instant case, the Respondent’s trespass
claim was bolstered by the evidence that union
handbillers caused a delay of vehicles seeking to use
the easement to enter the Respondent’s property.4
Based on the above, I believe that the Respondent’s
trespass claim was not baseless. Accordingly, the Re-
spondent was entitled to seek the protection of Ohio
law, and the public authorities were entitled to go to
Ohio courts in vindication of Ohio law.5
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel’s complaint in this case. In these circumstances, I
do not pass on the issue of whether the criminal proceeding became
unlawful as of the date of the General Counsel’s complaint.
1 All dates are 1988. 2 R. Exh. 7, various insurance policies, is received in evidence.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT attempt to prevent representatives of
Graphic Communications International Union, Local
508, O-K-I, AFL–CIO–CLC, or any other union, from
distributing union literature to our employees on the
drive leading from Red Bank Road to our premises,
nor will we file complaints of trespass against them
because they engage in such conduct.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL request the appropriate Ohio court or offi-
cial to dismiss the criminal trespass complaints we
filed against Harold Perry, Daniel Zeisler, and An-
thony Arnold, notify them in writing that this has been
done, and, if they so request, join them in petitioning
the appropriate police department and court to request
that any proceedings involving our criminal complaints
against them be expunged from their records, and pay
any expenses involved in the expunction proceedings.
WE WILL reimburse Harold Perry, Daniel Zeisler,
and Anthony Arnold for the legal fees and expenses
they incurred in defense of charges resulting from the
criminal trespass complaints that we filed against them.
JOHNSON & HARDIN CO.
James Murphy, Esq., for the General Counsel.
Michael W. Hawkins and Robert D. Hudson, Esqs., for John-
son & Hardin Co.
Robert Mitchell, Esq., for the Charging Union.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Cincinnati, Ohio, on No-
vember 29 and 30, 1988,1 pursuant to charges filed and
served on April 27 and June 10, and complaint issued on
June 14. The complaint alleges that Johnson & Hardin Co.
(Respondent) violated Section 8(a)(1) of the Act by prohib-
iting union handbill distribution at the entrance to its prop-
erty, and by filing complaints of criminal trespass against
those doing the handbilling. Respondent denies the commis-
sion of unfair labor practices.
On the record evidence,2 and after considering the testi-
monial demeanor of the witnesses appearing before me and
the able posttrial briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Fairfax, near Cincinnati, Ohio, where it is en-
gaged in the printing of books and related materials. During
the 12 months preceding the issuance of the complaint, Re-
spondent, in the course and conduct of these business oper-
ations, purchased and received at its Fairfax, Ohio facility
products, goods, and materials valued in excess of $50,000
directly from points outside the State of Ohio, and is now,
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
Graphic Communications International Union, Local 508,
O-K-I, AFL–CIO–CLC (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Facts
The sole access to Respondent’s plant premises is by way
of an asphalt paved drive extending from Respondent’s to-
tally owned premises for more than 150 feet over land
owned by the State of Ohio to a public roadway denominated
Red Bank Road. The applicable provision in the general war-
ranty deed conveying the property to Respondent on which
its facility is located describes ‘‘an easement for ingress and
egress from and to Red Bank Road over a strip of land 24
feet in width.’’ Although it appears the paved drive is within
the 24-feet width for most of its length, the testimony of
William Scarpaci, Respondent’s vice president of manufac-
turing, establishes that it widens as it approaches Red Bank
Road to a width of approximately 40 feet at a point about
12-feet short of Red Bank Road. In addition to maintaining
the driveway and its bordering posts and cables, Respondent
maintains the trees, bushes, flowers, and grass immediately
adjacent to its easement, and places no trespassing signs on
that property. Respondent’s business insurance covers liabil-
ity for events occurring on the easement.
In March and April, Harold Perry, the Union’s executive
vice president, received telephone calls from about ten of Re-
spondent’s employees expressing interest in union representa-
tion. This encouraged Perry to assemble packets of union lit-
erature promoting such representation, and, together with
union members Daniel Zeisler and Anthony Arnold, to pro-
ceed to the driveway leading from Red Bank Road to Re-
spondent’s premises at 6:30 a.m. on April 27 and there hand
the packets of literature to Respondent’s employees as they
entered or left in their automobiles. First-shift employees
were entering. Third-shift employees were leaving. The
handbillers neither stood in front of entering or leaving vehi-
695JOHNSON & HARDIN CO.
3 Witnesses differ regarding how far up the drive the distribution
took place. These differences are insignificant because it is clear all
distribution was on the easement.
4 Respondent’s past filing of trespass charges against a former em-
ployee for entering its plant is irrelevant to this proceeding.
5 291 NLRB 11 at 13 fn. 7 (1988).
6 In the absence of an enabling statute, an easement by prescription
cannot be acquired against a State, 25 Am.Jur.2d, Easements and Li-
censes § 41 (1966), nor can adverse possession, 3 Am.Jur.2d, Ad-
verse Possession § 270 (1986).
7 75 Am.Jur.2d, Trespass § 25 (1974).
8 292 NLRB 331 (1989).
9 282 NLRB 351 (1986), enfd. sub nom. NLRB v. Caress Bake
Shop, 833 F.2d 306 (3d Cir. 1987).
10 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
Continued
cles nor otherwise attempted to impede or impeded their
progress. Not all employees stopped when they reached the
union representatives. Those who did opened their windows,
accepted the proffered literature, and resumed driving. It
does not appear there was any traffic backup caused by de-
parting vehicles pausing to collect the union materials. There
was some delay of entering vehicles caused by employees
stopping to receive literature. That these stoppages were brief
is indicated by the lack of any evidence that any employee
was late reporting to work. The brevity of any stoppages of
incoming vehicles is confirmed by Douglas Miller, a witness
called by Respondent, who testified that there were three or
four cars in front of him in the entry drive at about 6:55
a.m., but he still had time to park his car and got to work
on time at 7 a.m. At no time did the union representatives
enter the plant premises proper. The literature distribution all
took place on the easement.3
At about 6:45 a.m., William Scarpaci, Respondent’s vice
president of operations, drove in, accepted the literature, and
proceeded into the plant premises where he parked his car.
He then walked back to the handbillers, advised them Re-
spondent’s property extended to Red Bank Road, and asked
them to leave. The union representatives moved closer to
Red Bank Road, but remained on the easement. Scarpaci re-
turned to the plant, asked some employees to accompany
him, and again went to the union men and asked them to
leave. They then did so at about 7:05 a.m. as Scarpaci re-
calls.
After securing their names from the charge filed by the
Union on April 27, Respondent filed complaints in Mayor’s
Court, Village of Fairfax, Hamilton County, Ohio, alleging
that Perry, Arnold, and Zeisler ‘‘without privilege to do so
knowingly entered on the premises of the Johnson & Hardin
Co. . . . contrary to and in violation of section 130.04
criminal trespass of the Fairfax Code of Ordinances a minor
misdemeanor.’’4 The three gentlemen named never entered
Respondent’s premises proper, but confined their activity to
the easement.
B. Discussion and Conclusions
The Board recently held in Jean Country5 that, as the first
step in analysis of conflicts between property rights and Sec-
tion 7 rights:
[T]here is an initial burden on the party claiming the
property right to show . . . 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 interests.
By virtue of the easement in the warranty deed Respond-
ent has the right to freely traverse a path over the real prop-
erty of another, as described in the warranty deed, between
Respondent’s owned real estate and Red Bank Road. There
is no evidence any other rights in the property were granted
to Respondent. The mere fact Respondent elected to pave,
maintain, and beautify the area for comfort, convenience, and
aesthetic reasons, and treated it as if Respondent were the
owner in fee does not make it the owner of the real estate
or give it any greater interest in property than that conveyed
by the warranty deed.6 General Counsel cites Ohio Jurispru-
dence 3d, Section 53, page 456 (36 O.Jur.3d, § 53 (1982))
for the following proposition, in reliance on Wolf v. Roberts,
(CP) 30 O Ops 499, 420 OL Abs 449 (1945):
[T]he owner of an easement of way cannot prevent
even a trespasser from using the surface of such way,
if it does not impede his exercise of its use as a right
of way.
This holding is consistent with other persuasive authority ex-
plaining:
The possession of the owner of an easement over land
is held not to be sufficient to support an action of tres-
pass for an injury to or disturbance in the enjoyment of
the easement.7
The April 27 handbilling posed minimal, if any, inter-
ference with ingress and none with egress, and I conclude
that here, as did the employers in Polly Drummond
Thriftway,8 and Barkus Bakery,9 Respondent had a right to
use the property from which it excluded the union represent-
atives, but has no property right giving it control over that
real estate. Accordingly, I conclude that Respondent violated
Section 8(a)(1) of the Act by excluding union organizers
from the easement and by filing complaints against them in
Mayor’s Court, Village of Fairfax, Hamilton County, Ohio,
for criminal trespass for distributing union handbills to em-
ployees on the easement.
CONCLUSIONS OF LAW
1. Respondent Johnson & Hardin Co. is an employer en-
gaged 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 preventing union representatives from distributing
literature to its employees on the easement leading to its
property, and by filing complaints of criminal trespass
against the union representatives in the Mayor’s Court, Vil-
lage of Fairfax, Hamilton County, Ohio, Respondent violated
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 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.’’
ORDER
The Respondent, Johnson & Hardin Co., Fairfax, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Preventing union representatives from distributing
union literature to its employees on the easement leading to
its property, and filing complaints of criminal trespass
against them because they engage in such conduct.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw the complaints of criminal trespass filed
against Harold Perry, Daniel Zeisler, and Anthony Arnold in
Mayor’s Court, Village of Fairfax, Hamilton County, Ohio,
notify them in writing that this has been done, and make
them whole for any legal expenses and/or fines incurred by
them as a result of such complaints.
(b) Post at its Fairfax, Ohio office and facilities copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by Respondent’s authorized agent shall
be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.