K Mart Corp.

National Labor Relations Board - Board Decisions

Nov 22, 1993

313 N.L.R.B. 50 (N.L.R.B. 1993)

50
313 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In his decision, the judge entered unfair labor practice findings
against the Unions involved in this proceeding in Cases 21–CC–
3140 and 21–CC–3142 and against Respondent K Mart in Case 21–
CA–28434. No exceptions were filed to the judge’s unfair labor
practice findings in Cases 21–CC–3140 and 21–CC–3142. Accord-
ingly, on June 22, 1993, the Board issued an Order adopting those
findings and severing those cases from the present case.
2 The Respondent does not except to the judge’s findings that it
violated Sec. 8(a)(1) of the Act on December 18, 1991, by
discriminatorily prohibiting representatives of the Unions from dis-
tributing handbills in front of its Covina, California store, by causing
the police to remove two handbillers from the premises, and by
causing the arrest of a consultant to the Unions. The Respondent
does except to having to post the judge’s ‘‘Notice to Employees’’
and requests that the Order of the judge be modified by deleting the
requirement that the Respondent post any notice to its employees or,
alternatively, that the language of the notice be changed. We find
that the judge’s recommended Order and notice to employees are
consistent with those orders and notices entered by the Board in
similar cases, and we find no basis to depart from such use in this
case. See Sentry Markets, 296 NLRB 40, 44 (1989), and Mountain
Country Food Store, 292 NLRB 967, 969 (1989). In this regard, we
note that the Respondent violated Sec. 8(a)(1) at this site by interfer-
ing with Sec. 7 rights. The notice simply summarizes what Sec. 7
rights are, and says that the Respondent will not engage in the pre-
cise conduct involved here or in any like or related conduct.
1 K Mart filed the charges in Cases 21–CC–3140 and 21–CC–3142
on October 29 and November 20, 1991, respectively. The District
Council filed the charge in Case 21–CA–28434 on December 20,
1991. The operative consolidated complaint issued on May 29, 1992.
K Mart Corporation and Los Angeles County and
Vicinity District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 21–CA–284341
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 4, 1993, Administrative Law Judge Richard
J. Boyce issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a reply brief, and the Respondent filed
a brief in reply to the General Counsel’s.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, K Mart Corporation, Co-
vina, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Peter Tovar, Esq., for the General Counsel.
Thomas R. Fredericks and Leroy D. Westmoreland, Esqs., of
Covina, California, for K Mart.
John T. De Carlo, Esq., for the District Council and Local
1506.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this consolidated matter in Los Angeles, California, on July
21–23, 1992.
The complaint alleges that the Los Angeles County and
Vicinity District Council of Carpenters, United Brotherhood
of Carpenters and Joiners of America, AFL–CIO (District
Council) and Carpenters Local Union No. 1506, United
Brotherhood of Carpenters and Joiners of America, AFL–
CIO (Local 1506) violated Section 8(b)(4)(ii)(A) and (B) of
the National Labor Relations Act (Act) on about October 26
and November 16, 1991; and that K Mart Corporation (K
Mart) violated Section 8(a)(1) of the Act on December 18,
1991.1
FINDINGS OF FACT
I. JURISDICTION
K Mart has retail stores throughout the United States. The
parties have stipulated and I find that it is an employer en-
gaged in and affecting commerce within Section 2(2), (6),
and (7) of the Act; and that it is an ‘‘employer’’ and a ‘‘per-
son’’ for purposes of Section 8(b)(4)(A) and (B), respec-
tively.
The parties also have stipulated and I find that Greg Con-
struction (Greg) and Kuhler Corporation (Kuhler) are con-
tractors in the construction industry, and that each is a ‘‘per-
son’’ for purposes of Section 8(b)(4)(B).
II. LABOR ORGANIZATION
The parties have further stipulated and I find that the Dis-
trict Council and Local 1506 (jointly Unions) are labor orga-
nizations within Section 2(5) of the Act.
III. THE ALLEGED VIOLATIONS OF SECTION 8(B)(4)
A. Allegations
The complaint alleges that the Unions violated Section
8(b)(4)(ii)(A) and (B) on October 26, 1991, by engaging in
coercive and threatening conduct at K Mart’s Covina store,
including the blocking of ingress and egress and the display
of banners, in furtherance of their disputes with Greg and
Kuhler.
The complaint further alleges that the Unions violated Sec-
tion 8(b)(4)(ii)(A) and (B) on November 16, 1991, by engag-
ing in coercive and threatening conduct at K Mart’s Fontana
store, including the display of banners and marching in front
of the store, in furtherance of their disputes with Greg and
Kuhler.
51K MART CORP.
2 The parties stipulated that 50 participated. The record otherwise
indicates that the number was somewhat greater.
B. Undisputed Evidence Relevant to Both Allegations
The parties have stipulated and/or the undisputed evidence
establishes that:
1. K Mart at relevant times had been refurbishing and en-
larging various of its stores in southern California. Greg and
Kuhler, both nonunion, were among the contractors engaged
in this undertaking.
2. Neither Greg nor Kuhler had performed work at the Co-
vina or Fontana stores. Indeed, neither store had undergone
refurbishment or expansion at any time proximate to the
Unions’ alleged misconduct.
3. The Unions have had a labor dispute with Greg and
Kuhler since at least April 1991. They have not had a labor
dispute with K Mart at any relevant time.
4. On about April 17, 1991, the Unions demanded that K
Mart agree to use only general contractors who used union
carpenters on K Mart projects. On about October 25, 1991,
the Unions demanded that K Mart agree to direct all general
contractors on those projects to use only union carpenters. K
Mart did not accede to these demands.
C. The Events of October 26
The Unions held a demonstration in the parking lot and
sidewalk area outside the Covina store on October 26. It
lasted from about 9 a.m. to noon. At least 50 people partici-
pated.2
A number of them wore blue jackets bearing union logos,
and one wore a rat costume bearing the label ‘‘K Mart.’’
The Covina demonstration contained these elements:
1. A skit. A skit, presented two, perhaps three, times, con-
veyed the implication that K Mart did not provide adequate
health care coverage for its employees. The parties stipulated
that the skit took this form:
One person was dressed as a nurse; another was dressed
as a doctor; a third person depicted a parent; and the
fourth person played the role of the parent’s child. The
actor playing the role of the doctor asked the parent if
he could help the parent and the child. The parent stat-
ed that he wanted to receive some medical attention for
his child; that the child was injured. The doctor asked
the parent if he had health-care coverage. The parent
said no, that he did not. Those assembled watching the
skit made a loud ‘‘oo’’ sound as he said this. The doc-
tor said that he would not be able to provide medical
attention without insurance coverage.
One of the actors wore a sign identifying him as ‘‘K Mart
Corporate Manager.’’ The skit was presented on the sidewalk
fronting the store, some 25 feet from the entrance/exit doors,
and substantially if not totally precluded use of the sidewalk
for its intended purpose during presentation.
2. A structured question-and-answer exercise. Using a
bullhorn, John Richardson, a consultant to the Unions and
the demonstration organizer, led the participants in a ques-
tion-and-answer sequence during each skit presentation.
Among the questions he asked and they answered were
these:
Q. Is this what we want?
A. No!
Q. Who’s to blame?
A. K Mart!
Q. Why are we out of work?
A. K Mart!
Q. What’s the problem?
A. K Mart!
Q. What’s the solution?
A. Union!
3. Chanting. The demonstrators chanted from time to time:
‘‘K Mart No! Union Yes!’’
4. Handbilling. Some of the demonstrators distributed
handbills, in English and Spanish, to prospective customers.
The handbills stated:
What if your child was seriously ill, but you had no
health insurance? You would take your child to the hos-
pital.
Many of the construction workers building and re-
modeling K-Mart’s stores in southern California would
take their children to the hospital too. But some of the
construction workers employed by contractors hired by
K-Mart Corporation don’t have health insurance.
We all agree that money is less important than a
child’s life. Also, we know that medical costs are sky-
rocketing. That’s the tragedy. The child’s life is saved,
and the family is threatened with losing their home and
everything they own to pay the bill.
And what happens if the entire medical bill can’t be
paid? The people with insurance pay—they pay extra to
cover the bills of the uninsured. It’s called uncompen-
sated care.
You see, K-Mart isn’t a good value for shoppers in
this community. Please, shop elsewhere, where respon-
sibility and community interest prevail.
STOP THIS ABUSE
DON’T SHOP AT K-MART!
THANK YOU!
THE MEMBERS OF CARPENTERS LOCAL 1506
The handbills included this language, in small print, at the
bottom:
Our dispute is with Greg Construction, Cochrun Con-
struction and Kuhler Corp. We are appealing only to
the public—the consumer. We are not seeking to induce
any person to cease work or refuse to make deliveries.
5. Balloons. Helium-filled balloons, inflated at a van in the
store’s parking lot, were distributed to demonstrators and
prospective customers. Some of the balloons bore a circle
and a diagonal slash—the international symbol of prohibi-
tion—superimposed on the word ‘‘K-Mart.’’ The reverse side
of these same balloons bore this legend:
We are appealing only to the public, the consumer. We
are not seeking to induce any person to cease work or
refuse to make deliveries. Carpenters Local 1506.
Other balloons contained the circle and slash superimposed
on a rat depicted as salting and chewing a hardhat.
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Led by the Unions’ counsel, Richardson testified that he did not
see any blocking of entrances or exits by the demonstrators. He else-
where conceded, however, that ‘‘at least four to six’’ handbillers
were always ‘‘in front of the door’’; that some of the handbillers
were ‘‘directly in front of the glass doors’’ contrary to his instruc-
tions; and that ‘‘on a couple of occasions [he] had them move out
of the way.’’
4 The parties stipulated that 75 to 100 participated. As in the case
of the Covina demonstration, the record otherwise suggests that the
number was somewhat larger.
Those receiving the balloons held them aloft with string.
A few escaped inside the store, rising to the ceiling.
6. Banners. Four banners were displayed from fixed posi-
tions in the parking lot, each at least 50 feet from the store
entrance. One, measuring about 3 by 6 feet, stated: ‘‘Car-
penters Local 1506.’’ The other three, each approximately 3
by 12 feet, contained one or the other of these messages:
(a) K Mart Ignores the Health Care Needs of Their
Own Workers.
(b) K Mart is Unfair to American Workers.
(c) K Mart President Makes $1,313,009.00/Year!
Near rally’s end, Richardson introduced himself to Oscar
Benson, regional manager of K Mart’s west central region.
Benson, testifying credibly and without contradiction, de-
scribed the attendant conversation this way: Benson told
Richardson he should make sure the participants ‘‘stood off
to either side of the front doors’’; that it was ‘‘a fire safety
issue.’’ Richardson responded that the rally would be
‘‘breaking up shortly, anyway,’’ and that the rally ‘‘wasn’t
about the store . . . [but] . . . about the awarding of con-
tracts.’’
Richardson then stated that he had ‘‘tried to contact’’ Jim
Godwin, K Mart’s regional construction manager, ‘‘many
times,’’ but that Godwin would not ‘‘meet with’’ him. Rich-
ardson added: ‘‘If you’ll just sit down with us, I’m certain
we can resolve these issues.’’ Benson came back that he was
not ‘‘involved in construction issues,’’ and Richardson ‘‘re-
peated several times’’ that he was ‘‘certain’’ that K Mart and
the Unions ‘‘could resolve [their] differences’’ if they would
‘‘just sit down.’’
Benson declared with reference to the one banner that the
salary of K Mart’s president was low relative to his respon-
sibilities, and Richardson conceded, based on his knowledge
of executive salaries as reported in Fortune Magazine, that
K Mart’s president was not overpaid. Richardson went on:
You have to understand, this is strictly PR. Besides the
emotion of the Carpenters, this is just business. We’re
just trying to make a statement. We’re going to dem-
onstrate in front of . . . a different K Mart every week
until such time as you sit down with us, and we have
42,000 members in southern California. We can paint
a picture of K Mart any way we want—very favorable
and positive, or negative. Our people shop K Mart and
they’ll continue to shop K Mart, and we can promote
your company rather than have them shop elsewhere if
you’ll just sit down with us and work with us.
Benson repeated that he ‘‘wasn’t a construction representa-
tive,’’ and Richardson stated: ‘‘I know, but you can get my
message to Mr. Godwin and the people who are in construc-
tion.’’ The exchange ended on that note, and the rally shortly
ended, as well.
Benson further credibly testified that, finding about 20
demonstrators clustered in the store’s entrance/exit area early
in the demonstration, he asked them to ‘‘vacate the area di-
rectly in front of the exit and entrance doors, as these were
fire exits and this was a safety issue.’’ Benson added that
they complied.
Perhaps 30 to 45 minutes later, according to Benson, he
again asked some 10 to 15 demonstrators, who were distrib-
uting handbills, ‘‘to vacate the area immediately in front of
the doors.’’ He told them they ‘‘could stand on either side
and pass out their leaflets,’’ he recalled, and they complied.3
Benson also testified that he saw one family, which had
been approaching the store, turn around and leave after being
spoken to by two men, one in a union jacket. He testified,
as well, that a female customer with two small children
asked him if it was safe to leave the store. He assured her
that the demonstrators ‘‘were noisy but nonviolent,’’ he con-
tinued, and she declined his offer to escort her to her car.
D. The Events of November 16
The Unions held a demonstration in the parking lot outside
the Fontana store on November 16. It lasted from about 10
a.m. to noon, and 75 to 100 people participated.4 As before,
some wore jackets and/or caps displaying union logos, and
someone masqueraded as a rat.
The Fontana demonstration contained these elements:
1. Handbilling. Between four and eight demonstrators dis-
tributed handbills to customers from positions on either side
of the entrance/exit doors. In addition, some 10 to 20 dem-
onstrators tendered handbills to the occupants of vehicles as
the vehicles entered and moved about in the parking lot. The
handbills were identical to those distributed during the Co-
vina demonstration.
2. Banners. The four banners used in the Covina dem-
onstration again were displayed from fixed positions, each 50
feet or so from the store entrance. The three banners specifi-
cally referring to K Mart had been modified since the Covina
demonstration to include this language at the bottom in small
print:
Our dispute is with Gray Construction, Cochrun Con-
struction, and Kuhler Corporation. We are appealing
only to the public, the consumer. We are not seeking
to induce any person to cease work or refuse to make
deliveries.
3. Parading. At both the beginning and the end of the
demonstration, the demonstrators aligned themselves in an
oval and paraded in the parking lot. This took place about
60 feet from the store entrance.
4. Chanting. While parading, the demonstrators, led by
Richardson with his bullhorn, chanted such sentiments as
‘‘Don’t Shop K Mart’’ and ‘‘Go to Target.’’ They also dis-
played the handbills and waved small American flags while
parading.
5. A massed rally. At about 11 a.m., the demonstrators
congregated for 15 to 20 minutes at the front of the store
about 15 feet away from the entrance. The crowd filled the
sidewalk, preventing its intended use, and spilled into the fire
lane beyond the curb. Richardson conducted a raffle—involv-
53K MART CORP.
5 To which Hunt replied that it did, and that the demonstration was
aimed at contractors.
6 Extracting from Carpenters District Council of Northeast Ohio
(Alessio Construction), 310 NLRB 1023 (1993): ‘‘An agreement is
unlawful under Section 8(e) of the Act if (1) it is an agreement of
a kind described in the basic prohibition of that section—e.g., an
agreement to cease doing business with another person, (2) it has
secondary, as opposed to primary, work preservation objectives, and
(3) it is not saved by coming within the terms of the construction
industry proviso to Section 8(e).’’ That proviso exempts agreements
between unions and employers ‘‘in the construction industry’’—
which K Mart is not—from 8(e) illegality. See generally ‘‘Woelke
& Romero Framing v. NLRB,’’ 456 U.S. 645, 652–660 (1982);
NLRB v. Longshoremen ILA, 447 U.S. 490, 503–504 (1980); Connell
Co. v. Plumbers Local 100, 421 U.S. 616, 635 (1975).
7 This was particularly so during the Covina rally, in which the
Unions so pointedly targeted K Mart as the object of their displeas-
ure. Weighed against the aggregate of the Unions’ conduct during
the rallies, I do not see the inclusion of the qualifying language at
the bottom of the handbills, and at the bottom of the banners during
the Fontana rally, as exonerative.
8 The picketing in NLRB v. Fruit Packers, 377 U.S. 58 (1964),
which the Court held not to be of a secondary nature, is distinguish-
able from the conduct in question. That picketing, although at the
neutral Safeway’s stores, was intended to influence consumers not
to purchase the primary’s produce there. Here, on the other hand,
the primaries supplied no product sold in either store, which pre-
cludes any claim that the Unions sought only to persuade customers
not to purchase such a product. See DeBartolo Corp. v. Florida Gulf
Coast Building Trades Council, 485 U.S. 568, 577 (1988).
ing shirts, hats, tool belts, etc.—during this phase of the
demonstration.
The parking lot in which this demonstration took place
serves several businesses in a shopping center. Gary Hunt,
the general manager of the Fontana store, testified credibly
and without contradiction that the center was especially busy
on November 16, a Saturday; that the tender of handbills to
vehicle occupants caused some traffic backup and disruption;
that the ‘‘rat’’ also caused disruption from time to time by
laying down in the path of traffic in the lot; that, while the
demonstrators’ parading did not disrupt vehicular traffic, it
did interfere with the retrieval of shopping carts by store at-
tendants, causing a shortage inside the store; and that cus-
tomers sometimes were discouraged from getting carts be-
cause demonstrators were sitting or leaning on them while
holding up one of the banners.
Hunt also credibly testified that a customer, handbill in
hand, told him during the demonstration that K Mart should
provide health care coverage for its employees;5 and that a
female customer with two children stuck her head in the
store after the crowd had dispersed and asked him, ‘‘Is it
safe to come in now?’’
E. Conclusions
I conclude that the Unions violated Section 8(b)(4)(ii)(A)
and (B) as alleged during the demonstrations at the Covina
and Fontana stores on October 26 and November 16, respec-
tively.
My reasoning:
(a) In point of law, and as stipulated by the parties, K
Mart was a neutral to the dispute involving the Unions, Greg,
and Kuhler.
(b) The Unions’ conduct during the rallies went beyond
peacefully imparting their message to customers; indeed, the
totality of their conduct—which might fairly be deemed pick-
eting despite the absence of conventional picket signs—im-
posed economic pressure that necessarily ‘‘threaten[ed],
coerce[d], or restrain[ed]’’ K Mart within the meaning of
clause (ii) of Section 8(b)(4). Mine Workers (New Beckley
Mining), 304 NLRB 71 (1991). See also Associated General
Contractors v. NLRB, 514 F.2d 433, 438 (9th Cir. 1975);
Sheet Metal Workers v. Hardy Corp., 332 F.2d 682, 686 (5th
Cir. 1964).
(c) Objects of the Unions’ 8(b)(4)(ii) conduct on the two
occasions were to force or require K Mart to enter into an
agreement prohibited by Section 8(e)6 and to cease doing
business with Greg and Kuhler, thus bringing that conduct
within the prohibitions of subsections (A) and (B), respec-
tively.
That the Unions had a proscribed subsection (A) object is
revealed by their demand of April 17 that K Mart agree to
engage only contractors who used union carpenters; by their
demand of October 25—the day before the Covina rally—
that K Mart agree to direct all contractors on its projects to
use only union carpenters; and by various of Richardson’s
comments to K Mart’s Benson during that rally—all in the
context of his prefatory statement that the rally was ‘‘about
the awarding of contracts.’’ E.g., Teamsters Local 282 (D.
Fortunato, Inc.), 197 NLRB 673, 678–679 (1972).
The presence of a proscribed subsection (B) object is
shown by the absence of Greg and Kuhler, then and always,
from the rally sites (Sailors Union (Moore Dry Dock), 92
NLRB 547, 549 (1950); by the Unions’ failure to disclose
clearly that their dispute was with the primaries, not K Mart
(Ibid.);7 and by the inability of the customers to whom the
Unions’ appeal was directed to honor that appeal other than
to withhold patronage generally—as, indeed, the Unions
urged them to do—from K Mart.8
IV. THE ALLEGED VIOLATIONS OF SECTION 8(A)(1)
A. Allegation
The complaint alleges that K Mart violated Section 8(a)(1)
on December 18, 1991, by causing the removal of two union
agents from its property and the arrest of another who had
been handbilling outside the Covina store.
B. Evidence
Starting in the summer of 1991, the Unions occasionally
distributed the previously described handbills at various K
Mart stores, including that in Covina, in furtherance of their
dispute with Greg and Kuhler.
The Covina handbilling generally had been without inci-
dent. That all changed on December 18, however, when Den-
nis Mason, the store’s merchandise manager, thrice sum-
moned the Covina police in connection with that day’s
handbilling. At K Mart’s behest, the police ordered
handbillers Walter DeCroix and Keith Floyd off the property
on the second visit, and took John Richardson into custody
on the third, after Mason had placed him under citizen’s ar-
rest. Richardson, as earlier related, was a consultant to the
Unions.
DeCroix and Floyd began handbilling at the Covina store
at about 9 a.m. on 18 December. They stood on either side
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Mason testified that the police response was ‘‘very quick.’’
10 DeCroix testified that the customer started it all by calling Floyd
an ‘‘asshole’’ and telling him to ‘‘get a fucking job.’’ Floyd, as indi-
cated, recalled the customer’s instead calling him a son-of-a-bitch,
and asking why he did not get a real job.
11 DeCroix first testified that Floyd did not use ‘‘cuss words,’’
later conceding that he ‘‘might have said ‘fuck you’ to the cus-
tomer.’’ Floyd denied saying that.
of the entrance/exit doors, proffering the handbills to cus-
tomers as they passed by. DeCroix had handbilled at the Co-
vina store several times before. Floyd had handbilled at K
Mart stores previously, but not at Covina.
Mason called the police the first time at about 9:40 a.m.
He testified that, having been paged by Margie Wilkerson,
the service-desk attendant, about ‘‘a disturbance at the front
of the store,’’ he went to that area and saw Floyd and an
unidentified customer to the left of the entrance doors.
Mason went on:
I saw Mr. Floyd’s back to me . . . and both of them
were approximately eight inches to a foot apart with
their fingers pointing in each other’s faces approxi-
mately six inches apart.
Mason admittedly could not hear what Floyd and the cus-
tomer were saying, but, asked his ‘‘impression of the char-
acter of the conversation,’’ he testified: ‘‘Very threatening.’’
The customer did not complain to management about the in-
cident, and Mason made no attempt to learn his identity.
Mason testified that James Sylvester, assistant store man-
ager, observed the incident with him. Sylvester did not tes-
tify.
Thomas Fredericks, K Mart’s labor relations counsel, testi-
fied that Mason called him, reporting ‘‘an altercation be-
tween a handbiller and a customer in front of the store,’’ and
that he instructed Mason to call the Covina police. Fredericks
particularized concerning Mason’s report:
He told me, I believe, [that] Renell overheard . . . the
remarks made by the handbiller to the customer, and
that the remarks were, ‘‘Fuck you.’’
‘‘Renell’’ is Renell Vejvoda, a secretary in K Mart’s re-
gional office. She testified that she never spoke with Mason
regarding the incident, and he testified that he not only could
not recall talking to her about it, but that he could not re-
member how he learned that she had witnessed it.
Regardless, Vejvoda testified that she observed the inci-
dent while approaching the exit door after being in the store
on break. Her account:
I observed a customer, older man, coming in the store.
He was halfway in the door, and one of the handbillers
yelling at him, and I just—he was cussing at him . . . .
He [the handbiller] directly said, ‘‘Fuck you.’’ . . . I
then told the service-desk lady that she’d better get
some management people up here ’cause there might be
trouble.
Vejvoda testified that the handbiller and the customer were
maybe ‘‘a foot’’ apart; that the handbiller ‘‘was very abrupt
and loud’’; that, while the handbiller made remarks in addi-
tion to ‘‘fuck you,’’ they did not register with her because
she was ‘‘in shock’’; and that she did not hear the customer
say anything.
Mason called the police as Fredericks had directed, report-
ing ‘‘the possibility of a fight right outside our front doors.’’
Floyd and the customer were still engaged when two officers
arrived.9 One of the officers, Robert Macias, testified that
they were ‘‘talking loudly to each other’’ when he and his
partner, Dennis Tinnel, walked by on their way inside.
Once inside, Macias testified, the two officers spoke with
a management representative he identified as Sylvester. Ma-
son’s recital suggests, however, that he, not Sylvester, spoke
with the officers. In any event, one or the other called the
officers’ attention to the ongoing encounter between Floyd
and the customer, as Macias recalled, said the store also
‘‘had received complaints from customers that the
handbillers were bothering them as they were going in and
out of the store,’’ and asked the officers to ‘‘advise’’ the
handbillers ‘‘that they [could] continue to stay there and
hand out handbills if they did not cause any more problems
or disturb the customers at all.’’
Macias continued that, after speaking with Sylvester, he
and Tinnel ‘‘advised’’ the handbillers that management had
said they ‘‘could remain there if they did not disturb the cus-
tomers or were not involved in any more arguments with the
customers.’’ Floyd’s encounter with the customer by then
had ended. Both he and Floyd told the officers it was ‘‘just
a misunderstanding,’’ to which Floyd added that there would
be ‘‘no more problems.’’ The officers then warned that they
would ask DeCroix and Floyd to leave should they be called
back because of customer complaints.
Floyd testified that the incident had its genesis when the
customer began to enter the store after accepting a handbill,
turned around, came back toward him, threw the handbill to
the ground, and verbally abused him. Floyd recalled the cus-
tomer’s saying, among other ‘‘derogatory’’ remarks: ‘‘Why
don’t you bums get a real life, you son-of-a-bitch?’’ Floyd
rejoined, as he recalled:
Excuse me, sir. You don’t have to talk to me in that
manner. I am not a bum. I do have a real job, and . . .
you don’t call me a son-of-a-bitch.
The exchange continued in this vein for perhaps ‘‘three or
four minutes,’’ according to Floyd, with both men speaking
in raised voices, after which the customer ‘‘kind of like
calmed down’’ and they talked in a conversational tone ‘‘like
two guys standing on the corner’’ for another several min-
utes. The customer eventually entered the store, and Floyd
did not see him again. Floyd estimated that he and the cus-
tomer were about 2 feet apart during the incident. They did
not touch.
DeCroix, nearby as the incident unfolded, likewise testi-
fied that the customer instigated it by insulting Floyd;10 that
they then ‘‘started arguing back and forth’’; and that, after
‘‘yelling at each other’’ for ‘‘about four minutes,’’ they
‘‘more or less made up . . . [and] . . . got along great.’’
DeCroix recalled that the two were ‘‘face to face, six inches
apart,’’ during the initial unpleasantness.11
Mason next called the police at about 11:30 a.m. Asked
his reason, he testified:
55K MART CORP.
12 Mason testified that the police response was less prompt this
time. 13 The service desk is near the doors.
I personally received two customer complaints on the
handbillers, and was also up front at the service desk
when Mr. Floyd walked into our store approximately 25
feet and removed handbills from our garbage can.
Mason testified that, after receiving the two complaints
and seeing Floyd retrieve the handbills, he called Fredericks,
who ‘‘recommended that we go ahead and call the police.’’
Fredericks recalled Mason’s report this way:
[H]e told me the police had come out the first time,
that the police had warned the handbillers not to engage
in further confrontations with our customers, and that
since that time he’d received customer complaints with
regard to handbillers forcing the customers to take
handbills . . . . I believe one customer complaint was
that a customer told him the handbiller was out of con-
trol. He also related to me that he had personally ob-
served the same handbiller who had been involved in
the altercation with the customer come into the store,
reach into a garbage can inside the store, take handbills
out of the garbage can, dust them off, and go back out-
side. And I believe he asked me what to do.
Mason also reported, according to Fredericks, that he
personally [had] observed the handbiller jumping in
front of customers, blocking customers’ paths, [and]
forcing customer[s] with handbills . . . .
Fredericks went on that he told Mason to call the police,
adding: ‘‘I believe he asked me whether he could tell the po-
lice to have the handbillers leave, and I told him, yes, he
could.’’
Fredericks did not ask Mason to obtain the names of the
complaining customers. He testified that it is not ‘‘good busi-
ness’’ to involve customers in the store’s ‘‘legal matters.’’
Two officers, Hugh Clark and Richard Hastert, eventually
arrived.12 Mason testified that both he and Sylvester spoke
with them; and that, after he recounted the incident between
Floyd and the customer that had prompted the earlier call
(which the officers said they knew about), he told them
about the more recent developments—the two customer com-
plaints and Floyd’s sortie to the garbage can—and asked that
they remove the handbillers from the premises.
The officers obliged, telling DeCroix and Floyd they
‘‘weren’t allowed on the property and . . . to feel free to
[handbill] out on the public sidewalk.’’
DeCroix then phoned Richard Green, a business agent in
charge of handbilling at the Covina store, reporting this de-
velopment. Green said he would be out. DeCroix and Floyd
meanwhile situated themselves on the public sidewalk along-
side a driveway into the store parking lot, where they at-
tempted to handbill incoming vehicles. Green testified that
effective handbilling was physically ‘‘almost impossible’’ in
this circumstance.
Mason elaborated concerning one of the customer com-
plaints:
I had one gentleman, probably in his mid-40s, come up
to me and say, ‘‘This guy out here is out of control.’’
And I said, ‘‘Who are you talking about?’’ And he
pointed out to Mr. Floyd and said, ‘‘He had a handbill,
and he shoved it right into my face and said, ‘Take one
of these.‘’’
Mason later testified, contrary to this testimony, that the
customer did not single out the offending handbiller.
Regarding the other customer complaint, Mason tes-
tified: ‘‘I had one elderly lady, probably mid-50s,
[who] said that a handbiller had walked over and stuck
a flyer into her face.’’ Mason testified that the lady did
not identify the handbiller.
After the lady’s complaint, Mason recounted, he remained
in the service-desk area for ‘‘approximately five minutes’’
observing the handbillers’ activities.13 He testified that he
saw Floyd ‘‘blocking the path to the front door while he was
trying to pass out leaflets.’’ Mason added that Floyd was
‘‘continually moving,’’ and sometimes moved in front of the
doors. Mason testified that he also saw Floyd
going towards the customer in front of the front door
and putting a handbill close to a lot of the people’s
faces; not everybody, but some of the people.
Both DeCroix and Floyd denied ever forcing handbills on
customers or blocking their paths. DeCroix testified that, if
a customer declined his proffer, he simply said, ‘‘Thank
you,’’ and that was the end of it. Similarly, Floyd testified
that he would say, whether or not a customer accepted a
handbill: ‘‘Thank you and have a good day.’’
Floyd admittedly retrieved handbills from the garbage can
in one instance when he and DeCroix ran out. As against
Mason’s assertion that he and Fredericks later measured the
distance, finding the can to be 25 feet inside the doors, Floyd
averred that it was no more than 2 to 3 feet beyond the
doors. Floyd further testified that the retrieval took ‘‘maybe
five seconds . . . just long enough for the doors to open,
reach right there, pick them up, and step back outside.’’
K Mart had installed the can expressly for the discard of
the handbills. It did not object to the handbillers’ entering the
store to use the restroom or patronize the cafeteria, which
they sometimes did. DeCroix testified handbillers never be-
fore had retrieved handbills from the can because store em-
ployees had done it for them.
Although conceding that Floyd’s entering the store on this
occasion did not cause a disturbance, Mason deemed it unac-
ceptable. He explained:
I just felt it unnecessary to walk into our store and take
out the leaflets that they are boycotting our store, and
then re-use them in order to hurt our business. I felt
that part disruptive.
Mason called the police yet again, at about 1:30 p.m., after
DeCroix, Floyd, and a third person, Freddie Lopez, had
begun handbilling anew at the entrance/exit doors. Both
Green and Richardson had come to scene upon hearing of
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Mason later testified that he had received no customer com-
plaints after the handbillers returned to the front of the store. Asked,
then, if complaints had been relayed to him, he testified: ‘‘I believe
so.’’ Next asked by whom, he answered: ‘‘I’m not positive.’’
15 On cross-examination, Fredericks was notably tentative regard-
ing this conversation. He testified that he did not ‘‘recall the exact
words of the conversation at all,’’ adding: ‘‘I think I asked him to
describe, and I believe he did describe . . . when the customer
would walk up, they’d stand in front of the customer to pass out
a handbill.’’ Asked if Mason elaborated concerning the customer
complaints, he testified: ‘‘I don’t recall him elaborating on it . . . .
He may have . . . . I don’t recall . . . having asked him additional
questions about customer complaints.’’ Next asked if he questioned
Mason regarding what the customers had said, he testified: ‘‘I don’t
recall. I may have . . . . I don’t recall the entire extent of his de-
scription of the customer complaints to me.’’ Fredericks further testi-
fied, during this sequence: ‘‘I don’t recall . . . [that] . . . he gave
me a description of the vehicle’’ in the fire lane.
16 Mason testified that he could not recall mentioning it, and that
he did not know if Sylvester did.
17 Officer Hastert testified that Officer Clark ‘‘did most of the talk-
ing’’ on behalf of the police. Clark did not testify.
the ejection, and Richardson told them to return to the front
of the store.
The service-desk attendant, Wilkerson, informed Mason of
the resumed activity at the doors. Wilkerson further reported,
according to Mason, that she had received ‘‘quite a few cus-
tomer complaints’’ about the handbillers, leading him to sur-
mise that they now ‘‘were a lot more aggressive toward the
customers.’’14
Wilkerson did not testify.
Mason testified that, going to the service desk upon get-
ting Wilkerson’s page, he ‘‘noticed’’ that the handbillers’
‘‘behavior was much more aggressive.’’ He elaborated:
The one I particularly watched was Mr. Floyd, and he
was more or less not just walking to the people, but
kind of bounding around, jumping at people to make
sure he got everybody that walked in.
Mason continued, led by K Mart’s counsel, that Floyd was
‘‘positioning himself’’ to block the path of patrons. Mason
enlarged that Floyd ‘‘tried to get right in front of’’ customers
approaching the doors; that he ‘‘positioned himself more or
less right in the middle of both the double doors, and he was
trying to catch people going in both sides.’’
Mason first testified that, after watching this for from 30
seconds to a minute, he reported to Fredericks that the
handbillers had returned, and that ‘‘one in particular was a
lot more aggressive’’; and that Fredericks told him to ‘‘go
ahead and call the police.’’ Mason later testified that he was
‘‘not sure’’ if he spoke with Fredericks before calling the po-
lice.
Fredericks recounted Mason’s reporting that the
handbillers had returned, that they were ‘‘more aggressive’’
than before, and that ‘‘more customer complaints’’ had been
lodged about them. Mason also reported, according to Fred-
ericks, that the handbillers ‘‘had a vehicle parked in a fire
lane . . . that [they] were using as a supply wagon for their
leaflets’’; and that it ‘‘had been parked there for approxi-
mately 15 minutes.’’ Mason then asked him what to do,
Fredericks testified, and Fredericks ‘‘told him to call the po-
lice.’’15
Mason testified that he first ‘‘noticed’’ a car in the no-
parking/fire-lane zone fronting the store while waiting for the
police to respond to his third summons. Mason expanded:
I saw the hatchback on the vehicle up, and I saw one
case of handbills back there . . . . I did see one of the
handbillers grab leaflets out of that car, but I do not re-
member which one at this time.
Mason first testified that the car remained there ‘‘approxi-
mately five minutes,’’ later estimating the time at ‘‘approxi-
mately 15 minutes.’’ He could not recall its make, model, or
color—‘‘all I remember is that it was a hatchback, and that
the hatchback was open, facing north.’’ Mason conceded that
people ‘‘quite often’’ park in the fire lane to load, unload,
and wait for others.
As earlier noted, both DeCroix and Floyd denied ever
forcing handbills on customers or blocking their paths. In ad-
dition, Richardson, who had remained to observe after direct-
ing the handbillers to return to the entrance/exit doors, testi-
fied that they did not block the doors, force handbills on cus-
tomers, or otherwise engage in harassment. Wesley Jensen,
an official of the District Council who observed with Rich-
ardson, testified to the same effect.
As for the car supposedly parked in the fire lane to supply
the handbillers, DeCroix, Floyd, Richardson, Jensen, and
Green all denied that it happened.
The four officers who had answered one or the other of
the previous calls all responded to this latest call. They first
conferred with Mason and Fredericks inside the store. Officer
Macias recounted that Mason and Sylvester
said again that they were receiving complaints from
customers of the leafleters’ disturbing them while they
were entering the store, and they also said one of the
subjects—they didn’t identify him—said he kept enter-
ing the store and taking out leaflets that customers had
been throwing away.
Mason and Sylvester did not identify any of complaining
customers; nor did they ‘‘specify’’ how many complaints
they had received or the number of times handbillers had en-
tered the store to retrieve handbills. The record contains no
evidence that management mentioned the alleged fire-lane
abuse to the police.16
Macias testified that Mason and Sylvester then excused
themselves to confer with Fredericks; and, upon returning,
asked the officers ‘‘to advise’’ the handbillers ‘‘that they
would be placed under citizen’s arrest’’ if they did not leave.
One of the officers17 then told Richardson that the police had
received ‘‘several complaints’’ over the handbilling, that the
police ‘‘had been out to the location three times on the same
matter,’’ and that the handbillers ‘‘would be subject to citi-
zen’s arrest . . . if they did not leave . . . .’’
The officer also stated, according to Richardson, that ‘‘it
was unlawful to handbill by city ordinance’’; then ‘‘vacil-
lated a little bit’’ when Richardson asked which ordinance
that was.
Richardson responded, per Macias, that he had been ob-
serving the handbilling for ‘‘some time,’’ that he had not
seen any ‘‘problems,’’ and that he ‘‘would not tell them to
leave.’’ Macias recalled that he conveyed this to Mason, who
57K MART CORP.
18 Crediting Floyd’s and DeCroix’s uncontradicted accounts.
19 Even if, as seems likely, Floyd said ‘‘fuck you’’ to the customer
before the exchange assumed a more congenial tenor.
20 I seriously doubt, moreover, that K Mart officials honestly be-
lieved otherwise. Regardless, an ‘‘honest belief that the activity was
unprotected is not a defense if, in fact, the misconduct did not
occur.’’ Keco Industries, 306 NLRB 15 (1992). See also NLRB v.
Burnup & Sims, 379 U.S. 21, 23 (1964).
came back, ‘‘Okay then, we’ll place them under citizen’s ar-
rest.’’ With that, Richardson directed the handbillers to leave
to avoid arrest, then announced that he ‘‘would stay and con-
tinue to hand out leaflets.’’ The officers warned that he
would be ‘‘subject to arrest,’’ and he said he understood.
The three handbillers then left, with Richardson taking
their place. Fredericks, by now present, asked the officers the
‘‘procedure’’ to be followed to effect a citizen’s arrest, and
one of them replied: ‘‘[Y]ou need to approach them, verbally
tell them, ‘You’re under arrest for trespassing.’’’
Fredericks testified that, with Mason at his side, he then
engaged Richardson as follows:
I told Mr. Richardson that I wanted him to understand
what was going to happen, that if he didn’t leave the
K Mart premises Mr. Mason was going to tell him to
leave under penalty of being placed under citizen’s ar-
rest, and that the policeman was at that point in time
going to take him away. Mr. Richardson had told me
that he was peacefully handbilling and that he intended
to stay. I told Mr. Richardson that, earlier, a handbiller
had said ‘‘fuck you’’ to a K Mart customer, a
handbiller had entered our store and retrieved handbills
from our trash, and our customers were being harassed,
and the police were out for the third time because of
this conduct. I told Mr. Richardson that he should talk
to his people to verify that these events had occurred.
Mr. Richardson told me, ‘‘I don’t need to talk to my
people, and I’m not going to leave.’’ And at that point
I turned the matter over to Mr. Mason and left.
Mason told Richardson that he ‘‘would be subject a citi-
zen’s arrest’’ if he did not leave. Richardson continued to
handbill, asserting that he ‘‘had a right’’ to do so, and Mason
told him he was under citizen’s arrest. The police then read
him his Miranda rights, handcuffed him, took him to police
headquarters in a patrol car, booked him for trespass, and
placed him in a holding cell. He was released on his own
recognizance later in the day, and the district attorney chose
not to prosecute.
Fredericks testified that his decision to have Richardson
arrested derived from this reasoning:
The ultimate arrest of Mr. Richardson involved a vari-
ety of what I perceived as delinquent conduct by the
Union on the sidewalk of the K Mart store on Decem-
ber 18. My analysis of Mr. Richardson being arrested
was his defiance of the request from Mr. Mason to
leave the premises after the police had been out to the
store three times, after Mr. Mason had received com-
plaints from customers about the handbillers, after Mr.
Mason had personally observed the handbillers acting
delinquently and harassing our customers, including the
handbiller who I learned from Ms. Vejvoda’s knowl-
edge said ‘‘fuck you’’ to one of our customers. All of
those factors entered into my evaluation of the appro-
priateness of the citizen’s arrest . . . .
Officer Hastert testified that the police would not have
taken Richardson into custody absent the citizen’s arrest. He
explained: ‘‘[I]t’s a private-party situation. If they don’t want
them on their property, then it’s their obligation to arrest
them.’’
Various other activities were going on in front of the store
that day—a Salvation Army bellringer soliciting donations, a
celebrity-impersonator promoting a ballot initiative, and
someone seeking donations for a religious organization. The
record does not disclose if any of these activities entailed the
distribution of literature.
C. Conclusion
I conclude that K Mart violated Section 8(a)(1) as alleged
by causing the police to remove DeCroix and Floyd from the
premises incidental to the officers’ second visit, and by caus-
ing the arrest of Richardson on their third visit.
My reasoning:
(a) Barring disqualifying misconduct by the handbillers,
their activities were protected by the Act. Sears, Roebuck &
Co. v. Carpenters, 436 U.S. 180, 206 fn. 42 (1978);
Hardee’s Food Systems, 294 NLRB 642, 643 fn. 4 (1989);
Giant Food Markets, 241 NLRB 727, 728 (1979).
(b) The handbillers did not engage in disqualifying mis-
conduct.
The incident between Floyd and the customer that prompt-
ed the first police call was isolated, was provoked by the
customer’s verbal abuse of Floyd,18 did not cause the cus-
tomer to file a complaint, and ended amicably; hence,
Floyd’s part in it was not so egregious as to defeat the Act’s
protection.19 And, even if it were, K Mart ‘‘condoned’’ that
conduct in point of law by thereafter directing the police to
advise the handbillers that they ‘‘could remain there if they
did not disturb the customers or were not involved in any
more arguments with the customers.’’ Circuit-Wise, Inc., 308
NLRB 1091 fn. 2 (1992); White Oak Coal Co., 295 NLRB
567, 570 (1989).
Regarding the supposed misconduct triggering the second
police call, I am persuaded that misconduct did not happen.20
Mason’s testimony about two customer complaints—that one
had said a handbiller was ‘‘out of control’’ and another had
complained that someone ‘‘stuck a flier into her face’’—not
only was nonprobative hearsay, but was too nebulous to raise
more than a weak suspicion of misconduct.
In addition, I was and am unconvinced by Mason’s asser-
tions that he saw Floyd ‘‘blocking the path to the front
door’’ and ‘‘putting a handbill close to a lot of the people’s
faces.’’ This testimony likewise suffered from a lack of con-
crete elaboration, beyond which it was uncorroborated, was
cogently refuted by DeCroix and Floyd, and was undermined
by Mason’s less-than-compelling witness-stand demeanor.
Moreover, I do not view the Act’s protection as so flimsy
that Floyd’s retrieval of handbills from the garbage can
overrode it. This happened only once, took but a few sec-
onds, admittedly did not cause a disturbance, and was not all
that distinguishable in principle from the handbillers’ permis-
sibly entering the store to relieve themselves or buy a re-
freshment in the cafeteria.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Ibid.
22 Ibid. quoting from Sears, Roebuck & Co. v. Carpenters, supra,
436 U.S. 205. The Court also excepted that situation in which the
union ‘‘has no other reasonable means of communicating its organi-
zational message to the employees.’’ Ibid. This latter exception pre-
sumably does not obtain in the circumstances at hand. As the Ninth
Circuit stated with reference to it: ‘‘[W]e must hold that the excep-
tion applies when the nonemployee picketers are trying to reach em-
ployees, not customers. Here, the pickets and handbills were aimed
at the general public, not the employees. Therefore, the inaccessibil-
ity exception to the rule that an employer need not accommodate
nonemployee organizers does not apply.’’ John Ascuaga’s Nugget v.
NLRB, 968 F.2d 991, 997–998 (9th Cir. 1992).
23 As noted, the others were engaged, so far as the record shows,
in solicitation but not distribution; and the Board generally permits
greater employer restrictions on distribution than mere solicitation
because of ‘‘inherent differences’’ between the two. E.g., Eastex,
Inc., 215 NLRB 271, 274–275 (1974); Stoddard-Quirk Mfg. Co., 138
NLRB 615, 619 (1962). Nothing in the cited Board decisions dealing
with discriminatory access post-Lechmere suggests that the Board
accords significance to this distinction in the present context, how-
ever; and, in any event, K Mart caused the removal of the
handbillers not because they were handbilling as opposed to solicit-
ing, but because of their supposed misconduct while handbilling.
24 Interest shall be figured in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
As for the conduct allegedly prompting the third police
call, I am persuaded once more that the handbillers commit-
ted no offense removing their activities from the Act’s pro-
tection. Mason’s testimony that Wilkerson had reported
‘‘quite a few customer complaints’’ again was nonprobative
hearsay and hopelessly vague; and his further testimony that
the handbillers now were ‘‘much more aggressive’’—that
Floyd was ‘‘bounding around,’’ ‘‘jumping at people,’’ ‘‘posi-
tioning himself’’ to block the path of patrons, etc.—suffered
the same infirmities as his earlier recital—vagueness, lack of
corroboration, convincing refutation by DeCroix and Floyd
(not to mention Richardson and Wesley Jensen), and his own
ineffective performance under oath.
Finally, I do not credit Mason that the handbillers had
parked a car in the fire lane. Apart from the union witnesses’
convincing denials, Mason’s account lacked corroboration, he
was unable to supply any identifying particulars other than
that the car was a hatchback, his two estimates of how long
the car was so parked—first 5, then 15, minutes—were sus-
piciously discrepant, and Fredericks’ description of the con-
versation in which Mason supposedly reported this matter to
him was, as earlier observed, ‘‘notably tentative,’’ betraying
likely fabrication.
(c) While the Supreme Court held in Lechmere Inc. v.
NLRB, 112 S.Ct. 841 (1992), that the Act’s protections gen-
erally do not require an employer to ‘‘allow distribution of
union literature by nonemployee organizers on his prop-
erty’’21 (a principle that doubtless also applies to area-stand-
ards distributions by nonemployees, as in the present case),
the Court excepted that situation in which ‘‘the employer’s
access rules discriminate against union solicitation.’’22
Inasmuch as K Mart permitted others—the Salvation
Army, the promoter of a ballot initiative, someone seeking
donations for a religious organization—to solicit in front of
the store the same day it effected the ouster of the union
handbillers, this exception obtains; and for that reason K
Mart violated the Act as alleged. Great Scot, 309 NLRB 548
(1992); Richards United Super, 308 NLRB 201 (1992);
Davis Supermarkets, 306 NLRB 426 (1992).23
CONCLUSIONS OF LAW
In Cases 21–CC–3140 and 21–CC–3142, the District
Council and Local 1506, jointly, violated Section
8(b)(4)(ii)(A) and (B) on October 26 and November 16,
1991, by threatening, coercing, or restraining K Mart with an
object of forcing or requiring it to enter into an agreement
prohibited by Section 8(e) and to cease doing business with
Greg and Kuhler.
In Case 21–CA–28434, K Mart violated Section 8(a)(1) on
December 18, 1991, when it discriminatorily prohibited rep-
resentatives of the District Council and Local 1506 from dis-
tributing handbills in front of its Covina store, first, by call-
ing the police to remove them, and, second, by placing John
Richardson under citizen’s arrest and causing the police to
take him into custody and book him.
REMEDY
Having found that the District Council and Local 1506
violated Section 8(b)(4)(ii)(A) and (B) and that K Mart vio-
lated Section 8(a)(1), I will provide in my recommended Or-
ders that they cease and desist from their misconduct and
that they take certain affirmative action to effectuate the poli-
cies of the Act.
With regard to K Mart’s misconduct, that affirmative ac-
tion will include provisions that it notify the Covina Police
Department and the Covina Municipal Court in writing, copy
to Richardson, that the National Labor Relations Board has
determined that Richardson’s arrest on December 18, 1991,
violated the National Labor Relations Act; that it request in
writing, copy to Richardson, that said department and said
court expunge any and all records of that unlawful arrest;
and that it make Richardson, the District Council, and Local
1506 whole, with interest, for all reasonable legal fees and
expenses incurred as a result of the arrest.24
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
A. Respondents Los Angeles County and Vicinity District
Council of Carpenters, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, and Carpenters Local Union
No. 1506, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, their officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Threatening, coercing, or restraining K Mart with an
object of forcing or requiring it to enter into an agreement
prohibited by Section 8(e) and/or to cease doing business
with Greg Construction, Kuhler Corporation, or any other
person.
(b) In any like or related manner threatening, coercing, or
restraining K Mart or any other person in violation of Sec-
tion 8(b)(4)(ii)(A) or (B) of the Act.
59K MART CORP.
26 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.’’
27 See fn. 26, supra.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post in their business offices and meeting halls copies
of the attached notice marked ‘‘Appendix A.’’26 Copies of
the notice, on forms provided by the Regional Director for
Region 21 (in Spanish as well as English if deemed appro-
priate by the Regional Director), after being signed by an au-
thorized representative on behalf of the District Council and
Local 1506, shall be posted by them immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members cus-
tomarily are posted. The District Council and Local 1506
shall take reasonable steps to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of the notice to the Re-
gional Director for posting by K Mart, Greg Construction,
and Kuhler Corporation, should those firms so desire, at all
locations where notices to employees customarily are posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the District Council
and Local 1506 have taken to comply.
B. Respondent K Mart Corporation, Covina, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily prohibiting representatives of the Los
Angeles County and Vicinity District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO, and/or Carpenters Local Union No. 1506, United
Brotherhood of Carpenters and Joiners of America, AFL–
CIO, from distributing handbills in front of its store in Co-
vina, California, by demanding that they leave, by calling the
police to remove them, by placing them under citizen’s arrest
and causing the police to take them into custody and book
them, or in any other way.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify the Covina Police Department and the Covina
Municipal Court in writing, copy to John Richardson, that
the National Labor Relations Board has determined that
Richardson’s arrest on December 18, 1991, violated the Na-
tional Labor Relations Act; in writing, copy to Richardson,
request that said department and said court expunge any and
all records of that unlawful a rest; and make Richardson, the
District Council, and Local 1506 whole, with interest, for all
reasonable legal fees and expenses incurred as a result of the
arrest.
(b) Post at its store in Covina, California, copies of the at-
tached notice, marked ‘‘Appendix B.’’27 Copies of the no-
tice, on forms provided by the Regional Director for Region
21 (in Spanish as well as English if deemed appropriate by
the Regional Director), after being signed by K Mart’s au-
thorized representative, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees customarily are posted. K Mart shall take reasonable
steps 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 K Mart has taken to
comply.
APPENDIX A
NOTICE TO MEMBERS
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 vio-
lated the National Labor Relations Act, and has ordered us
to post and abide by this notice.
WE WILL NOT threaten, coerce, or restrain K Mart with an
object of forcing or requiring it to enter into an agreement
prohibited by Section 8(e) of the Act and/or to cease doing
business with Greg Construction, Kuhler Corporation, or any
other person.
WE WILL NOT in any like or related manner threaten, co-
erce, or restrain K Mart or any other person in violation of
Section 8(b)(4)(A) or (B) of the Act.
LOS ANGELES COUNTY AND VICINITY DIS-
TRICT COUNCIL OF CARPENTERS, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL–CIO, AND CARPENTERS
LOCAL UNION NO. 1506, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL–CIO
APPENDIX B
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 vio-
lated 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 representatives of
their own choice
To act together for mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discriminatorily prohibit representatives of
the Los Angeles County and Vicinity District Council of
Carpenters, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, and/or Carpenters Local Union No.
1506, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, from distributing handbills in front of
our store in Covina, California, by demanding that they
leave, by calling the police to remove them, by placing them
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
under citizen’s arrest and causing the police to take them into
custody and book them, or in any other way.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL notify the Covina Police Department and the Co-
vina Municipal Court in writing, copy to John Richardson,
that the National Labor Relations Board has determined that
Richardson’s arrest on December 18, 1991, violated the Na-
tional Labor Relations Act; WE WILL in writing, copy to
Richardson, request that said department and said court ex-
punge any and all records of that unlawful arrest; and WE
WILL make Richardson, the District Council, and Local 1506
whole, with interest, for all reasonable legal fees and ex-
penses incurred as a result of the arrest.
K MART CORPORATION