Lechmere, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 92 (N.L.R.B. 1989)

92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lechmere, Inc. and Local 919, United Food and
Commercial Workers International Union,
AFL-CIO. Case 39-CA-3571
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , HIGGINS, AND
DEVANEY
On September 30, 1988, Administrative Law
Judge Joel P. Biblowitz issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief as well as a supplemental brief' and
the General Counsel filed cross-exceptions and a
supporting and reply brief in which the Charging
Party joined.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,2 findings, and
conclusions, as explained below, and to adopt the
recommended Order.3
The judge found that the Respondent violated
Section 8(a)(1) of the Act by denying access to its
parking lot to nonemployee union organizers for
the purpose of distributing leaflets and handbills to
employees and by attempting to remove the union
organizers from a 10-foot-wide strip of public prop-
erty abutting its parking lot and the Berlin Turn-
pike. The judge found no violation of Section
8(a)(1) in the Respondent's installation of a video
camera on the roof of its store to monitor the exte-
rior areas adjacent to the store. We agree with the
judge, but base our finding that the Respondent
violated Section 8(a)(1) by denying the union orga-
nizers access to its parking lot on the analysis set
forth in Jean Country, 291 NLRB 11 (1988).
In Jean Country, the Board reevaluated the ana-
lytical approach for resolving conflicts between
Section 7 and private property rights set forth in
Fairmont Hotel, 282 NLRB 139 (1986), and clari-
fied that the availability of reasonable alternative
means is a factor that must be considered in every
access case in which a legitimate property interest
' The Respondent has requested oral argument . The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
P The Respondent and the General Counsel have excepted to some of
the judge's credibility findings . The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F 2d 362 (3d Cir 1951). We have carefully examined the record and
find no basis for reversing the findings.
a We attach a modified notice to conform the language with the
judge's recommended Order
and a Section 7 right must be accommodated.4 The
Board further held (291 NLRB at 14):
Accordingly, in all access cases our essential
concern will be the degree of impairment of
the Section 7 right if access should be denied,
as it balances against the degree of impairment
of the private property right if access should
be granted. We view the consideration of the
availability of reasonably effective alternative
means as especially significant in this balancing
process. In the final analysis however, there is
no simple formula that will immediately deter-
mine the result in every case.
The Board in Jean Country found that the fol-
lowing factors may be relevant to assessing the
weight of a property right: the use to which the
property is put; the restrictions, if any, that are im-
posed on public access to the property; and the
property's relative size and openness. The factors
that may be relevant to the consideration of a Sec-
tion 7 right include: the nature of the right; the
identity of the employer to which the right is di-
rectly related (e.g., the employer with whom a
union has a primary dispute); the relationship of
the employer or other target to the property to
which access is sought; the identity of the audience
to which the communications concerning the Sec-
tion 7 right are directed; and the manner in which
the activity related to that right is carried out. Fi-
nally, factors that may be relevant to the assess-
ment of alternative means include: the desirability
of avoiding the enmeshment of neutrals in labor
disputes; the safety of attempting communications
at alternative public sites; the burden and expense
of nontrespassory communication alternatives; and
the extent to which exclusive use of the nontrespas-
sory alternatives would dilute the effectiveness of
the message.
Applying the Jean Country analysis to this case,
we initially find that the Respondent owns the
Newington Lechmere store and the land occupied
by, and immediately surrounding, the store. The
Respondent also shares ownership in the parking
lot adjacent to the store with the operators of a
strip of 13 stores. The parking lot is available for
use by patrons and employees of all the stores.
Only 4 of the 13 stores were open and there were 2
public telephones in front of the strip stores when
nonemployee union organizers sought to contact
4 In reaching this conclusion the Board emphasized that , under the Su-
preme Court 's decision in NLRB Y. Babcock & Wilcox Ca, 351 U.S. 105
(1956), and Hudgens P. NLRB, 424 U.S. 507 (1976), the Board is "charged
with seeking to avoid the destruction ' of [Sec 7 and property] rights, if
at all possible, and with permitting infringements on one right only to the
extent necessary to maintain the other " Jean Country, 291 NLRB at 12-
13.
295 NLRB No. 15
LECHMERE, INC. 93
the Respondent's employees in June 1987. The Re-
spondent maintains and enforces rules against solic-
itation and distribution on its premises, and in the
parking lot with. the authorization of the operators
of the strip of stores. We conclude that the Re-
spondent's property right at issue is relatively sub-
stantial but note that the parking lots are essentially
open to the public.5
The Section 7 right asserted is relatively strong.
As the Supreme Court has indicated: "[T]he right
to organize is at the very core of the purpose for
which the NLRA was enacted . . . . [T]he inter-
ests being protected . . . are not those of the [non-
employee union] organizers but of the employees
located on the employer's property."6 Here the
Union targeted the parking lot used by the affected
employees at their worksite as the locale for invok-
ing the organizational rights of those employees.
As the Union's attempts to distribute handbills to
the employees neither impeded traffic flow nor
interfered with the normal use of the parking lot,
the Respondent 's business was not disrupted or its
customers inconvenienced to any significant degree
by the handbilling.7 Accordingly, we find that con-
sideration of the factors of the situs of the Union's
conduct and the manner of that conduct does not
diminish the strength of the core Section 7 right as-
serted. Under the circumstances , we find that the
Section 7 right is certainly worthy of protection
against substantial impairment.
Further, we find that there was no reasonable,
effective alternative means available for the Union
to communicate its message to the 'Respondent's
employees. Thus the Board in Jean Country noted
that only in "exceptional" cases will the use of
newspaper, radio, and television be feasible alterna-
tives to direct contact. 8 And we find that the
present case is not an exceptional one. Newington,
Hartford , and New Britain compose a large "subur-
ban-urban" area. The evidence shows that almost
all the Respondent 's approximately 200 employees
live in these three communities that are serviced by
local newspapers in which the Union placed adver-
tisements seeking authorization for representation
from the Respondent's employees . A newspaper's
general circulation , however, is not evidence of re-
ceipt of a discrete message intended for a specific
audience . Many of the Respondent 's employees
may never receive , purchase , or read these local
newspapers, or may be exposed to them only occa-
s Mountain Country Food Store, 292 NLRB 967 (1989).
8 Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 206 fn. 42 (1978),
citing NLRB Y. Babcock & Wilcox Co., 351 U.S. 105 (1956).
r The Respondent 's assertions that the Union engaged in trespassory
forays onto its property are not evidence of such disruption or inconven-
ience.
8 Jean Country, supra.
sionally.9 Thus, this method of communication is
both expensive and ineffective.
The evidence also shows that the motor vehicle
registry provides on request names and addresses
pertaining to license plate numbers . By observing
cars in the Respondent 's parking lot, the Union
thereby obtained 41 names and addresses of the Re-
spondent 's approximately 200 employees .1 0 How-
ever, it is clear that even with diligence and perse-
verance , that method of obtaining employee names
and addresses is flawed.' Cars driven by patrons of
the Respondent's stores as well as patrons and em-
ployees of the other stores in the complex frequent
the parking lot daily. Even should the union ob-
servers focus on the area where the Respondent's
employees are encouraged to park their cars at
times when these employees would be arriving at
or departing from the store, obstacles to compre-
hensive tallying of names and addresses are mani-
fest. Employees may use cars that are not regis-
tered in their names, may car pool together, may
use alternative means of transportation, or may
park elsewhere . In addition , part-time employees
might not use the parking lot at those times shortly
before and after the store 's designated opening
hours. Accordingly, the effectiveness of the
Union's resorting to the Motor Vehicle Registry as
a comprehensive source of the names and addresses
of the Respondent 's employees is patently minimal.
Finally, the evidence also shows that the 10-foot-
wide strip of public property abutting the Berlin
Turnpike offers an ineffective and unsafe locale for
the union activity. The turnpike is a four-lane high-
way with a 50 m.p.h. speed limit. The presence of
other stores in the immediate vicinity of the com-
plex containing the Respondent's store suggests
that the area is commercial in character and that
traffic is more than minimal . Further contributing
to the safety problem presented by this location is
the lack of a traffic signal or stop sign at the turn-
pike entrance to the parking lot. The entrance is
not limited to the Respondent 's employees but also
provides access for employees of the other stores in
the complex and customers of all the stores.
Indeed, the police summoned by the Respondent
on June 20, 1987, cautioned the union organizers to
be careful neither to impede traffic nor to endanger
8 The advertisements used by the Union included an "Authorization
for Representation" form with the admonition to complete and mail. The
Respondent removed the advertisements from the newspapers delivered
to its store.
10 To these 41 employees, the Union sent 4 consecutive mailings. The
Union also telephoned about a quarter of these employees (approximately
20 of the 41 had unlisted numbers) but often was unable to reach teenage
employees whose parents refused to let them come to the phone to speak
with the union organizers . The Union also made 10 home visits.
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
themselves when positioned on the 10-foot-wide
strip of public property.
Accommodating the private property and Sec-
tion 7 rights pursuant to our analysis in Jean Coun-
try, we find that the Respondent 's property interest
would suffer some impairment by granting the
Union access to the Respondent 's parking lot. We
conclude that the impairment would not be sub-
stantial , however, in. light of the unobtrusive
manner in which the Union carried out its distribu-
tion of leaflets and the fact that the Respondent's
parking lot is essentially open to the public. By
contrast, in the absence of a reasonably alternative
means of communication, the Union's Section 7
right would be "severely impaired-substantially
`destroyed ' within the meaning of Babcock &
Wilcox" I 1 without entry onto the Respondent's
property . Thus, we find that the degree of impair-
ment of the Union 's Section 7 right if its agents
were denied access to the Respondent 's parking lot
to distribute organizational literature outweighs the
degree of impairment of the Respondent 's property
right if access were granted . Accordingly, we
affirm the judge 's conclusion that the Respondent
violated Section 8(a)(1) of the Act by barring rep-
resentatives of the Union from engaging in organi-
zational handbilling in the parking area of the Re-
spondent 's Newington store.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Lechmere,
Inc., Newington , Connecticut , its officers, agents,
successors, and assigns , shall take the action set
forth in the Order , except that the attached notice
is substituted for that of the administrative law
judge.
ing lot adjacent to our store in Newington, Con-
necticut, nor will we attempt to cause them to be
removed from our parking lot for attempting to do
so, as long as the activity is conducted by a reason-
able number of persons , and does not unduly inter-
fere with the normal use of the parking lot, or the
traffic flow from the Berlin Turnpike.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of rights guaranteed them in Section 7 of
the Act.
LECHMERE, INC.
Thomas Meiklejohn, Esq., for the General Counsel.
Robert F. Joy, Esq. (Morgan, Brown, & Joy), for the Re-
spondent.
J. William Gagne, Esq . and Barbara Collins, Esq, for the
Charging Party.
DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was heard by me on May 16 and 17, 1988, in Hart-
ford, Connecticut . The complaint herein , which issued
on November 18, 1987,1 and was based upon an unfair
labor practice charge filed by Local 919, United Food
and Commercial Workers, AFL-CIO (the Union), al-
leges that Lechmere , Inc. (Respondent) violated Section
8(a)(1) of the Act in the following manner : ( 1) On about
June 14 refused to permit representatives of the Union to
engage in organizational picketing and handbilling in the
parking area at its Newington store . (2) On or about
June 20, attempted to cause representatives of the Union
to be removed from public property adjacent to the
parking area of the store , where they were attempting to
distribute organizational handbills to occupants of vehi-
cles. (3) Since about July 15 has operated a revolving
video camera on the roof of the facility , thereby engag-
ing in surveillance of its employees ' union activities.
Upon the entire record , including the briefs received
from the parties, I make the following
I I Jean Country, supra, at 19.
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 ordered us to post and abide by this notice.
WE WILL NOT prohibit representatives of Local
919, United Food and Commercial Workers, AFL-
CIO, or any other labor organization, from distrib-
uting union literature to our employees in the park-
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
H. FACTS
A. Background
Respondent operates a number of stores selling "hard
goods," i .e., televisions , audio equipment , appliances, and
watches, but not clothing. The only store involved
I Unless indicated otherwise , all dates referred to herein are for the
year 1987.
LECHMERE , INC. 95
herein (the store) is located in Newington , Connecticut,
on the west side of the Berlin Turnpike , a four lane di-
vided highway with a 50-mile-per-hour speed limit. The
store is located on a parcel of land bounded on the east
by the Berlin Turnpike and on the north by Pascone
Street . The parcel measures approximately 880 feet from
north to south and 740 feet from east to west . The store
is located at the south end of the property . A main park-
ing lot is to the north of the store and extends to Pas-
cone Street . A smaller parking area is located to the east
of the store . A strip of 13 small "satellite stores" runs
along the west side of the parcel facing the parking lot;
there are no restaurants or convenience stores among
these satellite stores . As of June 1987, only about four of
these stores were occupied . These stores are not owned
by Respondent , and are approximately 100 feet from the
store at the nearest point . There are two public pay tele-
phones located in front of the satellite stores ; there are
also public phones inside the store that are not visible
from the outside . Ownership of the parcel of land is di-
vided among Respondent and Newington Commercial
Associates Limited Partnership (Newington Commer-
cial). Respondent owns the land occupied by and imme.
diately surrounding its store . Newington Commercial
owns the satellite stores . The remainder of the parking
lot is jointly owned by Respondent and Newington
Commercial . Konover Management Corporation, a gen-
eral partner in Newington Commercial Associates, has
management responsibility for the satellite stores. A
grassy strip approximately 46 feet wide runs the entire
length of the property along the Berlin Turnpike, with
the exception of two breaks in that strip for entrances to
the parcel . The 42 foot width of that grassy strip along
the Berlin Turnpike is public property . The remainder of
the grassy strip is Respondent 's property.
There are three entrances to the property; the main
entrance is from the Berlin Turnpike . It begins with an
opening through the grassy strip (actually, two openings,
one an entrance and the other an exit) referred to, supra,
and it continues in a westerly direction on the north side
of the main entrance to the store and continues to, and
ends at , the satellite stores . The principal parking area
for the store and the satellite stores is on the north side
of this road . At this main entrance , the grassy strip con-
tinues in a westerly direction for an additional distance
(approximately 50 feet) on the north side of the entrance
only; this patch of land , admittedly owned by Respond-
ent, will be referred to herein as the dog leg . There is
another entrance to the property from Pascone Street,
north of the store (and east of the satellite stores), and
facing the front end of the store . This is the furthest en-
trance from the store and feeds into the main parking
area . The final entrance to the property is at the most
southerly point of the property , going from the Berlin
Turnpike to the rear of the store . This entrance is meant
for deliveries to Respondent and connects to a loading
dock at the rear (south end) of the store.
There are two entrances to the store ; the main en-
trance, which faces north and the main parking area, and
a pick . up entrance on the east side of the store (across
from the grass strip just south of the main entrance)
facing a small parking area principally used by customers
picking up parcels at the store . The principal parking
area is north of the store, between it and Pascone Street.
Employees are requested to park in the most easterly
portion of this area closest to the grass strip and the
Berlin Turnpike, and to enter the store through the
pickup entrance.
Grossman 's Home Improvement Center store is locat-
ed south of the store, separated by a fence running east
to west behind the store„ the fence does not extend
across the grass strip . There is a sign located at the main
entrance to the property which identifies two of the
stores on the parcel, "Lechmere" and "Card Gallery."
There are no signs in the parking lot announcing any re-
strictions on access to or use of the parking lots other
than signs identifying certain parking spaces as "Handi-
capped Parking." There are two 6 by 8 inch signs on
each set of doors to Respondent 's store which read, "TO
THE PUBLIC. No Soliciting , Canvassing , Distribution
of Literature or Trespassing by Non-Employees in or on
Premises."
Respondent established a no-solicitation/no-distribu-
tion policy in 1982 that has remained in effect to the
present time; the only change in the policy was to
change the word "employee" to "associate" in 1986
when Respondent began referring to its employees as as-
sociates . The policy states:
Solicitation of associates in the work areas during
working time is strictly prohibited. It is strictly pro-
hibited in all selling and public areas at all times.
Non-working time includes break periods , meal pe-
riods and other specified periods during the work
day when associates are properly not engaged in
performing their work tasks . Distribution of litera-
ture in work areas and public selling areas is prohib-
ited.
Non-associates are prohibited from soliciting and
distributing literature at all times anywhere on
Company property, including parking lots. Non-as-
sociates have no right of access to the non -working
areas and only to the public and selling areas of the
store in connection with its public use.
Beginning on June 16 the Union placed advertisements
in newspapers in an attempt to organize the employees at
the store ; at the time Respondent employed approximate-
ly 200 employees at the store, none of whom were repre-
sented by a union . The first ad, and later ads as well, was
addressed to Respondent's employees, told of the better
benefits available with the Union, and included a union
authorization card , with the caption : "Mail Today" or
"Mail it Now."
B. Events of June 18
Lisa Meuci, organizer for the Union , testified that on
June 18 she and other union representatives went to the
facility between 9:15 and 9 : 30 a.m . and placed handbills
on the cars that arrived and parked between 9 :30 and 10
a.m., assuming that they were employees (the store opens
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for business at 10 a .m.).z In addition , union organizer
Giovano Casserino handed a leaflet to an employee who
was walking toward the store , but a security guard took
the leaflet from the employee . Roger Samuelson, the
general manager of the store , testified that on June .18
union representatives were in the parking lot on three
occasions placing leaflets " on car windshields . On these
occasions, they were in the area where employees usual-
ly park and he instructed the security guards to remove
the literature from the cars (which they did) and he and
the assistant store manager, Steve Mittler , asked the
union representatives to leave the parking lot.
C. The Events of June 20
The events of this day are more substantial, as is the
credibility issue between the version testified to by the
four Union representatives and the testimony of Samuel-
son. Meuci testified that about 9:30 a .m. she met the
other union representatives at the Bradlee's store parking
lot across the street (east) from the store; they then
drove to the Grossman 's store just south of the store and
from there walked north up the grassy strip to the main
entrance to the parking lot. They stood on the grassy
strip within a few feet from the Berlin Turnpike , on both
sides of the main entrance to the parking lot (between
9:30 and 9 :40 a.m .) attempting to give handbills to driv-
ers entering the parking lot at this point (assuming that
they were employees ). About 3 to 5 minutes later (before
they had handed out any literature ) Samuelson , Mittler,
and three security guards came out of the store and said
that they were on Respondent 's property and asked them
to leave. They said that they thought that since they
were on the grassy strip near the Berlin Turnpike that
they were on public property . Samuelson said that it was
Respondent 's property , and unless they left he would
call the police . When they did not leave Samuelson went
into the store to call the police . Ten minutes later the
police arrived and questioned the union representatives
about their purpose . Office Gallagher told them that
they were on public property, but that they were so
close to the Berlin Turnpike that it could be dangerous
remaining there if they were not careful . Gallagher then
spoke privately with Samuelson , after which he called
his sergeant . Before leaving, Gallagher told the union
representatives that they could remain , but they couldn't
obstruct the traffic flow on the highway or leading into
the parking lot. Because the security guards continued to
videotape their movements , Meuci and the others then
left the area.4
Casserino testified that he met Meuci, Mark Espinosa
(union business representative), and Cliff Gagnon (re-
cording secretary of the Union) that morning in the
Bradlee's parking lot and they drove to Grossman 's park-
2 Shortly after the store opened that morning , the union 's representa-
tives attempted to distribute literature to employees in the store until they
were stopped from doing so by Respondent 's representatives.
8 The leaflets used by the Union on June 18 and thereafter extolled the
advantages of the Union and had an attached union authorization card
for the employees to complete and a stamped self-addressed envelope.
4 The affidavit she gave to the Board states- "The police explained to
the employer that we were on state property , but he told us we might
disrupt traffic flow and must leave . We left."
ing lot. From there they walked north on the grassy strip
to Respondent's parking lot where they stood by the
main entrance to the parking lot about 4 feet from the
Berlin Turnpike. About. 5 minutes later Samuelson came
out of the store and told them to leave . They protested
they were on public property and wouldn 't leave. Sam-
uelson said that it was Respondent 's property and they
should leave immediately. They refused. About 5 min-
utes later two policemen arrived . One asked what they
were doing; they said that they were on public property
attempting to speak to employees on their way to work.
The officer went to speak to Samuelson and when he re-
turned he told them that since they were on public prop-
erty they could remain, but they should be careful be-
cause of the speed of the nearby traffic . At no time that
day did the union representatives leave the area about 4
feet from the Berlin Turnpike and enter Respondent's
property and at no time after the police arrived did Sam-
uelson or any other representative of Respondent tell
them to leave.
Espinosa testified that he met the other Union repre-
sentatives that morning at Bradlee's parking lot and
walked (by himself) across the Berlin Turnpike to the
grassy strip on the side of the main entrance to Respond-
ent's parking lot where he met the others . He and the
others stood there, about 4 feet from the Berlin Turnpike
("We figured that's where we had a right to be"). Re-
spondent 's representatives approached them and Samuel-
son said that they had to leave Respondent 's property.
They said that they had a right to be there and Espinosa
asked if Respondent owned the property all the way to
the Berlin Turnpike . Samuelson asked them if they were
going to leave and they said that they were not and he
said that he would call the police . When the police ar-
rived they told the police that they were there to distrib-
ute literature and felt that they had a right to be there,
but that they did not want to cause any problem, and if
they were asked to leave, they would do so. The police-
man then spoke to Samuelson for a few minutes; when
he returned he told them that they had a right to remain
there as long as they remained within 10 feet of the curb,
but that they should be careful because of the speed of
the cars on the Berlin Turnpike . From the time he ar-
rived he never left the area about 4 feet from the Berlin
Turnpike until they left after the police spoke to them.
They left the premises that day, but not because they
were requested to do so by Samuelson ; in fact, Samuel-
son never spoke to them again after the police arrived.
Gagnon testified that he met the other union representa-
tives at the Bradlee's parking lot that morning ; they then
drove to the Grossman 's parking lot and walked along
the grassy strip to the entrance to the parking lot of Re-
spondent 's store arriving about 9:30 a.m . They stood a
few feet from the Berlin Turnpike preparing to give leaf-
lets to cars entering the parking lot. Within a short time
Samuelson came out of the store and told them to leave
because they were on Respondent 's property . Gagnon
(and the others) said that they were on public property
and had a right to be there . Samuelson said that Re-
spondent owned the entire area including the grassy strip
and asked them to leave . When they refused to leave he
LECHMERE, INC. 97
said that he would call the police . A few minutes later
the police arrived ; they first spoke to Samuelson and
then asked the union representatives what they were
doing . Gagnon told him that they were attempting to
give handbills to employees entering the parking lot and
that Samuelson had said that they were on private prop-
erty and he had disagreed . After the police officer called
his office, he told them that they were on public proper-
ty. The police left and the union representatives re-
mained in the same place for about 5 minutes and then
left: "We'd proved our point, that we could stay on the
grassy area."
Samuelson testified that at 9 :22 a.m . on June 20,
Gagnon and Espinosa drove into the parking lot at Re-
spondent 's store and began putting leaflets on cars
parked in the parking lot. Samuelson then told them of
Respondent 's no-solicitation rule and they left and drove
their car into Grossman 's parking lot. About 20 minutes
later Gagnon and Espinosa (together with Meuci and
Casserino) were back in Respondent 's parking lot (they
had walked from Grossman 's) on the dog leg of the
grassy strip at the main entrance to the parking lot,
about 100 feet from the Berlin Turnpike . As stated,
supra, this property is owned by Respondent .5 Mittler
and Samuelson told them of the no -solicitation rule and
asked them to leave; when they did not leave Samuelson
called the police . Prior to the police arriving , one of the
union representatives asked Samuelson what part of the
area Respondent owned and asked if they owned the
Berlin Turnpike . Samuelson said that of course they
didn 't, but he never specified where the dividing line was
between their property and public property. The police
arrived and asked what the problem was ; Samuelson said
that they were trespassing on his property and he
wanted them to leave . The officer then spoke to the
union representatives and returned and told Samuelson
that he told them that they could remain on the public
area, but had to stay off Respondent 's property.
I was happy with that solution , because that was
my intention , to keep them off of Lechmere proper-
ty, and had full knowledge that they had the right
to be on the public way.
The police left, as did the union representatives 5 or 10
minutes later . On cross-examination Samuelson testified
that when he initially saw that the union representatives
had returned to Respondent's parking lot, they were on
the dog leg (Respondent 's property), but by the time he
approached them and told them to get off Respondent's
property, they were on the grassy strip (public property).
Regardless of the fact that they were on public property,
he still told them to get off Respondent's property. He
was then asked if he told them that he was going to call
the police , even though they were then on public prop-
erty; he testified : "The police had already been called, as
I was coming out the door ." The Incident Report re-
ferred to supra, states:" I then told them I would call the
police if they did not leave our property . They didn't
leave so we called the police."
D. Other Union Attempts to Contact Employees
In addition to the newspaper advertisements referred
to supra,6 the Union was able to obtain the name and ad-
dresses of 41 nonsupervisory employees of Respondent
by writing the license number of their car . In Connecti-
cut, the Department of Motor Vehicles will give you the
name and address of the owners of automobiles if you
supply the license plate number . Meuci testified that they
made phone calls and house calls to these employees, but
they were generally unsuccessful because the employees
were often high school students and "generally the par-
ents would intervene" and not allow them to talk to
their children , the employees . This was the result of
about 10 home visits and 8 or 9 telephone calls by
Meuci. In addition , using the name and address list re-
ceived from the Department of Motor Vehicles, Re-
spondent sent 4 mailings to the 41 employees listed; these
mailings told of the benefits of joining the union and in-
cluded Union authorization cards ; only one employee re-
turned a signed authorization card.
Samuelson testified that in June 179 of the 200 employ-
ees of Respondent resided in Newington , Hartford, and
New Britain ; the maximum distance between these points
is about 15 miles.
E. Prior Enforcement of No-Solicitation
Samuelson testified to a number of other occasions
where he acted to enforce Respondent's no-solicitation
rule. Shortly after the store opened for business in No-
vember 1966 , Samuelson observed that someone had put
leaflets advertising the American Automobile Associa-
tion (AAA) on cars in the parking lot; he had the leaflets
removed , called the AAA, and told the branch manager
that Respondent had a no-solicitation policy and could
not allow them on the property to solicit or distribute
handbills. In about November 1986, Samuelson received
a telephone call from the Salvation Army asking if they
could station one of their bell-ringers in front of the store
for the Christmas season : "I had to tell them no, again
based on our no-solicitation policy . And wished them
well with their campaign , but it would have to be not on
Lechmere property ." A few months later cents -off cou-
pons from Burger King were found on cars in the park-
ing lot ; Samuelson called the store manager and told him
of Respondent's no-solicitation rule and that such distri-
butions would not be allowed . A few months later, two
girl scouts were selling cookies in front of the store; he
told them of Respondent 's no-solicitation policy and that
they would have to leave, and they did.
Samuelson testified that the purposes of the rule are to
keep people from harassing Respondent 's customers
("shaking cans in your face . . . asking to buy raffle tick-
ets or cookies . . .") and to keep "illegal trespassers" off
5 In an incident report that Samuelson prepared that day , he stated that
he saw the four individuals in "the grass area" (which could describe the
grassy strip as well as the dog leg) and never specified that they were on
Respondent 's property.
6 The advertisements were placed in the Hartford Courant , one of the
largest circulation newspapers in Connecticut . Meuci testified that she
was told that its circulation covers Hartford , New Britain , and Newing-
ton, among other areas.
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the property thereby preventing incidents or other con-
frontations in the parking lot. Samuelson testified that il-
legal trespassers would be "anyone that would be
coming to the store not for the purpose of shopping, but
for the purpose of distributing literature , raising funds for
a church , a bake sale ... ." He testified that when he
was first told of the rule he was not told that one pur-
pose of it was to keep union solicitors off the premises.
Samuelson was asked whether one of the reasons he at-
tempted to keep the employees from receiving the
Union 's leaflets was to make it less likely that the Union
would successfully organize his employees . He testified:
"It's very difficult to answer . I think my primary reason
was to continue the consistent enforcement of the no so-
licitation policy."
F. Video Camera
The final allegation herein is that by placing a video
camera on the roof of the store on July 23 Respondent
violated Section 8(a)(1) of the Act. Samuelson testified
that of the ' 24 stores operated by Respondent , 16 to 18
have video cameras .' At the store in question, the loss
prevention office has nine televison monitors , each of
which is a closed circuit television system with a camera
and monitor . Only one of these cameras (with attached
monitor)-the one on the roof-is in question here. The
picture from only one of these monitors can be taped at
any one time . Samuelson testified that the video camera
was ordered on July 21 or 22 and installed on the roof to
monitor illegal activity in the parking lot and to assist
with in-store security . As regards the former , there have
been situations where a car window was broken and car
radios were stolen; the video camera assisted Respondent
on one such occasion where they observed such an inci-
dent occurring , the police were called , and the perpetra-
tor was apprehended . As regards the latter, the rooftop
video camera gives the security officer in the store the
ability to follow the path of a suspected shoplifter as he
leaves 'the store.
The Union picketed the grassy area regularly from
August 7 through September 5, then intermittently from
October through March 1988 ; these pickets were never
asked to leave by Respondent 's representatives. During
the first few days of this picketing in August , the rooftop
video camera was directed at some of the pickets and the
proceeding was being videotaped ("because I had no
idea what was going . to happen"). After several days,
Respondent ceased focusing the camera on the pickets
("Because nothing had happened that would be of any
significant matter.")
Charles Lieberman, who was employed by Respond-
ent from about September 1986 (when the store opened
for business) through October, testified that at a regular
meeting of. employees subsequent to the installation of
the video camera, somebody asked Samuelson why the
camera was installed ; "Mr. Samuelson said basically two
things . One for general security . And, two, in order to
assure that the Union people wouldn 't be harassing cus-
tomers or possibly vandalizing cars. That kind of thing."
III. ANALYSIS
The initial allegation in the complaint - is that since on
about June 14 (really June 18) Respondent has refused to
permit Respondent 's representatives to engage in orga-
nizing and handbilling in the parking area adjacent to the
store . The evidence establishes that between 9:30 and 10
a.m. on June 18 the union representatives placed hand-
bills on the cars parked in the area frequented by em-
ployees, but these handbills were removed at the request
of Samuelson . Casserino handed a leaflet to an employee,
but a security guard took the leaflet from the employee.
In addition , Samuelson and Mittler asked the union rep-
resentatives to leave the parking lot because it was Re-
spondent 's property.
In Fairmont Hotel, 282 NLRB 139 ( 1986), the Board
set forth the balancing test to be used in situations such
as the instant matter . The Board discussed NLRB v. Bab-
cock & Wilcox Co., 351 U.S . 105 (1956), and Hudgens v.
NLRB, 424 U.S. 507 (1976), and determined that in cases
involving conflicts between property rights and Section
7 rights, the Board's task is "first to weigh the relative
strength of each parties ' claim."
If the property owner 's claim is a strong one, while
the Section 7 right at issue is clearly a less compel-
ling one, the property right will prevail. If the
property claim is a tenuous one, and the Section 7
right is clearly more compelling, then the Section 7
right will prevail . Only in those cases where the re-
spective claims are relatively equal in strength will
effective alternative means of communication
become determinative.
Fairmont (and later cases such as United Supermarkets,
283 NLRB 814 (1987), and Emery Realty, 286 NLRB 372
(1987), then speaks of factors affecting the strength and
weakness of the employer 's property rights and the
Union's Section 7 rights. Applying the Fairmont criteria
to the instant matter, I find the Union 's Section 7 rights
more compelling than Respondent 's property rights. This
is not an area standards dispute a union has with a sec-
ondary employer as in Fairmont; this is the Union's at-
tempt to organize Respondent's employees . As the Su-
preme Court stated in Sears, Roebuck & Co. v. Carpen-
ters, 436 U. S. 180 (1978): "the right to organize is at the
very core of the purpose for which the NLRA was en-
acted." In addition , the Union 's activity was such that
there was little likelihood that Respondent 's customers,
or the employees of the few satellite stores then open,
were affected because the Union placed handbills only
on cars parked in the area where Respondent 's employ-
ees were told to park (not the most convenient to the
main entrance to the store) and generally did so before
the store opened at 10 a.m. By contrast , Respondent's
property rights are not as compelling . Although Re-
spondent has uniformly enforced its no-solicitation/no-
distribution policy since the store opened in November
1986, there are no signs at the entrances to the parking
lot limiting entry in any way. The Board , in Fairmont,
supra, differentiated between a multistore mall and a
single store:
LECHMERE , INC. 99
[T]he owner of a large shopping mall who allows
the general public to utilize his property without
substantial limitation may well have a heavy burden
to bear in seeking selectively to exclude pickets
who are engaged in an economic strike against their
employer who is a tenant of the mall. . . . On the
other hand, a single store surrounded by its own
parking lot provided exclusively for the conven-
ience of customers will have a significantly more
compelling property right claim . [282 NLRB at
141-142.]
Although the situation herein did not constitute a "large
shopping mall" on June 18, it clearly was not a "single
store surrounded by its own parking lot" as stated in
Fairmont. Four of the thirteen satellite stores were open
at the time and it is not unreasonable to assume that a
large majority of the customers of these stores drove
through the main entrance to the parking lot, and that
some of these customers shopped at the store, as well as
one or more of the satellite stores then open. Although
the only "visible" pay telephones are in front of the sat-
ellite stores and there are no food or convenience stores
or restaurants in the center, that does not diminish the
fact that this is a shopping mall and that Respondent's
property rights are subordinate to the Union's Section 7
rights herein . I therefore find that Respondent's actions
on June 18 violated Section 8(a)(1) of the Act.
As I have found that the rights asserted by the Union
and the Respondent are not relatively equal , it is unnec-
essary to consider reasonable alternative means available
to the Union in attempting to communicate with the em-
ployees, Fairmont, supra. However, should my finding
herein not be upheld, subsequently, I should state that
the facts herein convince me that reasonable alternative
means were available to the Union. Employees were
easily recognizable here; they parked in specified areas
and arrived at predictable times . Even if the union repre-
sentatives were unable to converse with them prior to
entering the store, the Union could (and did) utilize the
procedure of writing their license numbers and obtaining
their names and addresses from the Connecticut Depart-
ment of Motor Vehicles. The fact that a large majority
of the employees rejected their solicitations does not de-
tract from this; Fairmont does not require that the Union
be successful in its contacts with employees , only that
there are reasonable alternative means of communicating
with them . In addition , the store is located in an urban-
suburban area with one newspaper capable of reaching
all or almost all of Respondent 's employees . For these
reasons I find that there were adequate alternate means
of contacting the employees available to the Union.
It is next alleged that on June 20, Respondent, by
Samuelson , attempted to cause the union representatives
to be removed from the public property adjacent to the
parking lot , in violation of Section 8(a)(1) of the Act; I
credit the testimony of the four union representatives
over that of Samuelson . Their testimony that they solicit-
ed solely on public property a few feet from the Berlin
Turnpike is reasonable after their solicitation in the park-
ing lot 2 days earlier had been rebuffed. In addition, al-
though Samuelson appeared to be a credible witness, his
testimony on this subject is difficult to understand. On
direct examination he testified that when he saw them
about 9 :47 a.m . they were on the dog leg (Respondent's
property) and he called the police . According to his tes-
timony on direct examination , they did not leave the dog
leg and stay on public property until after the police ar-
rived . On cross-examination he testified that by the time
he approached them they were on public property. He
was asked why he asked them to leave if they were on
public property and he testified that the police had al-
ready been called . Yet his incident report states that he
told the union representatives that unless they left "our
property" he would call the police ; when they refused to
leave, he called the police . He never explained this con-
tradiction . What is clear, however, is that when Samuel-
son did tell the union representative to' leave, they were
on public property , where they had a right to be. As the
Board stated in Mike Yurosek & Son, 229 NLRB 152 at
153 (1977): "If the alley were clearly public property,
Respondent 's attempts to exclude union representatives
therefrom would be unlawful under Section 8 (a)(1) of
the Act." Samuelson 's attempt to cause the union repre-
sentatives to be removed on June 20 , when they were on
public property, therefore , violates Section 8(a)(1) of the
Act.
Finally, the complaint alleges that by installing the re-
volving videotape camera on the roof of the store on
July 23, Respondent violated Section 8(a)(1) of the Act.
An employer may photograph or videotape certain ac-
tivities outside his plant without violating the Act where
he can establish a legitimate purpose for this activity.
Russell Sportswear Corp., 197 NLRB 1116 (1972); the
principal means of justification for this activity is to
secure evidence for injunction proceedings to enjoin
strike-related conduct or to establish that the picketing
was unlawful under the Act. Bozzuto's, Inc., 277 NLRB
977 (1985). Peaceful union activity cannot be a motivat-
ing factor in an employer's institution of a videotaping
system . Cutting Inc., 255 NLRB 534, 543 (1981). Re-
spondent does not defend on the basis that it was gather-
ing evidence for a state court or Board injunction.
Rather Samuelson testified that most of Respondent's
stores supplement their in -store video security system
with a rooftop camera and that was the purpose of this
camera-to monitor any illegal activity occurring in the
parking lot and to allow the store 's security people to
"follow" a shoplifter (or other wrongdoer) out of the
store via the video camera . Lieberman 's testimony is not
decisive here; he testified that Samuelson told the em-
ployees that the video camera was installed for general
security and to assure that the union people would not
harass customers or vandalize cars in the parking lot. Al-
though the union representatives did enter the store on
June 18 and attempted to speak to, or leave literature
for, employees at that time, there is certainly no evi-
dence that they harassed customers or vandalized cars at
that time or at any time prior to July 23 . On the other
hand , I find credible and reasonable Samuelson 's testimo-
ny that most of Respondent 's stores have rooftop cam-
eras and that the timing of the purchase of the camera
for the store was not out of the ordinary compared with
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent 's other stores . For this reason (although not
free from doubt) I find that the installation of the video
camera on the roof of the store did not violate Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Lechmere, Inc. is an employer engaged
in commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
refusing to allow the union representatives to engage in
organizing and handbilling in the store 's parking lot and
by attempting to cause the union representative to be re-
moved from a public area adjacent to the parking lot.
4. Respondent did not violate the Act as further al-
leged in the complaint.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and that it take certain af-
firmative action designed to effectuate the policies of the
Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The Respondent, Lechmere, Inc., Newington, Con-
necticut , its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Prohibiting union representatives from distributing
union literature to its employees in the parking lot adja-
cent to its store in Newington , Connecticut, and threat-
ening them with arrest for attempting to do so, as long
as the activity is conducted by a reasonable number of
persons, and does not unduly interfere with the normal
use of the parking lot, or the traffic flow from the Berlin
Turnpike.
(b) In any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neccessary to
effectuate the policies of the Act.
(a) Post at at its Newington, Connecticut store copies
of the attached notice marked "Appendix."e Copies of
the notice, on forms provided by the Regional Director
for Region 34, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "