Lincoln Center For The Performing Arts

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1100 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
Lincoln Center for the Performing Arts, Inc. and Lo-
cal 100, Hotel Employees and Restaurant Em-
ployees International Union, AFL–CIO. Case 2–
CA–32983
November 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On April 1, 2002, Administrative Law Judge Steven
Fish issued the attached decision, and on June 20, 2003,
the judge issued the attached supplemental decision.1
The Respondent filed exceptions and a supporting brief,
the General Counsel and the Charging Party filed an-
swering briefs, and the Respondent filed a reply to the
General Counsel’s and the Charging Party’s answering
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,

1 On July 17, 2002, after the judge issued his original decision, the
Board granted the Respondent’s motion to reopen the record to provide
the Respondent an opportunity to adduce evidence that Dennis Diaz
allegedly committed perjury while testifying during the original hear-
ing.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by promulgating its no-leafleting policy to discourage union
activity, and by discriminatorily enforcing its policy on May 11, 2001.
In view of these two bases for finding a violation, we deem it unneces-
sary to pass on a third possible basis for finding a violation, i.e., that the
Respondent violated Sec. 8(a)(1) by excluding and attempting to ex-
clude union leafleters without having a property right entitling it to do
so.
We also find it unnecessary to pass on the judge’s additional finding
that the Respondent violated Sec. 8(a)(1) by discriminatorily enforcing
its no-leafleting policy on June 28, 2001, and the subsidiary finding that
Sec. 10(b) did not bar the General Counsel from including that allega-
tion in the complaint. The finding of a violation on June 28, would be
cumulative of the other violation found on May 11, 2001, and would
not materially affect the remedy.
In adopting the judge’s finding that the Respondent discriminatorily
enforced its no-leafleting policy on May 11, 2001, Chairman Battista
notes that the Respondent does not argue that it draws a distinction
between charitable and noncharitable solicitations. See, e.g., Cleveland
Real Estate Partners v. NLRB, 95 F.3d 457, 465 (6th Cir. 1996).
and to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Lincoln Center for the Performing Arts,
Inc., New York, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Promulgating rules prohibiting the distribution of
leaflets or the engaging in of any other protected con-
certed activity on the Columbus Avenue sidewalk, or
enforcing prior rules more stringently, in order to dis-
courage protected conduct by representatives of Local
100, Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO (Local 100).
(b) Evicting, attempting to evict, threatening to arrest,
or otherwise prohibiting Local 100 representatives from
distributing leaflets on the Columbus Avenue sidewalk
while allowing nonunion individuals to engage in the
same conduct.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its rule prohibiting the distribution of
handbills or leaflets on the Columbus Avenue sidewalk.
(b) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
3 We shall revise the judge’s recommended Order to include lan-
guage more closely tracking the violations found and to eliminate du-
plicative language. We shall also substitute a new notice to conform to
the language in the Order.
4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
340 NLRB No. 134
LINCOLN CENTER FOR THE PERFORMING ARTS 1101
ployed by the Respondent at any time since February 26,
2001.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 2, a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT promulgate rules prohibiting the dis-
tribution of leaflets or the engaging in of any other con-
certed activity on the Columbus Avenue sidewalk, or
enforce prior rules more stringently, in order to discour-
age protected conduct by representatives of Local 100,
Hotel Employees and Restaurant Employees Interna-
tional Union, AFL–CIO (Local 100).
WE WILL NOT evict, attempt to evict, threaten to ar-
rest, or otherwise prohibit Local 100 representatives from
distributing leaflets on the Columbus Avenue sidewalk
while allowing nonunion individuals to engage in the
same conduct.
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 rescind our rule prohibiting the distribution
of handbills or leaflets on the Columbus Avenue side-
walk.
LINCOLN CENTER FOR THE
PERFORMING ARTS, INC.
Christene Mann, Esq., for the General Counsel.
Peter R. Conrad, Esq. (Proskauer, Rose LLP) and Evelyn
Finkelstein, Esq., of New York, New York, General Coun-
sel for Respondent.
Jamin Sewell, Esq., of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges filed by Local 100, Hotel Employees and Restaurant
Employees International Union, AFL–CIO, the Union or Local
100, on May 9, 2000, 1 the Acting Director for Region 2, issued
a complaint and notice of hearing on March 30, 2001, alleging
that Lincoln Center for the Performing Arts, Inc., Respondent,
violated Section 8(a)(1) of the Act. The trial with respect to the
allegation in the complaint was held before me on July 11, 12,
and 25, 2001. Briefs have been filed by General Counsel and
Respondent, and have been carefully considered. Based on the
entire record, including my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a not-for-profit corporation with an office and
place of business located at 70 Lincoln Center Plaza, New
York, New York, where it is engaged in the business of operat-
ing Lincoln Center for the Performing Arts. Annually, Re-
spondent derives gross revenues in excess of $1 million and
purchases and receives at its New York City facility products,
goods, and materials valued in excess of $10,000 directly from
points located outside the State of New York.
It is admitted, and I so find, that Respondent is and had been
an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
It is also admitted, and I so find that Local 100 is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
A. The 10(b) Issue
Local 100’s charge, filed on May 9, alleges in substance that
since May 3, Respondent has threatened to file criminal tres-
pass charges against Local 100’s agents for engaging in pro-
tected activities “on the city sidewalks outside the Lincoln Cen-
ter campus, without having a property interest which entitles it
to do so.”
During the course of the investigation of the instant charge,
Respondent filed a statement of position dated June 27, which
dealt with the events of May 11. Subsequently, the charge was
sent to the Division of Advice.
The complaint of which issued on March 30, 2001, alleges
that (1) Respondent unlawfully implemented and maintained a
policy against leafleters on the Columbus Avenue sidewalk
between 62nd and 65th Streets; (2) Respondent threatened the
Union with arrest and caused the police to threaten the Union
with arrest, for leafleting on the Columbus Avenue sidewalk on
May 11, and June 28, 2000; and (3) Respondent promulgated,
maintained, and selectively and disparately enforced the anti-
leafleting policy to discourage employees from joining and
assisting the Union or engaging in other concerted activities.
Upon receipt of the complaint, Respondent wrote to the Re-
gional Director complaining that it had not been given prior

1 All dates are in 2000, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
notice of unfair labor practices occurring on June 28, and had
been deprived of the opportunity during the administrative
investigation to submit evidence in response to the allegations.
Respondent also demanded that the allegation with regard to
June 28, be withdrawn.
The Regional Director declined to withdraw the allegation,
but Respondent was advised that it could present any evidence
that it wished concerning that allegation, and the Regional Di-
rector would consider such evidence. Respondent declined to
submit any evidence at that time.
B. The Columbus Avenue Sidewalk
Lincoln Center is a complex of buildings located on the up-
per westside of Manhattan. The complex includes various ven-
ues such as the Metropolitan Opera House, New York State
Theater, and Vivian Beaumont, where different types of per-
formances are regularly held. The complex is bordered by
Columbus Avenue between 62nd and 65th Streets, and the
sidewalk at issue here is located on the west side of the street.
This sidewalk, like any other sidewalk, is one that pedestrians
regularly use to walk up and down the street.
However, the sidewalk is also used by patrons coming into
the complex to attend events. The patrons use the sidewalk and
enter the complex by walking up one of several access stairs
which lead up to pedestrian walk, an access road, and then onto
the Josie Robertson Plaza (the Plaza), which is a large square in
the middle of the complex.
New York City owns the entire Lincoln Center property, but
the city and Respondent have entered into a license Agreement,
which has been most recently amended in 1993 and which runs
for a 10-year term ending on January 1, 2004.
The agreement provides that the city licenses Respondent,
“on behalf of and as an agent of the city to manage and main-
tain the premises” Premises is defined in the agreement as “the
Garage and Public Areas.” Public areas, is further defined to
include the Plaza, and the “sidewalk, steps and access road
paralleling Columbus Avenue, including access stairs to pedes-
trian walks.”2
Respondent is also granted the right to “maintain revenue
producing activities” and to “schedule events” in the public
areas. “Event” is not defined in the agreement, but the city
Parks Department appears to define an “event” as an activity
consisting of 20 or more people, since its regulations require a
permit for various gatherings of 20 or more people.
Section 8.1 of the agreement gives Respondent the authority
to schedule events in the public areas, and the city agrees to
forward to Respondent all applications it receives for use of the
public areas. In connection with that authority, Respondent can
charge reasonable fees, require bonds for anticipated costs of
cleaning, security or other services, and obligates Respondent

2 It is notable that the agreement does not mention the sidewalks on
Amsterdam Avenue, 62nd Street, or 65th Streets, which border the
complex on the west, south, and north sides. No explanation was given
by any witness as to why only this “sidewalk” is considered a “Public
Area.” However, it does appear that this sidewalk leads to the main
entrance to the complex, and parallels an access road between the stairs
and the Plaza.
to “provide usual and normal maintenance, repair, security and
clean up services . . . which take place in the public areas.”
C. Local 100’s Organizing Campaign
In March 1999, the Union commenced a campaign to organ-
ize employees of Restaurant Associates (RA) employed in
various food service capacities at the Metropolitan Opera
House (the Met). None of the workers whom the Union is
seeking to represent are employed by Respondent or the Met.
In connection with this organizing campaign, the Union en-
gaged in various activities around the complex including leaf-
leting, rallies, and a candlelight vigil. Dennis Diaz has been the
Union’s lead organizer, and has been in charge of the campaign
at the complex.
Diaz testified without contradiction that from March 1999
through April 2000, two or three times a week, generally from
6:30 to 8:40 p.m., he and other union representatives distributed
leaflets to individuals walking along the Columbus Avenue
sidewalk as they were approaching the steps to enter the com-
plex. During this period of time, there was no attempt by rep-
resentatives of Respondent or the New York City police to
interfere with the leafleting.
During this same period of time, Diaz observed several other
groups leafleting on the sidewalk, including supporters of the
Musicians Union on December 1, 1999, and an Animal Rights
Organization in February 2000.
Respondent presented two witnesses concerning its past
practice concerning permitting leafleting on the Columbus
Avenue sidewalk. These witnesses, Andre Mirabelli, senior
vice president for operations and Vincent Talamo, associate
director of security, contend that Respondent’s policy had al-
ways been to prohibit any leafleting on the Columbus Avenue
sidewalk, but both witnesses concede that Respondent had for
many years “let the policy slide,” and did not enforce it dili-
gently with either the police or the staff. Indeed, it is clear that
Respondent was more concerned with leafleting or demonstra-
tions on the Plaza, where it regularly evicted those engaging in
such conduct, and if necessary would request assistance from
the police in helping to remove such individuals. Indeed ac-
cording to Mirabelli, where there were demonstrations or pick-
eting on the Plaza, Respondent would direct the picketers or
demonstrators to the Columbus Avenue sidewalk to continue
their activities.
However, according to Mirabelli, sometime in late 1999 he
began to notice that the level of leafleting on the Columbus
Avenue sidewalk began to increase, and he asserts that activity
became troublesome because the leafleters became “a lot more
pushy, a lot more aggressive, they weren’t politely offering a
leaflet, now they were engaging in argumentative discussion
and debate.” Thus, Mirabelli contends that he instructed Ta-
lamo and the Director of Security Gerry Cottam, at that time to
vigorously enforce Respondent’s alleged policy to forbid leaf-
leting on the Columbus Avenue sidewalk. This led to, accord-
ing to Mirabelli and Talamo, the issuance of a memorandum to
the staff, dated February 26, 2000. This memo reads as fol-
lows:

LINCOLN CENTER FOR THE PERFORMING ARTS 1103
DATE: February 26, 2000

TO: Tour Commanders
Security Supervisors

FROM: Vince Talamo

SUBJECT: Leaflet Distribution on Columbus Avenue

Whenever leaflets are observed being distributed on the
Columbus Avenue Sidewalk in front of the Robertson
Plaza, the following Security Department Response is to
initiated:

1. Immediately notify the Security Director, Associate Di-
rector or Assistant Director on duty.
2. If the distribution of leaflets occurs during a time when
the director or his assistants are unavailable, the tour com-
mander will:
• Personally inform those distributing leaflets that
Lincoln Center does not allow such behavior on Its
campus.
• If those distributing the leaflets persist, the NYC
Police are to be summoned and requested to direct
this activity away from the Columbus Avenue
sidewalk.
• A written report that describes the entire timeline
of any such event, including the police response,
will be forwarded to the Director of Security be-
fore the completion of the tour.
• The identity of the group or persons actually En-
gaged in distributing leaflets will, if this can be ac-
complished without undue confrontation be ascer-
tained by the tour commander. A sample of the
leaflet should also be gathered and forwarded.

3. These instructions are in addition to standing orders
concerning demonstrations and distributing leaflets
on the Robertson Plaza.

Submitted for your compliance and information.

Both Talamo and Mirabelli furnished testimony concerning
the specific incidents that motivated Respondent to issue the
February 26 memo. Talamo listed a PETA 3 demonstration on
the Plaza and Local 100’s conduct in leafleting on the sidewalk.
Indeed, according to Talamo, even prior to February 26, 2000,
there were times when union representatives were leafleting on
the Columbus Avenue sidewalk, and he would ask them to
leave, in accordance with Respondent’s policy. According to
Talamo, the Local 100 representatives would refuse to leave
contending that the sidewalk was a public place. Talamo con-
tends that he then told the union representatives that he in-
tended to consult with the police about the matter. He adds that
he did request that the police take action to remove them or
arrest them, but the police responded that it was “unprepared to
take action.” Therefore, the Local 100 leafleters continued to
leaflet.
Mirabelli testified to three categories of activities that led
him to decide to vigorously enforce alleged prior policy to for-

3 PETA is an animal rights organization.
bid leafleting on the Columbus Avenue sidewalk. These inci-
dents included activities by PETA, which consisted of PETA
representatives following patrons from the top of the stairway
to the Plaza, and at times spraying blood on patrons wearing fur
coats. 4 Secondly, Mirabelli referred to Local 1990 representa-
tives, who he observed would be aggressive in their conduct, by
in addition to handing patrons a leaflet, discussing the matter
with them. Mirabelli heard the union representatives talking to
the patrons about “poor starving restaurant” workers not being
able to exercise their rights to representation and that their
families couldn’t get medical care.
Finally, Mirabelli made reference to a demonstration by a
different union, which included two enormous inflated rats.
However, Mirabelli also conceded that the inflatable rats dem-
onstrations took place not on the Columbus Avenue sidewalk,
but on sidewalks on 65th Street near Alice Tully Hall and near
Dante Park.5
Local 100’s organizational activities at the complex resulted
in a number of court actions regarding its rights to engage in
such conduct. In the spring of 1999, the Union applied to the
Parks Department for permission to hold a rally on the Plaza.
The Parks Department referred the Union to Respondent, who
denied the request. The Union consequently filed an action in
Federal District Court, against Respondent and the city among
others, seeking a temporary injunction seeking to enjoin these
parties from preventing the rally. A hearing was held on the
Union’s motion before Judge Lawrence McKenna on June 4,
1999. In Respondent’s response to the motion, it took the posi-
tion that demonstrations or leafleting are not permitted on the
Plaza, but are allowed on the Columbus Avenue sidewalk.
Affidavits submitted by two of Respondent’s representatives so
indicate, and in the Memorandum itself, Respondent argues as
follows:

There is nothing non-viewpoint neutral about a policy that
reserves the Plaza for performance, entertainment, and ar-
tistic-related uses, and denies permission for other organ-
ized activities, such as political rallies electioneering,
demonstrating against domestic or foreign figures who
may be present, and the like—all of which are routinely
excluded from the Plaza, and relegated to the genuinely
public areas adjacent to Lincoln Center, such as Dante
Park, the sidewalks on Columbus, 65th and 62nd Streets,
and Amsterdam, and Damrosch Park. [Emphasis added.]

Moreover, during the argument on the injunction before
Judge McKenna, the attorney representing the city stated that in
the City’s view, the Union is permitted to leaflet “on the citty
[sic] streets,” but not on the Plaza. When asked by the Judge if
there is a different rule for labor speech, the attorney replied
that the rules are the same for any kind of speech, and added
that “City Streets allow for picketing of all sorts all the time.”
However, the city agreed with Respondent’s contention that the
Plaza is a “limited public forum,” and can reasonably be limited

4 Mirabelli conceded that the PETA representatives were not leaflet-
ing on the Columbus Avenue sidewalk.
5 I note that these sidewalks are not included as public areas in the
license agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
to the purpose for which it was established, i.e., artistic per-
formance.
Judge McKenna issued his decision on June 4, 1999, denying
the Union’s request for an injunction. He declined to reach one
issue raised by Respondent that the Plaza was a nonpublic fo-
rum by reason of the city’s license agreement. However, the
Judge found consistent with the position of Respondent and the
city, that the Plaza is a limited public forum Lebron v. National
Railroad Passenger Co., 69 F.3d 650, amended 89 F.3d 39 (2d
Cir. 1995), and that the exclusion of the Union from the Plaza
is lawful since it is viewpoint neutral and reasonable in relation
to the forum’s purpose.
Subsequently, the action came before Judge Kevin Duffy,
who upon consideration of Motions for Summary Judgment,
issued a Memorandum and Order on August 26, 2001, Hotel
Employees v. City of New York Parks Department, 167 LRRM
2127 (2001). Judge Duffy, after reviewing applicable prece-
dent, essentially agreed with Judge McKenna’s conclusions.
Judge Duffy observed, however, that in designated public fo-
rums, where the government has opened it for use by the public
for expressive activity or traditional public forums, where by
tradition it has been devoted to assembly and debate, content
based regulations survive only “if reasonably drawn to achieve
a compelling governmental interest.” General Media Commu-
nications v. Cohen, 131 F.3d 273, 278 (2d Cir. 1997). In a
nonpublic forum or in a limited public forum, which is how
Judge Duffy concluded the Plaza should be categorized, speech
can be limited, if the limitation is reasonable, and not viewpoint
based. Judge Duffy agreed with Judge McKenna that since the
Plaza has been consistently limited to use for performance and
artistic uses, that Lincoln Center’s policy of prohibiting politi-
cal activities on the Plaza is reasonable and not violative of the
Union’s First Amendment Rights.
Judge Duffy therefore granted the Motion for Summary
Judgment filed by the defendant’s, (Respondent and the city)
and denied the Union’s Motion for Summary Judgment. He
therefore dismissed the action.
In March 2000, the Union submitted a request for a permit to
the New York City Parks Department to hold a candlelight vigil
on the Columbus Avenue sidewalk on March 30. The permit
was initially granted by the Parks Department, and the Union
actually picked up the permit. However, on March 29, the
Union received a message that the vigil could no longer be held
on the Columbus Avenue sidewalk, but instead it should be
moved to Dante Park.
On March 30, the Union nonetheless arrived at the sidewalk
as originally approved, and began to set up for the vigil. How-
ever, Christine Hokenberg, of the Parks Department, directed
the police to arrest the demonstrators. Two union officials were
arrested, and the Union then decided to move across the street
to Dante Park to hold the vigil. Respondent was not involved
in this incident, and the Union had no contact with Respon-
dent’s representatives with respect to this matter.
In mid-April, the Union filed an application with the Parks
Department for a rally to be held on May 11 on the Columbus
Avenue sidewalk. On April 25, Hokenberg of the Parks De-
partment wrote to the Union, asserting that the Parks Depart-
ment cannot grant or deny the permit, because the sidewalk is
not under the Parks’ jurisdiction. The application was subse-
quently forwarded to Respondent, who then denied the applica-
tion.
On April 25, the same day that the Parks Department re-
sponded to the Union’s permit request, the president of Re-
spondent and assistant general manager of the Metropolitan
Opera wrote a letter to Mayor Guliani of New York City. The
letter reads as follows:

April 25, 2000

The Honorable Rudolph W. Giuliani
City Hall
New York, NY 10007

Dear Mr. Mayor:

Lincoln Center, as you know, has been an area in
which unions and Other groups have chosen to demon-
strate from time to time. We have Recently been informed
that on May 11th, when the Metropolitan Opera will be
hosting its Pension Fund Gala with the Three Tenors, Lo-
cal 100 of the Hotel Employees and Restaurant Employees
Union plans to hold a demonstration as part of an ongoing
effort by it to force recognition by Restaurant Associates
without an election. Restaurant Associates is the company
that provides food and beverage service at the Met. We
are writing because it became apparent during the last
demonstration Local 100 held several weeks ago on March
30th that the NYPD was unclear about whether to keep the
sidewalk in front of the Lincoln Center complex free of
demonstrators.
The specific area of the Lincoln Center plaza to which
we are referring is the sidewalk on the west side of Co-
lumbus Avenue between 62nd and 65th Streets, directly in
front of the plaza’s main stairway. While Lincoln Center
on certain previous occasions has permitted small numbers
of labor demonstrators to leaflet on that sidewalk, it no
longer will permit any demonstrating there. Over the last
several years, as arts events at Lincoln Center have be-
come more congested, demonstrations have become more
troublesome. The sidewalk is only 14-1/2 fee[t] across
and the stairway is surrounded on either side by walls.
The sidewalk and stairway, however, are the primary route
of ingress and egress for the many thousands of patrons
who, on any given evening, attend performances at the
New York State Theater, Avery Fisher Hall, the Met, and
other Lincoln Center sites. Demonstrators on that already
overcrowded piece of real estate would unacceptably
block the way. They would, as well, create a potential
safety problem, given the continuous flow of taxis and
other vehicles pulling up to that curb to drop off and pick
up riders.
Lincoln Center intends to be vigorous in asserting and
pursuing its rights to keep that area, as well as the rest of
the plaza, free of demonstrators on May 11th and during
any future deomonstrations.

LINCOLN CENTER FOR THE PERFORMING ARTS 1105
Sincerely yours,

Nathan Leventhal, President
Lincoln Center for the Performing Arts. Inc.
Joseph Volpe, General Manager
Metropolitan Opera Association, Inc.

Sometime in April, the Union filed another lawsuit, against
the city, Mayor Guliani, and various other defendants, but not
Respondent, over the failure to grant it a permit to conduct a
rally on the Columbus Avenue sidewalk. Although Respondent
was not a party to the lawsuit, it was summoned by Judge Har-
old Baer to attend a settlement conference on the matter on
May 3rd. After extended discussions, an agreement was
reached by the parties to settle the lawsuit. The agreement was
signed by Respondent, the Union and consented to by the city.
It was signed by Judge Baer on May 10th. The Order reads as
follows:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

HOTEL EMPLOYEES AND RESTAURANT
EMPLOYEES UNION, LOCAL 100,

Plaintiff 00 Civ. 2681 (HB)

-against- ORDER

CITY OF NEW YORK, et al,
Defendants,
---------------------------------------------------------------
Hon. Harold Baer, Jr., District Judge
WHEREAS a mediation conference was held in this matter
on May 3, 2000, at which time the plaintiff reached an agree-
ment with the Lincoln Center or the Performing Arts (“Lincoln
Center”), a third party, to resolve this action (see Agreemet
attached); and
WHEREAS this agreement was signed by plaintiff, Lincoln
Center, and this Court on May 5, 2000; and WHEREAS the
City of New York was present at the conference and consented
to the terms of the agreement; and
WHEREAS the parties agred to be bound by the language of
the Agreement and that the agreement would constitute the
entire accord reached by and between the parties, specifically
the plaintiff and all the defendants named in this action, the
Lincoln Center, and the Metropolitan Opera, all of whom were
present at the mediation; it is hereby
ORDERED that this action against the City of New York
and the named defendants is dismissed with prejudice. The
parties are bound by the terms set forth in the attached agree-
ment.
SO ORDERED.

New York, New York
May 10, 2000

S. Harold Baer
U.S.D.J.

AGREEMENT

Local 100, Hotel Employees and Restaurant Employ-
ees International Union and Lincoln Center for the Per-
formance Arts, Inc. agree as follows:
Lincoln Center contends that the entire campus
bounded by Columbus Avenue, West 62nd Street, West
65th Street, and Amsterdam Avenue, is its property to ad-
minister under its agreement with the New York City De-
partment of Parks. Nonetheless, in order to avoid litiga-
tion at this time, Lincoln Center will not enforce its al-
leged rights of ejection under the trepass laws on May 11,
2000, with respect to a planned rally by those acting in
concert or participation with Local 100, so long as Local
100 comply with the following terms:
1. Local 100’s rally within the area specified below
will not commence before 4:15 p.m. and will conclude by
6:15 p.m.
2. If Local 100 and its supporters seek to rally on the
west side of Columbus Avenue, they are limited to the
sidewalk immediately west of Columbus Avenue in the
areas (i) 8 feet or more northward of the most northerly
steps running from Columbus Avenue toward Avery
Fisher Hall, and (ii) 8 feet or more southward of the most
southerly steps running from Columbus Avenue toward
the New York State Theatre, and shall undertake their
rally on no other portion of Lincoln Center property.
3. Local 100 and those acting in concert of participa-
tion with it will leave Lincoln Center’s property promptly
by 6:15 p.m.
4. No more than 75 people shall participate in the rally
described above in on the western side of Columbus Ave-
nue.
5. The times of the Metropolitan Gala will remain as
set out in the invitation annexed to the Order to Show
Cause filed by this plaintiff in Metropolitan Opera v. Lo-
cal 100 Hotel Employees and Restaurant Employees Int’l.
Union, Index No. 105859/00.
6. This agreement has no precedential effect, and shall
not be cited by either side as having any precedential ef-
fect.

May 3, 2000

AGREED:
____________________________________________
Charles S. Sims
Attorney for Lincoln Center for the Performing Arts,
Inc.
____________________________________________
Joseph Lynett
Attorney for Local 100
____________________________________________
USDJ

D. May 11 and its Aftermath
On May 11, the Union conducted a rally beginning at 4:15
p.m. on the Columbus Avenue sidewalk. The rally consisted of
75 individuals chanting and waving flags. During the rally,
Diaz and three other union representatives also handed out
leaflets to passerbys. Prior to the start of the rally, union offi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
cials including its attorney has a discussion about what was to
happen at 6:15 p.m. (the end of the rally on the sidewalk as per
the court order). They decided that at 6:15 p.m. the 75 people
would go across the street to Dante Park to continue the rally.
However, it was concluded that union representatives would
remain on the sidewalk and continue to distribute leaflets.
They discussed the court order that referred to Local 100 and
those acting in concert will leave Lincoln Center’s property by
6:15 p.m. and concluded that the “understanding” was that the
group of 75 people who were “rallying” would have to leave
the sidewalk, but that leafleting could continue.
Therefore, at 6:15 p.m., the group of 75 went across the
street to Dante Park to continue the rally. Diaz however, con-
tinued to distribute leaflets at the north stairway, after 6:15
p.m., as did one other union representative on the New York
State side of the sidewalk.
At approximately 6:30 p.m., Diaz observed Evelyn Finkel-
stein, Respondent’s general counsel, standing 3 feet away from
him and talking on a cell phone. He overheard Finkelstein say,
“I want Mr. Diaz arrested for leafleting.” After a pause, Finkel-
stein stated “because he’s leafleting.” Diaz said nothing to
Finkelstein, and Finkelstein said nothing to him. Three or four
minutes later Diaz was approached by two New York City
policemen. One of the officers informed Diaz that if he contin-
ued to leaflet he would be arrested for criminal trespassing and
for violation of a court order. Diaz responded that the Union
has always leafleted in the past and it was a public sidewalk.
At that point, Joe Lymett, the Union’s attorney entered the
conversation. Lynett asked the police officers, who is directing
the police to arrest the union representatives. The police officer
did not respond. Lynett then informed the police that if anyone
was arrested the Union’s position was that it would be under
the direction of Lincoln Center. He also mentioned the Union’s
position on the court order. He said, “look this is the rally”
referring to the 75 people across the street, and “these are the
leafleters,” pointing to Diaz and the other leafleters. The police
officer said to Lynett, “I’m going to check with legal.”
The two police officers then walked away and conferred with
a group of other police officials. Diaz continued to leaflet until
7 p.m. and then left. The police officers did not bother Diaz
again.
At some point between 6:30 and 7 p.m., Talamo approached
Diaz. Talamo informed Diaz that he was violating the agree-
ment by leafleting on the sidewalk, and that he, Talamo, would
consult the police about it if he didn’t leave. Diaz replied, “the
hell with the agreement,” and continued to leaflet. Talamo then
spoke to a policeman and asked the police to remove Diaz. The
police officer responded that he was not prepared to take any
action to remove the leafleters. Talamo was not given any
reason why the police declined to do anything in response to his
request.
During the period that Diaz was leafleting on May 11, from
6:16 to 7 p.m., two African American women were passing out
flyers for the Concert Theatre Club. One was standing 3 or 4
feet away from Diaz and the other on the New York State side
of the sidewalk. These two women were not approached by
anyone from Respondent nor the police department. However,
Diaz could not be certain that any of Respondent’s officials
either saw these two women or knew who they were. Diaz did
testify however, that he observed Respondent’s security offi-
cials and the police on top of the Plaza looking towards the
sidewalk where the women were leafleting. Diaz did not con-
front either the police or representatives of Respondent with the
fact that these two women were permitted to leaflet, while he
was being asked to leave and threatened with arrest if he did
not comply.
On September 12, 2000, Sharon Grubin, general counsel for
the Metropolitan Opera, wrote a letter to Daniel Connolly, spe-
cial counsel to the Corporation Counsel of New York City.
The letter makes several complaints about the conduct of the
New York City Police Department in general and a Lt. Albano
in particular. The letter asserts that the police failed to “furnish
adequate protection from Local 100’s misconduct on at least
three occasions.” These occasions included May 11, wherein
Grubin’s letter asserts that “you probably recall that on May 11,
both Evelyn Finkelstein and I were required to call you from
the midst of the demonstration because Lt. Albano was not
enforcing the law (not to mention the consent order reached
with Judge Baer.” The letter made reference to the fact that the
police did ask Diaz to leave, but that he would not go, but that
the police refused to arrest Diaz.
The letter further mentions an upcoming event September
25, the Met’s opening night, and demands that the police en-
force the law in the event of another demonstration by Local
100.
Connolly responded by letter dated September 21. He de-
fended the actions of the police on May 11, as having acted in
“direct consultation with me and with Corporation Counsel
Michael D. Hess, in a fashion that allowed Union to conduct
their demonstration without causing any interference to activi-
ties held at Lincoln Center that evening.” Connolly concludes
the letter by assuring Grubin that the New York Police Depart-
ment will carry out their duties properly on September 25, and
that if anyone violates the law, the New York City Police De-
partment will take action. However, as we have repeatedly
discussed, a individual participating in constitutionally pro-
tected activities on a sidewalk open to the public (regardless of
where the proprietary interest of such sidewalk lies) in a nonob-
structive or harassing manner is not violating the law.
Grubin responded to Connolly by letter and fax on Septem-
ber 22. After responding to several contentions made by Con-
nolly, Grubin makes reference to the penultimate sentence in
his letter. She asserts that what is obstructive and harassing”
have already been defined at least in part by, Judge Preska.
Grubin adds that there is “currently a federal injunction in place
preventing, inter alia; trespass and blocking of ingrress to and
egress from the very property to which you refer, that you seem
to think need not be enforced.”
The record does not reflect what Federal injuction Grubin
was referring to. However, from the correspondence between
Grubin and Connolly, it appears that the Metropolitan Opera
filed an action under the Norris LaGuardia Act, accusing the
New York City police department of failing to protect Lincoln
Center’s property. It appears that Judge Preska, after a hearing
found that the New York City police department, had in fact,
failed to furnish adequate protection, and his appears to be the
LINCOLN CENTER FOR THE PERFORMING ARTS 1107
injunction referred to in Grubin’s letter. However, the record
here does not reflect what evidence was presented at the hear-
ing before Judge Preska to establish that either the New York
City police department failed to furnish adequate protection on
May 11, or that as Grubin seemingly suggests that the Union
had “blocked ingress to egress from the very property to which
you refer” on May 11. In any event, it is clear that no such
evidence was adduced on this record, that Diaz or any union
representative blocked egress or ingress to the property on May
11, or any other day.
Between May 11 and June 28, Diaz continued to leaflet once
or twice a week on the Columbus sidewalk, between 6:30 and
8:30 p.m. There was no interference of the leafleting by either
Respondent or the New York City Police Department.
However, on June 26 at 7 p.m., five Local 11 organizers
were observed by Respondent’s security officials distributing
leaflets at the Damrosch New York Pops Concert and on the
sidewalk along Columbus Avenue and the Inner Roadway.
Dan Fletcher, a security official of Respondent, in the presence
of New York City police department officers, informed the
leafleters that they were in violation of a Federal court order,
and they departed without further incident.6
E. June 28
Michelle Travis, a research analyst for the Union, went to the
Columbus Avenue sidewalk on June 28, and at about 5:45 p.m.
along with an intern from the Union and began to distribute
“Ralph Nader for President” leaflets. She did this because of
the incidents on May 11, as well as June 26, described above
where Local 100 representatives were either prevented from
leafleting by Respondent’s officials, and or threatened with
arrest. Thus, the Union wanted to see if other organizations
were being treated differently than Local 100 leafleters.
After about a half hour, Travis and the intern were ap-
proached by Talamo and Kennedy. Talamo told Travis that
they could not leaflet on the sidewalk, that Respondent had
been having a problem with aunion, that there was a court or-
der; and they would have to leave. Travis responded by asking
“about everybody else,” referring to other leafleters from Club
Free Time who were leafleting at the time, and a United Home-
less Organization that had set up a table. Travis asked if these
groups had to leave as well? Talamo responded that they were
going to go over there and tell them to leave as well.
Talamo added that if they wanted to continue to leaflet, they
could go across the street to Dante Park. If not, they could be
arrested.
Travis then asked, “[W]hat does a Union have to do with us?
Talamo replied, “that the Union is watching us very closely.
We have to be consistent.” Talamo again mentioned a court
order, and added that was why everyone has to leave the side-
walk, and no longer leaflet there. Talamo concluded by telling
Tavis, “If you go across the street and leaflet, if everything is
okay, maybe in 15 minutes you can come back and leaflet.”
Travis and the intern complied with Talamo’s order, and went

6 The above finding is based on a memo from Respondent’s file
from Vincent Kennedy, director of security to Mirabelli. The record
does not disclose if Diaz was one of the union organizers involved in
this incident.
across the street. She noticed that Talamo and Kennedy went
over to speak to the Club Free Time leafleters, and said some-
thing to them, and they immediately went across the street to
Dante Park to continue their leafleting. Travis did not see Ken-
nedy or Talamo speak to the United Homeless Organization
group, but 15 minutes later, she noticed that this group was
gone from the sidewalk. Travis did not attempt to resume leaf-
leting on the sidewalk in 15 minutes, as Talamo had suggested.
Also on June 28, Diaz decided to leaflet on the Columbus
Avenue sidewalk. However, with the events of May 11 and
June 26, in mind, he called the New York Park Department to
advise them that the Union would be leafleting later that eve-
ning. Diaz was then informed by a New York Police Depart-
ment officer that if he leafleted, “you guys will be arrested.”
Nonetheless, at 6:30 p.m., Diaz, plus three other union repre-
sentatives, arrived at the Columbus Avenue sidewalk. They
began to leaflet, and Talamo immediately approached them.
Talamo said that Diaz and the other organizers could not leaf-
let, because they would be in violation of a court order. Ta-
lamo added that they would be arrested if they did not leave.
Diaz asked to see the court order, but Talamo refused to show
him one. Talamo then walked up to the Plaza, and spoke to a
police office. Two or three minutes later, Diaz was approached
by that police officer. The officer told Diaz and the others that
if they didn’t leave they will be arrested for criminal trespass-
ing and violation of a court order. Diaz asked who the com-
plainant would be if they were arrested? The police officer
then walked up the stairs to where Talamo was, spoke to Ta-
lamo, and returned to Diaz. He handed Diaz, Talamo’s card,
and stated that Talamo would be the complainant. Diaz and the
other union representatives then left.
F. July 1
On July 1, Diaz went to the vicinity of the Columbus Avenue
sidewalk at 6:30 p.m. He sat on a bench in Dante Park, and
observed various individuals from several organizations leaflet-
ing on the sidewalk until 9 p.m. He crossed the street, collected
the leaflets, noted the time on the leaflet and returned to his
bench. In that connection he collected four leaflets, including
one from “Concert Club,” one from Jews for Jesus, one from
Club Free Time, and one from The Manhattan Ballroom Soci-
ety.
At about 8 p.m., Diaz approached Police Office Kennedy,
who is one of the officers regularly stationed at Lincoln Center.
Diaz informed Kennedy that he had seen different people from
different organizations leafleting, and asked why Kennedy had
not told them to leave, or threatened them with arrest. Kennedy
replied, “It’s up to Lincoln Center.” Diaz answered that he
understood, and returned to his bench across the street.
Approximately 15–20 minutes later, Diaz saw Daniel
Fletcher, Respondent’s associate director of security approach
Officer Kennedy. At that time there were two Africian Ameri-
can women distributing leaflets, and one male distributing a
Jews for Jesus leaflet on the Columbus Avenue sidewalk.
Fletcher and Kennedy had a conversation, but Diaz could not
hear what was said. However, Diaz testified that Fletcher was
looking in the direction of the leafleters while he was talking to
Kennedy. After the conversation, Fletcher turned around and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
walked away. Neither Kennedy nor Fletcher made any attempt
to remove the leafleters, who continued to leaflet until 9 p.m.
G. July 6
On July 6, Diaz and other union representatives began to
leaflet on the Columbus Avenue sidewalk. Fletcher approached
the officials, and said that they cannot leaflet there and they
would be arrested for criminal trespassing, and violation of a
court order. Diaz asked to see the court order, but Fletcher
refused to show it to him. Fletcher then called over a New
York Police Department Officer. The officer asked what was
going on? Diaz replied, that the Union was leafleting which
they have a right to do, and that Fletcher had said that the Un-
ion could not leaflet and would be guilty of criminal trespass in
violation of a court order if they continue. The officer in-
structed Fletcher to produce the court order. Fletcher then went
inside the Metropolitan Opera House. A few minutes later Diaz
observed Fletcher speaking to the police officer on the Plaza;
and showing him a document. The police officer then walked
down to the sidewalk and informed Diaz that the Union can
leaflet on the sidewalk, there is no court order prohibiting leaf-
leting the sidewalk and the court order that he saw pertains to
the Plaza.
Diaz and the other union representatives continued to leaflet
that day, and have continued go leaflet on the sidewalk without
interference on a regular basis, since July 6.7
As related above, in September, correspondence between
Grubin and Connolly (copies of which were sent to Finkel-
stein), detailed dissatisfaction of the Metropolitan and Respon-
dent with the New York Police Department’s failure to arrest
Local 100 demonstrators on May 11, as well as other dates.
Both Mirabelli and Talamo furnished testimony on this subject.
According to Talamo, both before and after February 26,
when he would see leafleters on the Columbus Avenue side-
walk or his staff would ask them to leave. If the leafleters re-
fused to leave, he would consult with the police, and tell them
that Respondent has control over the sidewalk based on its
agreement with the Parks Department and Respondent wanted
them removed. The New York Police Department would tell
Talamo that they “were unprepared to take any action.” Ta-
lamo testified that he was aware that his supervisors had made
complaints to the Local commanding officer of the precinct
about the New York Police Department’s failure to comply
with Respondent’s request to remove and or arrest the leaf-
leters. Talamo asserts that he was informed that the command-
ing officer had checked with the New York Police Depart-

7 My findings detailed above concerning the events of May 11th,
June 28th, July 1st, and July 6th is based on a compilation of the cred-
ited testimony of Diaz, Travis and Talamo, as well a video tape of the
May 11th incident. Neither Fletcher nor Finkelstein testified herein.
To the extent that the record reveals some conflicts between the testi-
mony of Diaz and Travis on the one hand and Talamo on the other, I
have generally credited Travis or Diaz, since I found them to be more
believable witnesses. However, I have credited Talamo’s testimony
concerning his exchange with Diaz on May 11th, although Diaz did not
recall any discussion with Talamo on that date. I note that Diaz did not
deny Talamo’s testimony in this regard, and did not deny saying “the
hell with the court order,” as testified to by Talamo.
ment’s legal department, and that based on legal advice, were
not willing to arrest anyone for leafleting on the Columbus
Avenue sidewalk.
Mirabelli testified that the main purpose of the April 25 letter
to Mayor Guliani, was that the New York Police Department
was not enforcing Respondent’s rights of control over the side-
walk, and Respondent wanted the city to be clear about its posi-
tion.
According to Mirabelli, when Respondent would ask the po-
lice for help in removing leafleters from the sidewalk they
would assist in asking them to move, but not necessarily arrest
them. Mirabelli recalled one specific occasion when he ob-
served Local 100 leafleting on the sidewalk, and he asked a
policeman what he was going to do about it. The officer re-
plied that he would have to check with someone. Mirabelli was
then informed that the police had checked with their counsel
and the New York Police Department was not going to remove
or arrest the leafleters. Mirabelli also discussed the meeting
that was held prior to the April 25 letter, with various represen-
tatives of Respondent and the constituent groups of Lincoln
Center including Grubin. He reiterated that the letter was to get
the focus of the mayor to deal with the New York Police De-
partment to get them to enforce Respondent’s rights to the
sidewalk.8
Mirabelli conceded that in the course of that meeting, it was
expressed that notwithstanding the existence of the license
agreement, the New York Police Department felt that Respon-
dent did not have the right to remove leafleters from the side-
walk, and that that New York Police Department would not
remove or arrest such individuals. Mirabelli added that he was
informed that the New York Police Department felt that they
(the New York Police Department) did not have the authority to
remove or arrest people leafleting on the sidewalk.
III. ANALYSIS AND CONCLUISIONS
A. The 10(b) Issue
Respondent contends that Section 10(b) of the Act precludes
consideration of the complaint allegation that Respondent vio-
lated the Act on June 28. In that regard, it contends that the
original charge, filed on May 9, alleges that Respondent vio-
lated Section 8(a)(1) of the Act by threatening to file criminal
trespass charges against Local 100 for engaging in protected
conduct on city sidewalks outside Lincoln Center.
Respondent also asserts that it was not during the investiga-
tion of the charge, put on notice of the June 28 allegation, and
was not so notified until the complaint was issued on March 30,
2001, nearly a year later, which alleged violations both on May
11 and June 28.
Respondent further argues that in view of the above facts,
and the failure of the Union to file new or amended charges,
that Respondent was prejudiced by its inability to respond to
the June 28 allegation, and that it was denied procedural due
process.
I do not agree.
Initially, I note that there is no significant variance between
the charge and the complaint. All complaint allegations relate
8 Respondent received no reply to the April 25th letter.
LINCOLN CENTER FOR THE PERFORMING ARTS 1109
to events that occurred within 6 months of May 3, as both May
11 and June 28, and well within 6 months of the charge.
With respect to Respondent’s complaint that it was not noti-
fied of the June 28 allegation during the investigation, I note
that Respondent was given the opportunity to present evidence
to the Region on the issue, after it became aware of the allega-
tion, but chose not to do so. More importantly, “it is not the
function the charge to give notice to a respondent of the spe-
cific claims made against him. Rather that is the function of the
complaint.” Redd-I, Inc., 290 NLRB 1115, 1116–1117 (1988).
Here, Respondent had ample opportunity to defend against the
allegation of unlawful conduct on June 28, since the complaint
so alleged, and that is all that is required to establish procedural
due process. Redd-I, supra at 1117.
Moreover, even if I were to consider the complaint allegation
relating to June 28 as outside the 10(b) period, such allegations
are permitted if they are closely related to the allegations of the
timely filed charge. Redd-I, supra; Nickles Bakery of Indiana,
296 NLRB 927, 928 (1989). In assessing the issue of whether
complaint allegations are closely related to the charge, the
Board considers the following factors:

First, the Board will look at whether the otherwise un-
timely allegations involve the same legal theory as the al-
legations in the pending timely charge. Second, the Board
will look at whether the otherwise untimely allegations
arise from the same factual circumstances or sequence of
events as the pending timely charge. Finally, the Board
may look at whether a respondent would raise similar de-
fenses to both allegations. [Nickles Bakery, supra at 928.]

Here, all three of the factors related above are clearly met.
The complaint allegations involve same illegal theory as in the
charge. The charge alleges threats to file criminal trespass
charges against Local 100 agents for protected activities on city
sidewalks. The complaint allegations in question, allege threats
to arrest, causing the police to threaten to arrest union represen-
tatives handing out leaflets; and rely on the same section of the
Act, as well as the same legal theory; i.e. Respondent did not
have a sufficient property interest in the sidewalk to ban leaf-
leters and to threaten leafleters with arrest.
Secondly, the complaint allegations arise from the same fac-
tual circumstances or sequence of events as the pending
charges. Thus, the allegations on May 11 and June 28 involve
similar conduct, during the same time period, and with a similar
object. Redd-I, supra at 1118.
The Respondent argues that this factor is not satisfied, be-
cause the June 28 allegation does not arise from the same fac-
tual circumstances and sequence of events as the charge filed 2
months earlier, citing Nickles Bakery, supra at 928. However,
Respondent’s reliance on Nickles Bakery is misplaced. That
case merely held that the “by these and other acts” language in
the charge, is not in itself sufficient to meet the closely related
test, required by Redd-I. The fact that June 28 is 2 months after
the date of the charge is of no consequence. What is of conse-
quence, as related above, is that June 28 alleged conduct is
similar to the conduct alleged in the charge, is during the same
time period, and is with a similar objective to prevent union
organizers from engaging in protected activities.
Finally, the Board looks to whether Respondent would raise
the same or similar defenses to both allegations. Here, it is
clear that Respondent would and in fact has raised similar de-
fenses to its conduct on both May 11 and June 28. Thus, Re-
spondent’s primary defense to its conduct, and in fact, the key
issue to be determined herein is whether Respondent by virtue
of its license agreement with the city, has a sufficient property
interest in the Columbus Avenue sidewalk, to enable it to evict
or threaten to arrest leafleters from Local 100 for leafleting on
that sidewalk. Respondent has raised that defense with respect
to both its conduct on May 11 and June 28.
Accordingly, based on the foregoing, I reject Respondent’s
10(b) defense, dismiss its affirmative defenses in that regard,
and shall proceed to evaluate all allegations of the complaint.
B. Employee Status
Respondent asserts that no violation of Section 8(a)(1) of the
Act can be found, since none of its employees were implicated
in any way by the alleged unfair labor practice. In that regard,
Respondent notes that the underlying dispute between RA and
the Union did not involve any of Respondent’s employees.
Therefore, it asserts that it cannot be found to have violated the
Act, since it could not “threaten coerce or restrain employees
whom it does not employ, in the exercise of rights [sic] guaran-
teed under Section 7 of the Act.”
I disagree.
Board law, supported by the courts, is clear that acts of un-
ions and their agents can be protected under the Act. Employ-
ees of employers other than Respondent have Section 7 rights,
and even if these interests are not congruent with or even anti-
thetical to the interests of the Respondent’s employees their
concerted pursuant of those interests, through Unions, or oth-
erwise, is protected by Section 7 of the Act. BE & K Construc-
tion Co., 329 NLRB 717, 724–725 (1999), enfd. 246 F.3d 619,
626 (6th Cir. 2001); Petrochem Insulation, 330 NLRB 47, 49
(1999); enfd. 240 F.3d 26, 29–30 (D.C. Cir. 2001); Golden
Stevedoring Co., 335 NLRB 410, 413 (2001); and Bristol
Farms, 311 NLRB 437, 438 fn. 8 (1993).
Accordingly, whether or not Respondent’s employees are in-
volved in the dispute between RA and Local 100 is irrelevant to
the question of whether or not Local 100’s conduct in distribut-
ing leaflets on the Columbus Avenue sidewalk is protected
concerted activity. I find that such activity is clearly protected.
C. Respondent’s Alleged Promulgation of and Disparate En-
forcement of a Policy of Excluding Leafleters on the Columbus
Avenue Sidewalk
The primary issue to be decided herein, as discussed more
fully below, is whether Respondent had a sufficient property
interest in the Columbus Avenue sidewalk to evict or exclude
union leafleters. However, General Counsel also has alleged an
alternative theory for a violation, that is viable even if Respon-
dent demonstrated that it had an adequate property interest in
the Columbus Avenue sidewalk.
Thus, General Counsel contends and the complaint alleges
that Respondent on April 25, promulgated a policy not to per-
mit demonstrators or leafleters on the sidewalk, and thereafter,
maintained and disparately enforced this policy to discourage
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
employees from joining or assisting the Union or engaging in
other concerted activities.
Respondent denies that its actions on April 25, represented a
change of policy, but asserts that it was merely a reaffirmation
of its previous position that it would not permit demonstrations
or leafleters on the sidewalk. Further, it contends that General
Counsel has not presented sufficient evidence to establish dis-
parate application of its policy.
While Respondent’s witnesses contend that its policy was to
prohibit leafleting on the sidewalk, the evidence of record is to
the contrary. Thus, Diaz’s credible testimony establishes that
starting in March of 1999, for over a year, he and other Local
100 representatives regularly leafleted on the sidewalk without
any interference from Respondent’s officials. Moreover, he
observed other groups leafleting during this period of time, also
without any effort by Respondent to stop such conduct.
Moreover, Respondent’s letter to Mayor Guliano, dated
April 25, in effect concedes that it instituted a new policy, by
stating that while, in the past has permitted “small” numbers of
labor demonstrators to leaflet on the sidewalk, it will no longer
permit any demonstrating there.” Further, during the Union’s
lawsuit in 1999 with respect to holding a rally on the Plaza,
both Respondent and the city took the position, that while dem-
onstrations were not permitted on the Plaza, that the Union
could and should confine its activities to public areas, including
the Columbus Avenue sidewalk.
Indeed, even a close examination of the testimony of Re-
spondent’s witnesses, concedes that although Respondent may
have always had a policy of prohibiting leafleting on the side-
walk, that in practice it had not diligently enforced that policy,
but instead was more concerned with preventing such activity
on the Plaza. Thus, even crediting that testimony, it is clear
that in early 2000, Respondent changed its policy from lax and
sporadic enforcement of a policy to more vigorous enforce-
ment. This action represents a change of policy, which is
equally unlawful, as if it was a new policy, assuming that it was
motivated by protected conduct. Jordan Marsh Stores, 317
NLRB 460, 462 (1995). (Promulgation and enforcement of a
previously ignored rule in response to union activities.) Auto-
motive Plastic Technologies, 313 NLRB 462 (1993) (Prohibi-
tion of handbilling based on a rule never communicated to em-
ployees, found to promulgated in response to employees union
handbilling.); Hyatt Regency Memphis, 296 NLRB 259, 260–
262 (1989). (More stringent enforcement of, sign-in, sign out
rules in response to union activities of employees.)
While Respondent claims that on February 26, it issued a
memo to its staff, merely reaffirming its previous policy, a
close examination of that memo does not support that testi-
mony. Thus, the memo makes no mention that it is a reaffirma-
tion of an existing policy, and the import of it is clearly that it is
a new policy. I note particularly that the last sentence indicates
“these instructions are in addition to standing orders concerning
demonstrations and distributing leaflets on Robertson Plaza.”
This statement strongly indicates that previous to this date there
had been no “standing orders” concerning distribution of leaf-
lets on the sidewalk, but only on the Plaza, and that the memo
was for the purpose of establishing a policy for the sidewalk.
However, as noted whether it is considered a new policy in-
stituted by Respondent, or merely a reaffirmation of a policy
that had not regularly enforced, makes no difference in assess-
ing the lawfulness of Respondent’s conduct. The issue is the
motivation for Respondent’s new policy or change of enforce-
ment of an old policy. It is to that issue that I now turn.
In my view, the evidence overwhelmingly supports General
Counsel’s assertion, that Respondent’s decision was, motivated
by Local 100’s protected conduct. Indeed, Respondent’s letter
to Mayor Guliani makes specific reference to the Union’s dis-
pute with RA and its intent to demonstrate on May 11 on the
Columbus Avenue sidewalk. Moreover, the testimony of Re-
spondent’s own witnesses confirms this conclusion.
Thus, Mirabelli and Talamo both admit that one of the rea-
sons that Respondent decided to issue the February memo was
that Local 100’s leafleting on Columbus Avenue began to in-
crease. Mirabelli added that such activity became troublesome
to him, because the leafleters became “a lot more pushy, a lot
more aggressive, they weren’t politely offering a leaflet, now
they were engaging in argumentative discussion and debate.”
When asked for examples of such conduct, Mirabelli recalled
hearing union representatives talking to the patrons about “poor
starving restaurant workers,” not being able to exercise their
rights to get representation and that their families could not get
medical care. While Mirabelli or indeed Lincoln Center’s pa-
trons, might consider such conduct “pushy and aggressive”
such conduct is still protected concerted activity. It thus ap-
pears that while Respondent initially tolerated the Union’s dis-
tribution of leaflets for nearly a year, that it decided to prohibit
such activity, when the leafleting increased and when it was
accompanied by oral conversations with patrons by the leaf-
leters. Since all of this conduct by the leafleters is clearly pro-
tected concerted activity, Respondent cannot lawfully prohibit
the leafleting because it believes that its patrons might not wish
to be subject to such activity.
Further evidence supporting the conclusion of discriminatory
motivation can be found in Respondent’s conduct on June 28.
Thus on that day, Travis was distributing Ralph Nader leaflet
on the Columbus Avenue sidewalk, and was ordered to leave
by Talamo. Talamo informed her that Respondent had been
having a problem with a Union and she would have to leave.
When Travis asked what a Union has to do with their leafleting
on behalf of Ralph Nader, Talamo replied that, the “Union is
watching us very closely. We, have to be consistent.” This
exchange demonstrates that Respondent’s concerns about leaf-
leting was centered on Local 100, and that it only ordered what
it believed to be Ralph Nader leafleters to leave, in order to be
consistent with its policy towards the Union. Indeed, later on
that evening, Respondent did order Diaz to cease leafleting on
the sidewalk.
An examination of the other alleged reasons given by Re-
spondent’s witnesses, for its policy change, only serves to rein-
force this conclusion, that it was in response to protected con-
duct. Thus, both Mirabelli and Talamo made reference to dem-
onstrations by PETA as another reason for its decision to vig-
orously enforce its prior alleged rules. However, it is clear
from their testimony, that while the PETA demonstrations in-
volved conduct amounting to an assault on patrons, this activity
LINCOLN CENTER FOR THE PERFORMING ARTS 1111
took place on the Plaza or on the steps at the top of the stair-
way, and not on the sidewalk. Thus since it is clear that Re-
spondent had consistently prohibited any leafleting or demon-
strations on the Plaza, the PETA conduct could not have had
any bearing on Respondent’s decision to change its policy with
regard to the sidewalk. Similarly, Mirabelli testified that he
also considered demonstrations by another Union with inflat-
able rats that occurred 3 or 4 years before on 65th Street near
Alice Tully Hall. That testimony is simply not believable,
since it is not likely that demonstrations 3 or 4 years ago on
65th Street would have any bearing on a decision to exclude
leafleters on the Columbus Avenue sidewalk. In any event, that
conduct (the demonstration by the other union) is also protected
and concerted, and couldn’t lawfully be considered by Respon-
dent in its decision to change its policy.
While Respondent’s witnesses, as well as the April 25 letter
to the Mayor raised alleged safety and overcrowding concerns,
I do not believe that this was a major factor in its decision. I
note that the distribution of leaflets by two to four leafleters
cannot rationally be construed as having significant effect on
ingress or egress for patrons. In any event, even if safety or
overcrowding concerns, were part of the reason for Respon-
dent’s decision to change its policy, it has not shown that it
would have taken the same action, absent the Union’s protected
concerted conduct. Wright Line, 251 NLRB 1083 (1980).
Indeed, there is not an scintilla of evidence that during the Un-
ion’s leafleting on May 11 or June 28, that anyone’s egress or
ingress was blocked by any of the leafleters, or that any safety
problems resulted from the leafleting.
Accordingly, based on the foregoing, I conclude that Re-
spondent’s change of policy, by deciding to ban all leafleting
on the Columbus Avenue sidewalk, was motivated by the pro-
tected concerted conduct of Local 100 representatives, and that
Respondent has thereby violated Section 8(a)(1) of the Act.
Jordan Marsh, supra; Hyatt Regency, supra; Automotive Plas-
tics, supra, See also Youville Health Care Center, 326 NLRB
495 (1998) (employer precipitously adopted a new rule regard-
ing discussion of working conditions, in order to interfere with
Section 7 rights); Mini-Togs, Inc., 304 NLRB 649, 651 (1991).
(Employer promulgated rule prohibiting nonemployees, from
handing out union literature in its parking lot, in response to
union activity.)
Furthermore, while an employer may prohibit nonemployee
union representatives from distributing union literature on its
property (subject to exceptions not relevant here), it may not
allow nonunion organization organizations to engage in solici-
tation and distribution on the employer’s property, while deny-
ing the same privilege to unions. NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956); Price Chopper, 325 NLRB 186
(1997), enf. 163 F.3d 177 (10th Cir. 1998); Sandusky Mall Co.,
329 NLRB 618, 620–621; Be-Lo Stores, 318 NLRB 1 (1995),
enf. denied in relevant part 126 F.3d 268 (4th Cir. 1997); and-
Lucille Salter Packard Children’s Hospital, 318 NLRB 433
(1995), enfd. 97 F.3d 583 (D.C. Cir. 1996).
I agree with General Counsel that it has adduced sufficient
evidence of disparate treatment to fall within the above cited
cases, and that contrary to Respondent’s assertion, the fre-
quency of permitted nonunion activities, exceeds the “tolerance
of isolated beneficient solicitation,” that the Board regards as a
narrow exceptions to, on otherwise valid, nondiscriminatory
policy—Sandusky Mall, supra; Hammary Mfg., 265 NLRB 57
fn. 4 1982).
In that connection, I preliminarily note my finding above that
Respondent discriminatorily promulgated its change of policy
to totally exclude leafleting on the Columbus sidewalk. This,
finding is significant in assessing the issue of disparate treat-
ment. Price Chopper, supra (Board finds that where employer
applied in unwritten policy, hastily implemented in the face of
Union’s organizing, and excluded the Union from its property,
under different circumstances in which no others outside or-
ganization has been excluded, a discriminatory motive lies
behind the exclusion).
Here the evidence discloses that on May 11, at the very same
time that Respondent attempted to evict union representatives
through the conduct of Finkelstein9 and Talamo, there were two
African American women distributing concert club leaflets.
While Diaz could not be certain that any of Respondent’s rep-
resentatives observed these individuals, he did testify credibly
that he observed Respondent’s security officials looking to-
wards the sidewalk where these women were leafleting. I find
it reasonable to conclude, which I do, that in fact, Respondent’s
did observe these women and made no effort to evict them.
I note in this regard that Finkelstein did not testify and al-
though Talamo did testify about the events of May 11, he did
not testify as to whether or not he observed these leafleters for
the concert club, or any other groups leafleting on May 11. In
these circumstances it is appropriate to me to draw an adverse
inference against Respondent, and conclude that had Finkel-
stein or Talamo testified that they would have testified that they
observed these women leafleting on May 11, and took no action
to have them removed. National Association of Government
Employees (IBPO), 327 NLRB 676, 699 (1999); United Parcel
Co., 321 NLRB 300 fn 1 (1996); Ready Mix Concrete, 317
NLRB 1140, 1143 fn. 16, 19 (1995); and International Auto-
mated Machines, 285 NLRB 1122, 1123 (1987).
Similarly, on July 1, Diaz although not leafleting on that day,
observed the Columbia Avenue sidewalk for 2-1/2 hours. Dur-
ing that period of time he observed leafleters from four differ-
ent groups leafleting for substantial periods, without any inter-
ference from any representatives of Respondent or the New
York Police Department. In fact, during this period of time,
Diaz complained to Police Officer Kennedy why these groups
were not being asked to leave or threatened with arrest (as had
Local representatives). Kennedy replied, “It’s up to Lincoln
Center.”
A few minutes later, Diaz observed Kennedy talking with
Dan Fletcher, Respondent’s associate director of security.
While Diaz did not hear the conversation, he did observe
Fletcher looking toward the direction of the leafleters during
the conversation. After the discussion, Fletcher turned around
and walked away. Neither Kennedy nor Fletcher made any
attempt to remove the leafters. I find based on these facts, that
Fletcher observed the leafleters from these other groups, was

9 My findings with respect to Finkelstein’s conduct are more fully
detailed below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
aware of that they were not from Local 100, and chose not to
attempt to remove them. Once more I note that Fletcher was
not called to testify, and I again draw an adverse interference,
based on the authority cited above, that if called to testify, he
would have testify as detailed above.
Respondent argues that the events of June 28 established that
Respondent treated all groups equally. However, I cannot
agree. While the evidence does disclose that on that date, Ta-
lamo evicted Travis, who was distributing Ralph Nader leaflets,
as well as other groups on that day, his conversation with
Travis while asking her to leave is quite revealing of discrimi-
natory motivation. Thus, Talamo informed Travis that Re-
spondent was having trouble with a union and she would have
to leave. When Travis (who did not identify herself as a union
official) asked what the Union had to do with her leafleting for
Ralph Nader, Talamo replied, “[T]he Union is watching us
closely. We have to be consistent.” Talamo then suggested
that she go across the street and leaflet, and if “everything is
okay, maybe you can come back and leaflet.”
This exchange forcefully demonstrates that Respondent’s
policy was solely motivated by its desire to remove Local 100
leafleters, and that it had little concern with leafleters from
other groups. Indeed on that very day, June 28, Talamo threat-
ened to arrest Diaz and other union representatives when they
began leafleting and enlisted the assistance of the New York
Police Department to remove them from the sidewalk.
Respondent also argues that no discriminatory disparate
treatment can be found, since admittedly for almost the entire
period that Local 100 leafleted from April 1999 and continuing
to the date of the hearing, union representatives were permitted
to leaflet on the Columbus Avenue sidewalk without interfer-
ence.
However, while that may be true, based on the testimony of
Respondent’s own witnesses, its policy at least as of February
26, was to vigorously exclude any leafleters from the sidewalk.
In practice, it did attempt to evict Local 100 representing on
May 11, and did so on June 28. The record also reveals that on
June 26, Fletcher, in the presence of New York Police Depart-
ment officers, ordered Local 100 representatives to cease leaf-
leting on the Columbus Avenue sidewalk. On July 6, Fletcher
informed Diaz, who was leafleting on the sidewalk, that he
could not leaflet there, and would be arrested if he continued.
While the complaint does not allege that Respondent violated
the Act on these dates, and therefore I do not so find, I can and
do consider these events as relevant to the disparate treatment
allegations. Thus, the record discloses that over a period of less
than 2 months, Respondent on four different occasions at-
tempted to and or did evict union representatives from the Co-
lumbus Avenue sidewalk, while permitting other groups as
detailed above to leaflet, without any interference. It is also
notable that Fletcher, the very same official of Respondent who
evicted Diaz on July 6, observed several groups leafleting on
July 1, and made no effort to remove them. Further, Talamo
and Finkelstein, who were involved in Respondent’s attempts
to remove union representatives on May 11, observed two other
leafleters, at the very same time, and made no attempt to re-
move these individuals.
The fact that Respondent did not attempt to evict Local 100
representatives on other days, I attribute to the fact that the
New York Police Department refused to arrest them, as re-
quested by Respondent, and Respondent believed that any other
attempts to evict them would not be successful.10
Accordingly, in these circumstances, I find that sufficient
evidence of disparate treatment has been adduced, which cou-
pled with Respondent’s unlawful promulgation of its new pol-
icy towards leafleting on the sidewalk, leads me to conclude
that Respondent’s attempts to evict the Union’s representatives
were discriminatorily motivated, and violative of the Act,
whether or not it had an adequate property interest in the side-
walk.
D. Respondent’s Property Interest
It is beyond question that an employer’s exclusion of union
representatives from public property violates Section 8(a)(1) of
the Act, so long as the union representatives are engaged in
activity protected by the Act. Bristol Farms, Inc., 311 NLRB
437 (1993). It is also clear that an employer may prohibit so-
licitation or distribution by nonemployee union representatives
on its property if reasonable efforts by the union through other
methods are available to enable it to convey its message, and if
the employer’s prohibition does not discriminate against the
union by permitting others to solicit or distribute. Lechmere
Inc. v. NLRB, 502 U.S. 527 (1992).
However, a significant issue arises where an employer pro-
hibits or excludes nonemployee representatives from engaging
in protected conduct on property owned by someone else, but
where the employer asserts that it has a property interest in that
area, sufficient to exclude these representatives. In such a case,
the employer must meet a threshold burden of establishing that
it had at the time it expelled the union representatives a prop-
erty interest that entitled it exclude individuals from the prop-
erty. Wild Oats Markets, Inc., 336 NLRB 179, 180 (2001);
Indio Grocery Outlet, 323 NLRB 1138, 1141–1142 (1997),
enfd. 187 F.3d 1080 (9th Cir. 1999), cert. denied. 529 U.S.
1098 (2000); Nicks, 326 NLRB 997, 1001–1002 (1998), enf.
granted in part and denied in part, 222 F.3d (1030) (D.C. Cir.
2000), vacated and rev. in part 332 NLRB 1424 (2000). In
determining the character of an employer’s property interest,
the Board examines the language of a lease or other pertinent
agreements, in conjunction with the law of the State in which
the property is located. Wild Oats, supra; Food for Less, 318
NLRB 646 (1995), enfd. in relevant part as 95 F.3d 733 (8th
Cir. 1996).
Applying the principles of the above cases to the instant
case, Respondent has the burden of establishing that had a suf-
ficient property interest in the sidewalk to exclude the union
representatives from leafleting on the Columbus Avenue side-
walk. In that regard Respondent relies solely on the license
agreement that it executed with the city, which gives it the right
to “maintain” and “manage” and “schedule events” in the “pub-

10 I note that generally when Respondent demanded that the Local
100 representatives leave the sidewalk, they would refuse. Although at
times the New York Police Department would assist in trying to re-
move the leafleters, the evidence discloses the New York Police De-
partment would not arrest the leafleters as demanded by Respondent.
LINCOLN CENTER FOR THE PERFORMING ARTS 1113
lic areas,” which includes the Columbus Avenue sidewalk.
However, Respondent has cited no authority either under New
York law or Board law, which supports its view that such a
license agreement, permits it to exclude union representatives
engaged in protected conduct.
Since it is admitted that whatever rights Respondent may
have to exclude the union representatives is derived from the
license agreement, it is clear that Respondent can have no
greater right than is given to it by the city, as the licensee.
Thus, as a licensee, Respondent is “entitled to protection
against interference by third persons with the use privileged by
the license to the extent to which the license gives him posses-
sion as against such person.” Restatement of the law (First)
Property “Servitudes,” Section 521(2). Here, the evidence
demonstrates that the city, the licensor does not and did not
agree with Respondent’s view, that the license agreement per-
mits it to exclude leafleters from the sidewalk. This position is
made clear by the statement made by the city’s attorney, Dan
Connolly, in his September letter to Grubin, which was also
received by Respondent. He states therein that “an individual
participating in constitutionally protected activities on a side-
walk open to the public (regardless of where the preprietary
interest of such sidewalk lies) in a non-obstructive or harassing
manner, is not violating the law.”
Respondent dismisses this statement of Connolly as “purely
Connolly’s opinion,” in no way determinative of Respondent’s
interest in the sidewalk, noting particularly that the letter pays
no attention to the license agreement, and makes no reference
to any statute or case law. I disagree. The statement made by
the attorney representing the city, who is in fact, the licensor
and the party to the agreement is certainly substantial evidence
as to the city’s view of Respondent’s rights under the agree-
ment. While this statement may not be conclusive, it is cer-
tainly persuasive evidence, particularly where, as here, Re-
spondent has adduced no contradictory evidence or authority.
Indeed, Respondent notes that Connolly makes no reference to
any statute or case law. That may be true, but neither did Re-
spondent, and in the absence of any countervailing evidence or
authority, I conclude that Connolly’s statement represents the
position of the city, that Respondent is not authorized by the
license agreement or any other factor, to exclude the union
leafleters on the Columbus Avenue sidewalk. See Snyder’s of
Hanover, Inc., 334 NLRB 183, 184 (2001) (Board relies on
statement from district attorney that handbilling activity en-
gaged in by union on public right of way could not be prohib-
ited as long as it did not pose a danger to others, and did not
impede the flow of traffic).
Indeed, the position of the district attorney in Snyder’s, su-
pra, was essentially the same position taken by Connolly here.
Thus, unless the union representatives were engaged in obstruc-
tive or harassing conduct, the leafleting is constitutionally pro-
tected, and they cannot be found to have violated the law.
While Respondent also argues that Connolly make no reference
to the license agreement in his letter, in fact he implicitly did by
observing that the leafleting is protected, regardless of the pro-
prietary interest of the sidewalk. This comment is an obvious
reference to the license agreement, and the presumed
“propietary interest” in the sidewalk that the license agreement
grants to Respondent.
Further, the evidence is clear that Connolly’s position in that
letter was not new, and had indeed been communicated to Re-
spondent in the past. Thus, in the letter, Connolly reminded
Grubin that he had “repeatedly discussed” that position with her
before. Indeed, Grubin’s letter to Connolly, which produced
his response; relates that both Grubin and Finkelstein (Respon-
dent’s general counsel), complained to Connolly on May 11
about the failure of the New York Police Department to arrest
Diaz when he refused to leave the sidewalk.
Moreover, both Talamo and Mirabelli testified that they were
made aware that the New York Police Department, based on
legal advice from its counsel, was not willing to arrest leafleters
on the Columbus Avenue sidewalk, and or that the New York
Police Department felt that Respondent did not have the right to
remove leafleters from the sidewalk.
Accordingly, since the city, the licensor did not authorize
Respondent to remove the leafleters, and believed that the li-
cense agreement did not provide such authority, Respondent
had not shown that it has a sufficient property interest in the
Columbus Avenue sidewalk.
While Respondent argues, as noted that Connolly made no
reference to any statute or case law,11 in my view, Connolly’s
brief summary is right on point and consistent with both New
York and Supreme Court law.
In 1939, the Supreme Court in Hague v. CIO, 307 U.S. 496,
was confronted with an ordinance that prohibited the distribu-
tion of circulars, handbills, and placards; as well as requiring a
permit for such activity on public streets. The court held that
the regulations were unconstitutional and violative of freedom
of speech and assembly guarantees of the Fourteenth Amend-
ment. In a much quoted opinion, Justice Roberts discussed the
role of city streets:

Wherever the title of streets and parks may rest, they have
Immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of as-
sembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and
public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.
The privilege of a citizen of the United States to use the
streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordina-
tion to the general comfort and convenience, and in con-
sonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied. [307 U.S. at
515, 59 S.Ct at 963.]

The principles expressed in this opinion have been quoted
approvingly by numerous subsequent cases. Jamison v. State of
Texas, 318 U.S. 413, (1943) (“one who is rightfully on a street
which the state has left open to the public carries with him there
as elsewhere the constitutional right to express his views in an

11 As also noted above, Respondent provided no statute or case law
to the contrary.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
orderly fashion. This right extends to the communication of
ideas by handbills and literature as well as by the spoken
word.” Id. at 416.). Perry Educ-Assn. v. Perry Local Educa-
tors’ Assn., 460 U.S. 37 (1983) (“Streets and Parks have im-
memorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, commu-
nicating thoughts between citizens, and discussing public ques-
tions. In these quintessential public forims, the government
may not prohibit all communicative activity.” Id at 44); Amal-
gamated Food Employees v. Logan Plaza, 391 U.S. 308 (1968):
It is clear that if the shopping center premises were not pri-
vately owned but instead constituted the business area of a
manicipulity . . . petitioners could not be barred from exercis-
ing their First Amendment rights there on the sole ground that
title to the property was in the municipulity. The essence of
these opinions is that streets, sidewalks, parks and other places
are so historically associated with the exercise of First
Amendment rights that access to them for the purpose of ex-
ercising such rights cannot constitutionally be denied broadly
and absolutely.” Footnote omitted. Id. at 315
See also International Soc. for Krishna Consciousness v. Lee
(Iskcon), 505 U.S. 672 (1992); and Frisby v. Schultz, 487 U.S.
474 (1988).
This precedent makes clear that sidewalks and streets are
considered public forums. This does not mean that the State
may not regulate such fora, but it must show that such regula-
tion is necessary to serve a compelling state interest and that it
is narrowly drawn to achieve that end. The State may also
enforce regulations of the time, place, and manner of expres-
sion, which are content neutral; narrowly tailored to serve a
significant government interest, and leave open, ample channels
of communications. Perry, supra; Lebron v. National R.P.
Passenger Corp. (Amtrak), 69 F.3d 650, 655 (2d Cir. 1995).
Indeed, the above precedent was reviewed and evaluated by
both Judges McKenna and Duffy in their consideration of the
ban on demonstrations on the Plaza. However, the decisions in
these cases were based on their characterization of the Plaza as
a limited public forum, which under the case law is not subject
to such strict scrutiny, but must only be a “reasonable” regula-
tion and not an effort to suppress the speaker’s activity due to
disagreement with the speaker’s view. Lebron, supra at 2705.
Thus, while the Plaza was found by Judges Duffy and
McKenna to be a limited public forum, the same finding cannot
be made with respect to the Columbus Avenue sidewalk.
The Plaza was found to be a limited public forum, princi-
pally because Respondent has restricted its use to aristic per-
formances. The same cannot be said for the sidewalk, which
has been treated historically the same as any other sidewalk.
Indeed, the record reveals in fact that Respondent has consis-
tently directed demonstrators and leafleters from the Plaza to
the sidewalk to continue their activity.
Therefore, applying the above precedent to the instant facts,
it is clear that the city could not issue a blanket prohibition
against leafleting on the sidewalk without violating the First
Amendment. Since the city cannot do so, then neither can Re-
spondent, as it has no greater rights than the city would have to
regulate its sidewalks.
An analysis of New York law reveals a similar conclusion.
Thus, the New York Penal Law, Sec. 140.00(3), which defines
trespass, provides “a person who regardless of his intent, enters
or remains on premises which are at times open to the public
does with license and privilege unless he defies a lawful order
not to enter or remain, personally communicated to him by the
owner or such premises or other authorized person.” The New
York courts have held that where the property is open to the
public at the time of the accused trespass, the accused is pre-
sumed to have a license to be present, and “State Trespass laws
may not be enforced solely to exclude persons from exercising
First Amendment or other protected conduct in a manner con-
sisted with the use of the property. Therefore, a decision to
exclude that is predicated on or impermissibly inhibits a consti-
tutionally, or statutorily protected activity will not be lawful.”
People v. Leonard, 62 N.Y. 2d. 404, 408 (1984). Thus in that
case the court of appeals reversed a conviction for criminal
trespass on the SUNY campus based on an exclusion order
from the president. The court concluded that no “lawful order”
was issued, even though the president was authorized to gener-
ally exclude people from the campus. The opinion concludes
that in order to establish that the banishment order was lawful,
the state must show that the order had a legitimate purpose
rationally related to the use of the property, and that it did not
“unlawfully inhibit or circumscribe the defendant from engag-
ing in constitutionally or statutorily protected conduct.”
Similarly, in People v. Rewald, 65 Misc. 2d. 453, 457 (1971),
the court found that a private corporate owner of a migrant labor
camp that was open to the public could not asserts a trespass
action against a newspaper reporter who did not interfere with the
town’s activities; or cause danger or otherwise abuse his right to
remain. The court found as follows:

This court is compelled to conclude that mere title or pos-
sessory control of premises cannot be determinative of the
issues met here. In those cases revealing a public or quasi-
public use of premises a determination of the right to im-
pose the penal sanction against trespass must depend upon
the degree of public use which the owner permits or in-
vites upon his premises. Public or partial public use of
premises, whether under express or implied invitation or
permission, carries with it the license to enter and, absent
abuse of such privilege, carries with it the correlative li-
cense to lawfully remain. In cases such as this, the
owner’s or possessor’s revocation of the right to remain
(by denial, request or by order to leave), which will con-
vert the status of the alleged offender from licensee to that
of criminal trespasser, must rest upon, and arise from, ei-
ther reasonable customs and practices, rules, regulations,
and/or statutory law, or under circumstances from which a
reasonable owner and possessor would anticipate clear and
present danger to person, property or the public peace.
But in no event, under the circumstances we have here,
should revocation of the right to remain be predicated
upon mere whim, caprice, or arbitrary choice. To permit
arbitrary and capricious ejection from publicly used prem-
ises would violate not only the fair intendment of the
statutory privilege, but would clearly raise serious ques-
LINCOLN CENTER FOR THE PERFORMING ARTS 1115
tions of fundamental constitutional rights. Our courts have
consistently held that the right to exercise trespassory
sanction may not be invoked where the use of the premises
is public or partially public. Under the circumstances here
the court is drawn to the inescapable conclusion that the
People have failed to prove any meaningful claim to pro-
tection of a right of privacy on the part of the complainant
owner, nor has any significant claim been advanced for
protection of the normal business operation of the migrant
camp. In sum, this court finds that the defendant-appellant
did not enter or Remain on the [complainant’s] premises
“unlawfully.”

See also Watchtown Bible v. Frost Society v. Metropolitan
Life, 297 N.f. 339 (1948), where the New York court of appeals
while affirming the right of the apartment owner to exclude
Jehovah’s witnesses from soliciting inside its apartment build-
ing, distinguished Hague, supra, and other cases, thereby implic-
itly endorsing same, that distribution of literature on public
streets and sidewalks cannot constitutionally be prohibited.
Accordingly, the above precedent establishes that Connolly
was correct in his assertion that the New York Police Depart-
ment could not legally arrest the leafleters for their conduct of
leafleting on May 11 on the Columbus Avenue sidewalk. As
Connolly noted, the leafleters engaged in no obstructive or
harassing conduct. Moreover they were not in violation of any
reasonable time and place requirements set up by Respondent
or the city, which could in some circumstances meet constitu-
tional muster. What Respondent did here was to in effect insti-
tute and enforce a total ban on leafleting on the sidewalk,
would be violative of the First Amendment if done by the city.
Respondent cannot have greater rights to exclude leafleters than
can the city, since Respondent derives its rights to exclude from
the license agreement with the city.
As I have detailed above, Respondent has cited no authority
in support of its assertion that its license agreement with the
city provides it with a sufficient property interest in the Colum-
bia Avenue sidewalk, to warrant excluding the leafleters.
However, Nicks’, supra, does provide some surface support for
Respondent’s position, and does require some discussion. In
Nicks’, the Board found that an owner of stores, located in strip
malls, possessed a sufficient property interest in the sidewalks
in front of some of its stores, based on its lease agreements with
the property owner. These leases gave the owner the responsi-
bility for maintaining the store sidewalks. The Board, in re-
ceiving Virginia law on trespass, concluded the language in the
lease was sufficient to make the store owner “a custodian or
other pension lawfully in charge of the sidewalks,” and there-
fore possessed the requisite property interest to maintain a tres-
pass actions. Therefore, the Board found that the Employer did
not violate the Act by threatening union agents with arrest for
organizational activity on the sidewalks in front of their stores.
However, the Board’s decision, in this regard, was reversed
by the D. C. court of appeals (222 F.3d 1030), who disagreed
with the Board’s interpretation of Virginia law. The court
found that the lease did not provide sufficient evidence of “con-
trol” of the sidewalk under Virginia law to justify a trespass
violation. It therefore remanded the case to the Board for fur-
ther processing.
The Board, thereafter, accepted the court’s finding as the law
of the case, and found consistent with the court’s opinion, that
the employer therein did not have the requisite property interest
to threaten union organizers with arrest for protected conduct
on the sidewalk, and thereby violated Section 8(a)(1) of the
Act. Nicks’, 332 NLRB 1424 (2000).
Thus, while I as an administrative law judge am bound by
Board law, the history of this case as disclosed above, suggests
that it is of dubious authority in support of Respondent’s posi-
tion. Nonetheless, even assuming its viability as precedent, the
facts therein are clearly distinguishable from the instant matter,
in several significant areas.
First and foremost, that case does not involve a “public”
sidewalk or property owned by the city. It related solely to
private property, and whether or not the owner of the property
gave a sufficient property interest in the sidewalk to the store
owners by the terms of the lease between them. Thus, no first
amendment considerations were implicated.
Secondly, unlike our case, there is no evidence in Nicks’ that
the owner of the property disagreed with the store owners’
view, that the lease allows it to exclude the union representa-
tives. Here, as detailed above, the city, the party from whom
Respondent derives its alleged right to exclude the leafleters,
did not believe that the license agreement permitted Respon-
dent to remove leafleters from the sidewalk, absent obstructive
or harassing conduct.
Third, Nicks’ is based on the Board’s interpretation of Vir-
ginia law, and here as discussed above, New York law provides
no support for Respondent’s position that it could expel the
union representatives from the Columbus Avenue, or that they
could be successfully prosecuted for trespass for the failure to
comply with such an order of expulsion. Therefore, I find
Nicks’, supra not to be dispositive, and that the numerous cases
that I have cited above, support my conclusion that Respondent
did not have the requisite property interest to evict the leafleters
from the Columbus Avenue sidewalk.
Respondent also makes the alternative argument that as to
May 11, regardless of the terms of the license, it had the requi-
site property interest to exclude the leafleters, by virtue of the
court order issued by Judge Baer. Once more, I cannot agree
with Respondent’s assertion in this regard. Once again, I note
that regardless of the court order, Respondent’s interest in the
Columbus Avenue sidewalk, is derived solely from its relation-
ship with the city, the owner of the property. It is clear that the
city was aware of the court order, as it was a signatory to the
underlying settlement agreement, and indeed Grubin referred to
the Court Order in complaints to Connolly about the New York
Police Department’s failure to arrest the leafleters. Thus, the
city, by Connolly, with full awareness of the existence of the
court order, continued to maintain its position that an arrest is
not warranted, absent obstructive or harassing conduct by the
leafleters. Therefore, on that basis alone, the court order does
not provide a sufficient property interest to Respondent in the
sidewalk.
Further, an examination of the terms of the order reveals sub-
stantial ambiguity as to its scope. Thus, the record is clear that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116
the order was issued based on a proceeding relating to the con-
duct of a rally on the sidewalk. Thus, since the rally clearly
ended at 6:15 p.m., and the rally continued across the street at
Dante Park, it is not clear that the Agreement covers leafleting
which as note had been engaged in on the Columbus Avenue
sidewalk, with little or no interference prior thereto.
Moreover, while the order did provide that all union repre-
sentatives “acting in concert and participation with,” will leave
“Lincoln Center property by 6:15 p.m.,” it is significant that the
Columbus Avenue sidewalk is not Lincoln Center property.
Therefore, the leafleting after 6:15 p.m. was not on Lincoln
Center property and cannot be reasonably viewed as violating
the Order.
Finally, it is significant that Respondent subsequent to May
11, made no attempt to go back to Judge Baer, to assert that the
Union has violated his Order. Indeed, in my view, this was the
appropriate procedure to follow, if Respondent believed that the
Union’s leafleting was contrary to the Order. The failure of
Respondent to do so, I believe is an implicit admission by Re-
spondent that it knew that the leafleting after 6:15 p.m. was not
in violation of the Order.
Accordingly, I find that Respondent’s assertion that Judge
Baer’s court order provides a sufficient basis for it to have at-
tempted to evict the leafleters is without merit.
That brings me to an evaluation of Respondent’s conduct on
May 11 and June 28, where Respondent contends that General
Counsel has failed to adduce sufficient evidence of a violation,
even assuming that it did not have a sufficient property interest
in the Columbus Avenue sidewalk. In that regard, Respondent
vigorously disputes any finding based on the conduct of Evelyn
Finkelstein for various reasons.
Initially, it objects to any finding of a violation based on
such conduct, because the complaint did allege her to be an
agent or supervisor of Respondent, and further that no proof
was adduced establishing her agency status.
Respondent is correct that the complaint does not allege
Finkelstein as an agent of Respondents. When General Coun-
sel began asking questions of Diaz about Finkelstein’s conduct,
Respondent objected on the grounds that it had no notice of
Finkelstein being alleged to an agent of Respondent. At that
time, General Counsel asserted that there was policy of either
the Region or the Agency, that attorney’s are not named in the
complaint as agents of Respondents. I responded that I was
unaware of such a policy, and in any event, the policy did not
address the issue of notice to Respondent. I added that I felt
that General Counsel might want to consider amending the
complaint to allege Finkelstein as an agent. However, I permit-
ted the testimony concerning Finkelstein, principally because I
failed to see how Respondent was prejudiced by the failure to
name her as an agent in the complaint. In that regard, I note
that Ms. Finkelstein made an appearance on Respondent’s be-
half, was present throughout the entire trial, and assisted Re-
spondent’s counsel in the litigation of the case. Moreover, the
trial was held on July 11 and July 12, and then was adjourned
to July 25, so that the parties could evaluate a tape recording of
the events of May 11, made by an agent of the Union. Thus,
Respondent had ample time to prepare Finkelstein to testify to
the allegations against her. However, it chose not to call her as
a witness.
In these circumstances, I find that although in my view, it
might have been appropriate to name Finkelstein as an agent in
the complaint,12 that no prejudice was shown to Respondent,
from the failure to allege Finkelstein as an agent in the com-
plaint. Respondent was put on notice on the first day of trial
that General Counsel was contending that Respondent was
responsible for Finkelstein conduct, and was afforded more
than full opportunity to litigate her status and her conduct.
Moreover, it has provided no indication that its trial strategy
would have been any different, had it known about the allega-
tion as to Finkelstein’s status in the complaint.
Therefore, based on the above, Respondent was not deprived
of due process, and suffered no prejudice from the failure to
name Finkelstein in the complaint. Carpenters Local 608
(Various Employers), 304 NLRB 660, 662–663 (1991) (re-
spondent union not deprived of due process by failure to name
secretary in hiring hall as an agent in complaint, since union
given full opportunity to litigate status and conduct of secre-
tary).
Respondent also contends that the General Counsel adduced
no evidence of agency status of Finkelstein. However, in my
view, the General Counsel for a company is considered an
agent, as long as the conduct is within the scope of the attor-
ney’s authority. Electrical Workers Local 3 IBEW (Burroughs
Co.), 281 NLRB 1099, 1101 (1986) (strike threat by attorney in
telephone conversation to attorney for company); Central Cart-
age, Inc., 236 NLRB 1232, 1254 (1978); and Iowa Beef Proc-
essing, Inc., 226 NLRB 1372, 1374–1375 (1976), enfd. in per-
tinent part,567 F.2d 791, 796 (8th Cir. 1977). More to the point
is Wild Oats, supra, where the Board and the administrative law
judge relied in part on the presence of the employer’s attorney,
when the agent of the property owner requested that the police
remove union representatives from the parking lot in front of
the employer’s store. I also note, as related above, that Finkel-
stein, as the General Counsel made an appearance on the record
on behalf of Respondent, and assisted Respondent in the litiga-
tion of the instant case. Moreover, the evidence discloses that
Finkelstein, on behalf of Respondent, made phone calls to Con-
nolly complaining about the failure of the New York Police
Department to arrest union demonstrators.
Based on all the above circumstances, I conclude that the
evidence is more than sufficient to establish that Finkelstein
was acting as an agent for Respondent on May 11. I so find.
Turning to that conduct, Respondent argues that General
Counsel’s evidence, falls short of establishing that Finkelstein
engaged in any conduct violative of the Act. Thus, Respondent
argues that Finkelstein made no statements directly to Diaz or
any union officials, and that the record does not disclose to
whom she was speaking on the phone. Therefore, General
Counsel has failed to prove that she threatened to arrest anyone,
or that she caused the police to thereafter arrest Diaz.

12 Although General Counsel may have an internal policy of not
naming attorney’s as agents in complaints, this policy is not binding on
me, and does not address the issue of notice to Respondent and an
opportunity to defend itself properly.
LINCOLN CENTER FOR THE PERFORMING ARTS 1117
However, I agree with General Counsel that the circumstan-
tial evidence is sufficient for me to conclude, which I do, that
when Finkelstein requested on the phone that she wanted Diaz
arrested for leafleting, that she was speaking to someone from
the New York Police Department, or the city, and that as a
direct result of this call, 3 or 4 minutes later, two policeman
threatened Diaz with arrest for criminal trespassing and viola-
tion of a court order. In that regard, I rely on the timing of the
threat by the police, coupled with the fact that other evidence
(Grubin’s letter) discloses that Finkelstein called Connolly to
complain about the New York Police Department’s failure to
arrest Diaz. Additionally, I find it appropriate to draw an ad-
verse inference from the failure of Respondent to call Finkel-
stein as a witness, and find that if called she would have admit-
ted that she called the New York Police Department to have
Diaz arrested. IBPO, supra; United Parcel, supra; International
Automated, supra; Ready Mix, supra.
Accordingly, I conclude that Respondent, by Finkerlstein,
requested that the police arrest Diaz and that the police subse-
quently threatened to arrest Diaz and the union representatives.
By such conduct, Respondent has violated Section 8(a)(1) of
the Act. Wild Oats, supra (Board finds employer indirectly
responsible for conduct of police of threatening arrest of union
officials, based on employer’s questioning of property owner as
to its policy on distribution, and the presence of attorney, when
police made threat); Winco Foods, 337 NLRB 289, 293 (2001)
(employer telephoning police and expressing his desire that
handbillers be removed from property, responsible for subse-
quent threat to arrest by police). Indio Grocery, supra (em-
ployer violated Act by requesting and attempting to cause po-
lice officers to arrest union representatives).
Furthermore, also on May 11, I have found, based on Ta-
lamo’s own testimony, that he personally approached Diaz,
ordered him to leave the sidewalk, and threatened to consult the
police if he didn’t leave. Talamo then requested the police to
remove Diaz, but the officer declined to take any action.
Therefore, apart from any conduct of Finkelstein, Respondent
has violated Section 8(a)(1) of the Act on May 11, by Talamo’s
actions described above. USCF Standard Health Care, 335
NLRB 488 (2001); Food for Less, supra; Indio Grocery, supra,
and Bristol Farms, supra.
I have found that on June 28, Talamo approached Diaz and
three other union officials leafleting on the sidewalk. He in-
formed the union representatives that they could not leaflet,
because they were in violation of a court order. Talamo then
threatened that they would be arrested if they did not leave.
When the union representatives would not leave, Talamo
spoke to a police officer. Two or three minutes later, that same
police officer told Diaz and the other union representatives that
if they didn’t leave they will be arrested for criminal trespass-
ing and violations of a court order. Diaz asked who the com-
plainant would be, if they were arrested. The police officer
then went up the stairs, spoke to Talamo, and returned to Diaz.
He handed Diaz Talamo’s card, and said that Talamo would be
the complainant. The union representatives then left.
Based on these facts, I conclude that Respondent has further
violated the Act, by attempting to evict the union representa-
tives from the sidewalk, threatening them with arrest if they did
not leave, and causing the police to threaten to arrest and to
evict the union representatives from the Columbus Avenue
sidewalk. Indio Grocery, supra; Food for Less, supra; Bristol
Farms, supra; Winco Foods, supra.
General Counsel also contends that a separate violation is
appropriate, warranting a separate cease-and-desist order, based
on Talamo’s conduct in falsely asserting that Respondent had a
court order entitling it to seek the removal of the union repre-
sentatives. Although it is not totally clear what specific exam-
ples of this conduct General Counsel is referring to, it appears
to be Talamo’s assertion on June 28. Thus, on that date, there
was no court order in effect pertaining to the sidewalk, since
the only evidence in the record of court orders was a prior order
relating to the Plaza, and the May 11 order from Judge Baer.
However, without deciding whether or not the false assertion
of the existence of a court order, justifying removal of union
representatives from engaging in protected conduct, constitutes
an independent violation of the Act, I deem it inappropriate to
find a violation on this record. There was no allegation in the
complaint to this effect, and no assertion by General Counsel
during the course of the trial, that it believed that conduct was
violative of the Act. Therefore, the issue was not fully liti-
gated, and I shall not make a finding as to this assertion.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily promulgating a rule prohibiting the
distribution on the Columbus Avenue sidewalk of leaflets or
discriminatorily enforcing a prior rule more stringently, in order
to discourage protected conduct by representatives from Local
100, on February 26 and April 25, Respondent has violated
Section 8(a)(1) of the Act.
4. By discriminatorily excluding union representatives from
handbilling on the Columbus Avenue sidewalk, while allowing
nonunion individuals to engage in the same conduct, Respon-
dent has violated Section 8(a)(1) of the Act.
5. By requesting police officers to arrest representatives of
the Union, attempting to cause and causing the police officers
to remove and to threaten to arrest union representatives, and
by ordering union representatives to leave and threatening them
with arrest if they did not cease leafleting on the Columbus
Avenue sidewalk, on May 11 and June 28, Respondent has
violated Section 8(a)(1) of the Act.
6. The Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated Section 8(a)(1)
of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action that will effectuate the poli-
cies of the Act.
[Recommended Order omitted from publication.]

Mindy Landow, Esq., for the General Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
Peter D. Conrad, Esq. (Proskauer Rose LLP), of New York,
New York, and Evelyn Finkelstein, Esq., for the Respon-
dent.
Michael Anderson, Esq. (Davis Cowell & Bowe), of Boston,
Massachusetts, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. On April 1,
2002, I issued a decision and recommended Order in the origi-
nal case JD-(NY)-19–02, finding, inter alia, that Respondent
violated Section 8(a)(1) of the Act.
Thereafter, on May 15, 2002, Respondent filed a motion to
reopen the record in order to “adduce additional evidence dem-
onstrating that the principal witness testifying on behalf of the
General Counsel, whose testimony was relied upon by the ad-
ministrative law judge, appears to have committed perjury and
concealed relevant and material evidence from Respondent.”
On July 17, 2002, the Board granted Respondent’s motion to
reopen the record, and remanded this matter to me in order to
develop testimony on the issues raised in Respondent’s motion
and for the issuance of a supplemental decision.1
The reopened hearing was held before me in New York,
New York, on December 5, 2002. At the close of the hearing, I
granted Respondent’s request to hold the record open for the
receipt of an anticipated decision by Judge Loretta A. Preska on
a motion for sanctions made against Local 100 by the Metro-
politan Opera Association (the Met) in its civil action against
Local 100 and its officers. On January 28, 2003, Judge Preska
issued her decision, 2003 U.S. Dist. LEXIS 1077 (S.D., N.Y.
January 28, 2003) which is pursuant to my ruling made part of
this record.
Briefs have been file and have been carefully considered.
Based on the entire record, including my observation of the
demeanor the witnesses, I make the following:
FINDINGS OF FACT
I. PROCEDURAL RULINGS
In a conference call prior to the resumption of the instant
hearing, I made certain procedural rulings regarding the scope
of the hearing and what evidence I was prepared to hear.
The issues were also discussed on the record at the opening
of the hearing, and Respondent submitted an offer of proof,
detailing the evidence and testimony that it wished to submit. I
affirmed my previous ruling and rejected Respondent’s offer.
Respondent, in its brief, reviews its request to submit said evi-
dence before the supplemental decision is issued.
Respondent sought to call Attorney Sharon Grubin, general
counsel for the Met, as a witness concerning various issues,
particularly “the position taken by the City of New York re-
garding the proprietary rights of Lincoln Center . . . the back-

1 Member Liebman dissented from this decision, concluding that
“the testimony and evidence in dispute, if adduced and credited, would
not compel a different result as required by Section 102.48 (d)(1) of the
Board Rules and Regulations. Rather, the effect of the evidence would
be to merely discredit, contradict or impeach a witness, which is insuf-
ficient to warrant a reopening of the hearing.”
ground and reasons for the letter written by Lincoln Center and
the Metropolitan Opera Association to the Mayor of New York
City in April of 2000 concerning Lincoln Center’s policy of
enforcing its property rights on the Columbus Avenue side-
walk; and . . . the reasons the non-Union leafleters who were
present on that sidewalk on May 11, 2000 were not asked to
leave.”
This proposed testimony relates primarily to my findings that
I made in my decision, concerning the position of the city of
New York with respect to Respondent’s right to exclude leaf-
leters from the Columbus Avenue sidewalk and the motivation
for Respondent’s decision to institute a new policy and or de-
cide to enforce an old policy, which I found to be at least in part
motivated by the Union’s protected conduct. However, in my
view, as I expressed previously, these matters are not related to
or dependent upon the testimony of Diaz, and were therefore
not evidence that the Board contemplated being heard in the
instant remand.
The Board’s order remanded to develop testimony “on the
issues raised in Respondent’s Motion.” The motion made no
reference to the testimony of Grubin, or any of the issues raised
by her testimony, that Respondent now seeks to offer. To be
sure, Respondent in its reply to the position statement of Gen-
eral Counsel and Charging Party, did submit an affidavit from
Grubin, which in the last paragraph did make reference to these
matters. However, it appears that in that regard, Respondent
was merely seeking to argue that once Diaz’ testimony is dis-
credited, as it believes is appropriate, the entire case should be
dismissed. Respondent, obviously recognizing the deficiency
in this argument, since the findings with respect to the city’s
position, and the letter to the Mayor, were not impacted at all
by Diaz’ testimony, attempted to show that the findings I made
were wrong, based on “inadmissible hearsay,” or otherwise
unsupportable. This is clearly an attempt to give Respondent a
second chance to present evidence, that it could have and
should have presented at the initial hearing.
This evidence is not newly discovered or previously unavail-
able, unlike the evidence concerning Diaz’ alleged perjury,
which the Board’s order clearly contemplates being heard.
I note in this regard that when I received into evidence the
letter from Dan Connolly, the city’s attorney, to Grubin, Re-
spondent vociferously objected. I received it anyway, pointing
out to Respondent on the record that I viewed the statement
made by Connolly represented at least some evidence of the
city’s position concerning Respondent’s right to exclude leaf-
leters from the Columbus Avenue sidewalk, but that Respon-
dent was free to call Connolly, or any other witness to refute or
explain this statement in the letter. Indeed, Respondent’s attor-
ney, in objecting to the letters’ introduction, stated that it might
be necessary to call someone from the New York City Police
Department or the Corporation Counsel’s office. However,
although there was a postponement of the hearing from July
12–25, 2001, Respondent failed to call Grubin, Connolly or any
other witness to refute or explain Connolly’s statement in his
letter. That was the time when Respondent should have called
Grubin as a witness, and it cannot do so now in the remanded
hearing, which was remanded for the sole and limited purpose
LINCOLN CENTER FOR THE PERFORMING ARTS 1119
of assessing Diaz’ credibility, in view of the new evidence
found in his deposition testimony.
Similarly, I made findings with respect to Respondent’s con-
duct concerning the letter to the Mayor. These findings were
again not dependent on Diaz’ testimony, and Grubin’s pur-
ported testimony which could refute my findings with respect
to the letter, is not newly discovered or previously unavailable,
and also could and should have been adduced at the initial hear-
ing.
Also, Respondent sought to call Grubin to ask her about the
events of May 11, 2000, and particularly about her conversa-
tions with Lieutenant Albano of the New York City Police
Department about removing leafleters. However, this evidence
is once again not newly discovered, nor previously unavailable.
Nor is it directly related to Diaz’ credibility.
Respondent also sought to introduce evidence from Grubin
as well as Evelyn Finkelstein, general counsel for Respondent,
and Charles Sims, attorney for Respondent in the related civil
case before Judge Baer. In my decision, in response to Re-
spondent’s argument that Judge Baer’s order provided it with a
sufficient property interest to exclude the leafleters, I rejected
this contention for a number of reasons, including the fact that
Respondent had not made an attempt to go back to Judge Baer,
and seek a contempt finding against the Union.
Respondent seeks to adduce evidence that it did in fact try to
seek relief from judge Baer, but was not successful, because the
Judge believed that he was without jurisdiction, since the action
was dismissed. However, as with the other evidence proffered
by Respondent, this evidence has no relationship to Diaz’ tes-
timony, is not newly discovered or previously unavailable,
should or could have been introduced at the initial hearing, and
was not contemplated to be part of the remanded hearing by the
Board.
Finally, Respondent sought to introduce evidence of the Un-
ion’s alleged “discovery abuses” in the Met Opera action,
wherein Diaz’ alleged “perjury” was discovered. According to
Respondent, such evidence would show that the Union was
refusing to produce in that action, the very same documents,
i.e., Weekly reports of the Union’s employees including Diaz,
that Diaz lied about in the instant hearing. Therefore Respon-
dent contends that Diaz’ alleged perjury in the NLRB hearing is
part of a pattern of deceit engaged in by the Union in the Met
Opera action.
After listening to extensive argument on the subject during
the conference call and on the record at the reopened hearing,
which included assertions made by counsel for Met Opera, I
concluded that I would not permit testimony concerning the
“discovery abuses” of the Union. I stated then, and I reaffirm
that ruling now, that whatever relevance there might be to this
evidence to the issues before, is outweighed by the time it
would take to litigate difficult discovery issues.
Moreover, I did agree to Respondent’s request to hold the re-
cord opened to receive Judge Preska’s ruling on Met Opera’s
request for sanctions, which would presumably detail these
discovery abuses. In fact, Judge Preska did issue a 66-page
decision, which set forth in significant detail, the conduct of the
Union and its representatives during discovery. I have care-
fully reviewed that decision, and it will be discussed more fully
below. However, particularly since that decision is part of the
record herein, I reaffirm my ruling to bar Respondent from
adducing testimony concerning the “discovery abuses” of the
Union.
I also reaffirm my other rulings, detailed above, concerning
Respondent’s requests to adduce additional evidence, and shall
now proceed to consider the matters that I believe are contem-
plated by the Board’s remand order.
II. FACTS
Respondent’s motion is based on the assertion that Diaz
committed perjury during his testimony on July 11, 2001, in
two separate exchanges, during his cross-examination by Re-
spondent’s counsel.
Diaz testified concerning the events of May 11, 2000, and
more particularly that he overheard Evelyn Finkelstein on a cell
phone demanding that he be arrested.
Diaz was extensively questioned by Respondent’s counsel
with respect to his testimony about that incident. In the midst
of cross-examination about that testimony, which took three
pages in the transcript, the following questions were asked by
Respondent’s attorney, and the following responses by Diaz
were given, which Respondent contends constituted perjury by
Diaz.

Q. [By Mr. Conrad] Did you make any notes about
what you heard said at that time? At that time did you
make any notes of what you had overheard?
A. Well right after I heard that—
Q. Please answer the question.
A. I didn’t make no notes
Q. You didn’t make any notes?
A. No.
Q. Did you make any notes of what had happened
there while you were leafleting at the bottom of those
steps in front of Avery Fisher Hall at any time.
A. I could have written some notes
Q. I’m not asking you to guess. Did you or didn’t you
A. I can’t remember
Q. Do you keep a diary?
A. No.
Q. Do you keep a calendar of your appointments
A. A calendar of what’s going on, yes. But I don’t
save them
Q. Do you log what you do on a day-to-day basis?
Your activities on behalf of Local 100?
A. No.

After this exchange, Respondent resumed questioning of
Diaz regarding “the individual you overheard on the phone,”
for an additional four pages of testimony.
Diaz also furnished testimony that on July 1, 2000, he went
to Respondent’s premises on his day off, observed groups other
than the Union distributing leaflets on the Columbus Avenue
sidewalk, and that these groups were not asked to leave by
Respondent’s officials. Diaz also testified that he collected
leaflets from these individuals on that day, and dated them July
1, 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
During Diaz’ cross-examination about the events of July 1,
2000, the following exchange took place, which Respondent
also asserts reveals perjurious testimony by Diaz

Q. Did you make any notes about the events of July
1st?
A. July 1st? The leaflets. I wrote the notes on the leaf-
lets.
6:30—
Q. The times?
A. The times.
Q. Is that the full extent of the notes that you took?
A. Yes
JUDGE FISH: You have to say yes.
Q. Now you [sic] affidavit was given on June 30th, so
there is no mention, of course, in here about the events of
July 1st or July 6th. But did you make no record of those
events—well, I guess you did. You said you made the
notes on the leaflets.
Okay.
JUDGE FISH: You have to answer.
A. Yes,
Q. But you don’t have anything at all from July 6th, do
you?
On or about July 6th.
A. No.
Q. These leaflets that are in evidence now as General
Counsel’s Exhibit Number 7, do you remember giving
them to the NLRB?
A. Yes.
Q. And when? Did you give them to the NLRB at
around the time that you obtained them?
A. No.
Q. When did you give them to the NLRB?
A. Recently.
Q. And where have they been maintained since you
obtained them?
A. I had them in a folder.
Q. Were you involved in gathering any documents pur-
suant to a subpoena that I served on Local 100?
No.
Q. No? You received a subpoena, correct?
A. Correct.
Q. And then you turned it over to a lawyer for Local
100?
A. Correct.
Q. Did you have anything to do with it after that?
A. No.
Q. No one asked you for any documents that you had?
A. What was being requested, there is a person that’s
in charge of keeping the leaflets and stuff like that.
Keeper of records. Weren’t you saying before that you
kept a file of your own?
A. No. I kept a file for this day only. I kept that file.
Q. A file just for the one day?
A. That day?
Q. Why just for the one day?
A. That’s what I did?
Q. And no other file at all?
A. No. That’s it.
Q. Everything else during this whole period of time
you turned over to someone else?
Someone is in charge of keeping all the records; that if
there are any leaflets that person puts it on file has a file
with all the leaflets.
Q. Who is that file?
A. Mr. Gooderman.
Q. What is Mr. Gooderman’s job at the Local?
A. Researcher.

Respondent’s contention that Diaz lied during his testimony
on July 11, 2001, is based on the fact that during the Met Opera
litigation, it was disclosed that Diaz filled out “staff weekly
reports,” and “datebooks,” and that Diaz kept more than one
file, contrary to his trial testimony.
The “datebook,” which Respondent argues is a “calendar,”
was turned over to Met Opera in August 2001, pursuant to prior
document requests, and were used by Met Opera’s counsel in
examining Diaz in his deposition on November 15, 2001. Dur-
ing this deposition, Diaz disclosed that he also filled weekly
reports which “shows what we do on a daily basis.” At that
time Met Opera’s counsel demanded that weekly reports for
Diaz as well as other union officials be turned over to it, assert-
ing that these documents would have been called for by a num-
ber of prior document requests.
On January 10, 2002, the Union answered Met Opera’s inter-
rogatories concerning compliance with discovery obligations.
Diaz’ responses reflected that he had an entire drawer full of
Met Opera Restaurant and Lincoln Center documents, and that
he has a file folder for each shop in the two drawers of his file
cabinet.
Additionally, Diaz indicated that he “also maintained my
datebook,” and in answer to another question, stated that
“sometime after May 25, 2001, I was instructed to keep my
datebook and to hand over earlier datebooks for copying.”
Finally, Diaz also in response to another inquiry, stated, “Ms.
Yen asked me to update my datebook just before my deposi-
tion.”
Diaz furnished testimony during the remanded hearing on
December 5, 2002, concerning the various documents described
above, and why he did not disclose to Respondent the existence
of these documents, in answer to Respondent’s inquiries on
July 11, 2001.
Diaz is a salaried employee, who does not have set hours, but
generally works about 55 hours per week, including frequently
on weekends. He does not receive overtime or compensatory
time for weekend work.
Diaz maintained during his employment with the Union a
document which he refers to as a “datebook,” which is a small
booklet, entitled “week at a glance appointments . . . for plan-
ning, appointments and memoranda on a weekly basis.” The
book consists of a page for each week, with spaces for each day
to put in appointments or other material. The notations that
Diaz places in this datebook are, according to Diaz, short nota-
tions of his scheduled appointments. A review of these “date-
books” tends to corroborate Diaz’ testimony on this subject.
LINCOLN CENTER FOR THE PERFORMING ARTS 1121
The entry for May 11, 2000, states, “Met Opera action.” For
June 28, 2000, the entry is “tentative swing action.”
According to Diaz, he testified in July 2001 that he did not
keep a “diary,” or a “calendar of his appointments,” and that he
did not “log what you do on a daily basis,” primarily because
he believed that these questions related to documents which
reflect the conversation that he heard between Evelyn Finkel-
stein and someone else on May 11, 2000. Further, Diaz testi-
fied that he did not consider his “datebook” to be a calendar of
appointments, since the calendar he referred to in his testimony
was a calendar of union related matters that is posted at the
union hall. He also asserted that he did not consider his date-
book to be a “diary,” or a “log,” since in his view a diary or a
log are detailed statements of events after they occurred, which
information is not contained in his “datebooks.”
Diaz also prepares as noted, “weekly staff reports,” which
are required to be filled out by him for pay purposes, and is
then given to the Union’s secretary. According to Diaz, these
reports list his daily activities, and he prepares them by consult-
ing his datebook, and transferring the entries from the datebook
to the weekly reports.
Once again, Diaz testified that he did not mention these
weekly reports to Respondent’s counsel in July 2001, because
he believed that he was being asked about his testimony con-
cerning Evelyn Finkelstein, and the weekly reports contain no
information about that testimony. Furthermore Diaz also testi-
fied that he did not consider the weekly reports to be a “log” of
his activities, since it was not a detailed description of events,
which is what Diaz considers to be a “log.”
A review of the weekly reports prepared by Diaz does reflect
that they are similar to his datebooks and that they generally
contain brief description of his activities such as “team meet-
ing,” “organizing meeting” names of shops visited, or states
“office.” For May 11, 2000, his weekly report states “Met
Opera Rally,” which is identical to his datebook entry for that
date. For Wednesday, June 28, 2000, his weekly report stated,
“Staff Meeting Office.” In contrast his datebook reads, “Leads
Meeting,” and “tentative swing action 7–9 p. m.”
Furthermore, while Diaz testified that he generally prepares
his weekly reports by transferring entries from his datebook to
his weekly reports, an examination of these documents reveals
that at least in some instances there are entries in Diaz’ weekly
reports for which there is no corresponding entry in his date-
book over a 3 year period from 1999–2001.2
Diaz was asked about one instance, where his datebook con-
tained an entry for Angelo and Maxis on Saturday March 27,
1999, but his weekly report did not contain any entries for that
day. Diaz could not recall what happened in 1999 with respect
to these entries, but speculated that since he also had entries for
Wednesday, March 24, 1999, for that restaurant on both his
datebooks and weekly reports, that he might not have gone as
scheduled to that restaurant on March 27, 1999.
Moreover, for Saturday, July 1, 2000, neither Diaz’ datebook
nor his weekly report contained any notation that Diaz was at
Lincoln Center on that date. In fact both documents contain no

2 The record reveals some 46 instances, where entries in the date-
book do not appear in Diaz’ weekly report.
notations at all for that date. As noted, I found in my prior
decision that Diaz had gone to Lincoln Center on July 1, 2000,
on his day off, and that he observed various groups leafleting
on the Columbus Avenue sidewalks, while no attempt was
made by representatives of Respondent to evict them.
Diaz attempted to explain the omission of an entry for that
date in his datebook or weekly report, by asserting that Satur-
day was his day off, and he made the trip on his own time, so
he did not include it on his weekly report. Further, since he had
not made an appointment to go there, he did not record the visit
in his datebook. He added that the visit did not appear on his
weekly report, because it wasn’t in his datebook, and the entries
in his weekly report were transferred from his datebook.
Diaz also furnished testimony at the reopened hearing, con-
cerning his July testimony about files. Diaz maintains a Met
Opera draw, which consists of organizing information about the
Union’s organizing efforts among Restaurant Associates em-
ployees, employed at Met Opera. This file includes organizing
sheets, names and addresses of workers and antiunion literature
distributed by the Company.
Diaz testified that he did not mention these files when he tes-
tified on July 11 that he kept only one file, because he was
asked by Respondent about the July 1, 2000 incident, and the
folder of leaflets that he collected on that day.
Respondent observes that its questions were not so limited,
and referred specifically to the documents subpoenaed by Re-
spondent from the Union in the initial hearing. The subpoena
called for the production of the following documents from the
Union.

RIDER TO SUBPOENA DUCES TECUM NO. 349341

1. Copies of all memoranda, letters, notes, affidavits,
statements, photographs, videotapes, audiotapes, jour-
nal/log entries orother writings or recordings of any kind
that discuss, record, document, refer to or relate to any al-
leged threats made on May 11 and June 28, 2000 by
agents of Lincoln Center for the Performing Arts, Inc.
(“Lincoln Center”) and/or the New York City Police De-
partment, to arrest H.E.R.E., Local 100 (“Local 100”) rep-
resentatives because they attempted to hand out leaflets on
the lower sidewalk on the west side of Columbus Avenue,
in front of and below the main Lincoln Center Plaza (here-
inafter referred to as the “Lower Sidewalk.”)
2. Copies of all leaflets, handbills, flyers, brochures,
petitions or other written materials that Local 100 repre-
sentatives allegedly attempted to hand out on the lower
Sidewalk on May 11 and June 28, 2000.
3. Copies of all applications, in any form, made by Lo-
cal 100 to Lincoln Center or to the City of New York
and/or Department of Parks and Recreation, for permis-
sion to conduct leafleting, picketing, a demonstration, a
vigil, or any other similar form of concerted activity on the
Lower Sidewalk on May 11 or June 28, 2000.
4. Copies of all memoranda, letters, notes, affidavits,
statements, photographs, videotapes, audiotapes, jour-
nal/log entries, or other writings or recordings of any kind
that discuss, describe, record, document, refer to or relate
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
to any leafleting or picketing, and demonstration or vigil,
or any other similar form of concerted activity by any per-
sons, associations, groups or organizations, including but
not limited to labor organizations, at any time prior to or
after April 25, 2000, if such activities are to be relied on as
the basis for any claim by Local 100 in unfair labor prac-
tice case No. 2-CA-32983 that Lincoln Center has dis-
criminated in the enforcement of its alleged rights in the
Lower Sidewalk.

As related above, I have received into evidence, Judge Pre-
ska’s opinion, dated January 28, 2003, in which she granted
motions made by Met Opera for sanctions against the Union
and its counsel, and rendered judgment as to liability against
defendants and attorneys fees because of discovery abuse by
defendants and their counsel.
Judge Preska’s decision, which was made without the benefit
of a hearing, was primarily focused on discovery abuses by
Respondent’s counsel, with emphasis on its failure to properly
supervise the compilation of documents requested, and the
failure to devise an adequate system for the compilation and
retention of documents requested by Met Opera.
Judge Preska also made several findings concerning the
weekly reports, filled out by union officials, including Diaz,
which as noted above is one of the documents that Respondent
claims that Diaz lied about in his July 2001 testimony.
Judge Preska found that William Granfield, the current
president of the Union, lied in his deposition about whether
union members working on a campaign against the Met filled
out reports of their activities, referring to the same staff weekly
reports in issue herein. The judge also made several findings,
which Respondent alleges are pertinent the issues before me.
They include:

• That “[s]everal of plaintiff’s document requests
called for the production of the [weekly] reports kept
by Diaz and other Local 100 representatives, but they
were “never produced or otherwise made known in
document production or deposition testimony.” Id. at
51.
• That “[i]n attempting to explain his apparently preju-
rious testimony denying that he had provided written
reports to the International with respect to his activi-
ties,” Granfield stated he “does not consider his
weekly time records to be ‘written reports to the In-
ternational with respect to [his] activities;’’’ rather,
“the reports instead account for his time using general
phrases or words to explain where he has been during
each day of a pay period.” Id. at 56.
• That “when [Union counsel Marianne] Yen finally
agreed to produce the Weekly Reports, she decided
(she did not inform Met counsel) that she would pro-
duce them only for those people for whom the Met
had requested day planners and calendars.” Id. at
111.
• That “[I]t was only after the court ordered [Yen} to
do so that she obtained . . . [weekly] reports [submit-
ted to the International’s office].” Id., at 142.
• That “[t]he Met [did not] receive [ ] Tamarind’s and
Grandfield’s Weekly Reports [until] December 28,
[2002,] three days before the close of discovery,” and
that “[t]here was significant gaps even in that produc-
tion.” Id. at 113, M.23.
• That “as set out in excruciating detail [in the Met’s
declarations and other supporting papers] scores of
clearly responsive documents (some of which, like
Weekly Reports, were expressly ordered to be pro-
duced) have never been produced.” Id. at 151.
• That “[t]he Weekly Reports were called for in the
Met’s first document request . . . and were of obvious
relevance in documenting activities that are the sub-
ject of this action,” that “Granfield falsely denied
their existence,” and that “all such reports have to
date not been produced.” Id. at 159.
• That “the Union’s failure to produce Weekly Reports
proceeded initially from Granfield’s false testimony
that he prepared no log of his activities on behalf of
the Union” Id. at 162.
• And, that “many documents have been destroyed that
related directly to events taking place during the most
critical time period in this action, . . . when the Union
planned its campaign against the Met.” Id. at 171–
72.

None of Judge Preska’s findings in sanctioning the Union
and its counsel appeared to be based on any conduct of
Diaz. However, Judge Preska did make reference to Diaz’
testimony in the instant NLRB proceeding, where Diaz
had denied that he “logged what (he did) on a day to day
basis . . . (his) activities on behalf of Local 100.”3 Judge
Preska quoted this testimony in a footnote, after relating
what she described as “falsehoods uttered by individual
defendants and by Union counsel,” and characterized
Diaz’ NLRB testimony as “similarly” to the conduct of
these other Union representatives.

However, Judge Preska quoted from Diaz’ deposition taken
on November 15, 2001, wherein Diaz disclosed to Met Opera’s
counsel that he and other union representatives filled out
weekly reports of their activities. At that time, Met Opera’s
counsel stated that these documents should have been provided
to Met Opera, pursuant to prior document requests and re-
quested their immediate production.
There is no reference to Diaz’ datebook in Judge Preska’s
decision, but the record discloses that the Union did provide
copies of Diaz’ datebook to Met Opera’s counsel, in August
2001, pursuant to a document request. Further, in response to
Met Opera’s written interrogatory, dated January 10, 2002,
Diaz responded that “sometime after May 25, 2001, I was in-
structed to keep my datebook and to hand over earlier date-
books for copying.” In response to another question, Diaz re-
sponded, “Ms. Yen asked me to update by datebook just before
my deposition.”

3 Judge Preska had been provided with Diaz’ testimony by Met Op-
era’s counsel.
LINCOLN CENTER FOR THE PERFORMING ARTS 1123
IV. ANALYSIS
Respondent contends that the evidence demonstrates beyond
question that Diaz lied and committed perjury during his testi-
mony on July 11, 2002, by denying to Respondent the existence
of his datebook, which Respondent asserts is clearly a calendar,
and of his staff weekly reports, which Respondent asserts is a
diary or a log of his activities, and of his Met Opera draw,
which demonstrates, according to Respondent, that Diaz had
more than one file, contrary to his prior testimony.
Respondent argues further that once it is concluded that Diaz
did in fact commit perjury as it asserts the entire complaint
should be dismissed on policy grounds, and or because once
Diaz’ testimony is stricken as it should, then there is no longer
any evidence in the record to support the finding of a violation.
I disagree with all of Respondent’s assertions. I conclude,
that Respondent has not established that Diaz committed per-
jury during his testimony on July 11, 2001, and that nothing
disclosed at the reopened hearing warrants either the striking of
Diaz’ testimony, or any changes in the credibility resolutions
that I made in my prior decision.
Furthermore, I conclude that even if I were to find that Diaz
had committed perjury or lied during his prior testimony, none
of the conclusions set forth in my prior decision would be af-
fected, since the record contains ample evidence, including
admissions by Respondent’s witnesses to support the violations
that I have found.
The only possible effect a finding of perjury by Diaz might
have, could be concerning my factual findings as to the events
of July 1, 2000. However, even if I were to discredit Diaz’
testimony about that day, my findings of disparate treatment
and discriminatory enforcement of Respondent’s policy of ex-
cluding leafleting on the Columbus Avenue Sidewalk would
not change.
With respect to the allegation made by Respondent that Diaz
committed perjury on July 11, 2000, I note that title 18 U.S.C.
section 621 defines perjury as testimony given “willfully and
contrary to such oath,” and on “any material matter which he
does not believe to be true.”
In my judgment, Respondent has not shown that Diaz had
violated the statute in his July testimony. Thus it is not enough
to establish that Diaz’ testimony was inaccurate or even false.
It must be proven that Diaz provided testimony that “he does
not believe to be true,” and that it was “willfully” contrary to
his oath. In order to assess these questions it is essential to
examine the context of the allegedly false responses. Electrical
Workers Local 11 (AMCO Electrical), 273 NLRB 183, 195
(1984); Hunkin-Conley Construction Co., 100 NLRB 955, 960
(1952).
Here, although Diaz denied that he had a calendar, diary or
log of his activities, all of these questions were asked in the
context of extensive questioning of Diaz about the events of
May 11, 2000, and his testimony concerning his overhearing
Finkelstein’s conversation. Thus, all of the questions before
and after the alleged perjurious testimony dealt with that sub-
ject. Therefore, I find it plausible, and credible as testified to
by Diaz at the reopened hearing, that Diaz believed that the
questions about calendars, logs, and diaries related to the issue
of the overheard conversation between Finkelstein and some-
one else. Since none of the documents that Diaz failed to men-
tion, i.e., his datebook and his weekly reports, made any men-
tion of this conversation, I conclude that it cannot be found that
he “did not believe his testimony to be true,” or that he “will-
fully” violated his oath to testify truthfully.
I have considered the fact, as Respondent argues, that Diaz’
affidavit, prepared by the Union’s attorney, in response to the
motion to reopen, contains no reference to Diaz’ belief that the
questions related to his testimony about the Finkelstein conver-
sation. However, I agree with General Counsel that no incon-
sistency has been established, but at most demonstrates that the
affidavit was incomplete. Indeed, the union attorney may not
asked Diaz about the issue of the context of the questioning or
did not realize the significance of same and did not include it in
the affidavit. Moreover, the contest of the questions is some-
thing that can and should be examined, whether or not it ap-
peared in Diaz’ affidavit.
Similarly, the testimony given by Diaz concerning his files
must also be examined in context. In that regard, once more I
credit the testimony of Diaz that he believed that he was being
asked about files concerning his testimony about July 1, 2000,
since that was the subject of his cross-examination at the time.
Therefore, since he kept only one file concerning July 1, 2000,
and the leaflets that he collected on that day, he did not believe
that he was being asked about his organizing files in general, or
those files in the “Met Opera draw.” To the extent that Re-
spondent argues that its question related generally to documents
that Respondent subpoenaed for the initial trial, its subpoena
specifically referred only to documents the General Counsel
intended to rely on to prove that Respondent discriminated in
the enforcement of the Union’s rights on the Columbus Avenue
sidewalk. Thus, Diaz’ “Met Opera” files would not be covered
by that subpoena.
Additionally, I also find credible Diaz’ testimony that even
apart from the context of the questions he did not believe that
he was being asked about his datebook or his weekly reports.
He testified that he did not view his datebook as a calendar and
that when asked about a calendar he responded truthfully that
the only calendar of “what was going on,” was the calendar
posted in the union hall. I find this testimony plausible, and
indeed supported by Diaz’ responses to interrogatories of Met
Opera, where he twice referred to his datebook as a datebook,
and not as a calendar.
With respect to the weekly reports, Diaz again credibly testi-
fied that in his view a diary or a log of activities involves a
detailed account of events, rather than the cursory entries that
appear on the weekly reports or indeed his datebook.
Therefore, while it is certainly reasonable to characterize
these documents as calendars, logs, or diaries, as Respondent
contends, it is also plausible to construe them as Diaz testified.
I conclude that such issues of semantics do not warrant a find-
ing of perjury.
Respondent’s reliance on Judge Preska’s decision to support
its contention that Diaz committed perjury is misplaced. Judge
Preska’s decision to find sanctions against the Union and its
attorneys was not based on any conduct of Diaz. The only
negative reference to Diaz came in footnote where Judge Pre-
ska simply noted, based apparently on Met Opera’s submission
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
of selected excerpts of the transcript, that Diaz had denied that
he logged what he did on a daily basis, and analyzed it to the
conduct of other union officials. However, Judge Preska did
not conduct a hearing prior to rendering her decision, and did
not have the benefit of Diaz’ explanatory testimony, which I
have credited. Therefore, I cannot give any weight whatsoever
to her footnote concerning Diaz’ testimony at the NLRB, even
if it can be construed as an attack on Diaz’ credibility.
Judge Preska did make numerous findings adverse to the Un-
ion and its officials, including findings that Granfield, the Un-
ion’s president, falsely testified about the existence of staff
weekly reports, and that the Union failed to produce these re-
ports to Met Opera in a timely fashion. However, I do not
agree with Respondent that these findings have any bearing on
Diaz’ credibility in this proceeding. Respondent argues in ef-
fect that Diaz’ failure to disclose the existence of his datebook,
weekly reports, and Met Opera draw was part and parcel of the
Union’s conduct in avoiding its discovery obligations in the
Met Opera action. Such a contention is belied by the record.
Diaz’ datebooks were disclosed to and furnished to Met Op-
era pursuant to a document request in August 2001. More im-
portantly, the weekly reports, that other union officials had
apparently lied about, were disclosed by Diaz in his deposition
in November 2001. Therefore, if Diaz was part of a union wide
conspiracy to prevent these weekly reports from being dis-
closed, then he would not have mentioned their existence in his
deposition.
Indeed, whatever the importance of these weekly reports
may have been to the Met Opera Action, I conclude that neither
it nor the datebook had any significant relevance to the issues
before me. These documents contain only brief descriptions of
Diaz’ appointments or activities, and contain no significant
material, that would warrant the conclusion that Diaz, would lie
about these matters. In my view these documents were not
“material” under the U.S. Code’s definition of perjury.
I recognize in this regard, as Respondent argues that neither
the datebook, nor his weekly report, listed that Diaz was at
Lincoln Center on July 1, 2000, and that Diaz had furnished
extensive testimony to that affect in his earlier testimony.
However, I find it highly improbable, that Diaz would have the
sophistication to decide to lie about these two documents, in
order to “cover up” his further alleged lie about the events of
July 1, 2000. Indeed the record discloses that Diaz turned over
to his attorney, based on Met Opera’s document request, his
datebooks shortly after May 2001, before his testimony before
me. Moreover, the datebook was turned over to Met Opera, in
early August, less than a month after his initial testimony in this
proceeding. Therefore, Diaz knew that his datebook would be
disclosed to Met Opera, and presumably that it made no men-
tion of his July 1 appearance at Lincoln Center.
Thus, Respondent’s argument that Diaz simply made up his
testimony that he went to Lincoln Center on July 1, 2000, and
that he lied about the existence of these documents, which
would contradict this testimony, is not convincing. Again, his
testimony about these documents was given in the context of
extensive cross-examination about the events of May 11, 200l,
and I find it highly unlikely that Diaz was even thinking about
his prior testimony concerning July 1, 2000, when he gave his
responses to Respondent’s questions.
Accordingly, I conclude based on the foregoing, that Re-
spondent had not shown that Diaz committed perjury in his
testimony of July 11, 2001, and that his testimony should not be
stricken as Respondent contends.
That still leaves another issue for resolution, that even apart
from whether Diaz committed perjury, whether my findings
with respect to July 1, 2000, should stand, in view of the fact
that neither his datebook nor his weekly reports reflect his ap-
pearance at Lincoln Center on that date. This is a close ques-
tion, but on balance, I conclude that no changes should be made
in my prior findings.
Diaz did attempt to explain the failure of either of these
documents to include a reference to Lincoln Center on July 1,
2000. He asserts that since he had no appointment to go to
Lincoln Center, it was not included in his datebook. Moreover,
he claims that he did not include the visit in his weekly report,
because he generally prepares his weekly reports from his date-
books. However, this explanation is not convincing, since the
record reflects substantial discrepancies between the datebook
and the weekly reports. While these facts tend to weaken his
testimony on this issue, it does not necessarily lead to the con-
clusion, as Respondent asserts, that Diaz made up the entire
incident.
The fact is that the record does contain some corroborating
evidence, particularly the leaflets that were placed in evidence,
with the date July 1, 2000, written thereon. Moreover, and
more importantly, Respondent adduced no contrary evidence to
refute Diaz’ testimony at either the original hearing or the re-
opened hearing. It did not call Fletcher, its agent to offer con-
tradictory testimony to Diaz. I drew an adverse inference from
the failure of Respondent to do so at the original hearing, and I
do so again, with respect to its failure to produce Fletcher at the
reopened hearing. Respondent knew full well that the events of
July 1, 2000, were in issue at the reopened hearing. Indeed the
motion and the response make clear that the documents in ques-
tion related only to Diaz’ testimony about his appearance at
Lincoln Center on July 1, 2000. Yet Respondent, although as
noted made offers of proof, in an attempt to expand the scope
of the reopened hearing, which I rejected, made no attempt to
call Fletcher as witness. Nor did it provide any explanation or
excuse for its failure to call him. In these circumstances, I con-
clude that an adverse inference is appropriate, and I find that if
called as a witness, Fletcher would have corroborated Diaz’
testimony.4
Therefore, based on the above, I find no basis to change any
of my prior findings concerning Diaz’ testimony as to July 1,
2000, or otherwise.
Furthermore, even if I were to agree with Respondent’s as-
sertion that Diaz committed perjury during his testimony, this
finding would not result in any changes in any of the conclu-
sions made in my prior decision. In that regard, the primary
issue litigated by the parties was the question of whether Re-

4 I also note that Respondent failed to call police officer Kennedy
who could also have refuted Diaz’ testimony, but did not do so at either
hearing.
LINCOLN CENTER FOR THE PERFORMING ARTS 1125
spondent had a sufficient property interest in the Columbus
Avenue sidewalk, to exclude leafleters. The issues relating to
this question are not dependent on Diaz’ testimony.
Respondent argues in this respect, that absent Diaz’ testi-
mony, which it believes should be stricken, there is no basis in
the record for the finding of a violation. I disagree.
I credited Diaz’ testimony (which was not denied by Finkel-
stein), that he heard Finkelstein tell someone on the phone to
arrest the leafleters, and found that in fact Finkelstein was
speaking to the police. Even apart from the adverse inference
that I drew from Finkelstein’s failure to testify, the record con-
tains important corroborating evidence of this finding, namely
the letter from Grubin, which establishes that on May 11 both
Grubin and Finkelstein summoned the police to arrest and re-
move the leafleters from the Columbus Avenue sidewalk.
Moreover, Talamo testified that on May 11 he approached
Diaz, ordered him to leave the sidewalk, and threatened to con-
sult the police if he didn’t leave. Talamo then requested the
police to remove Diaz, but the officer declined to take any ac-
tion. This conduct of Talamo, as I observed in my decision is
violative of the Act, and is not dependent on Diaz’ testimony.5
As for June 28, 2000, I did credit Diaz’ testimony that on
that date Talamo approached him while he and other union
officials were leafleting, and told them that they could not leaf-
let, because they would be in violation of a court order. Ta-
lamo added that they would be arrested if they did not leave. I
further found, as Diaz testified that Talamo then spoke to a
police officer, who in turn approached Diaz and told him to
leave and threatened arrest for violation of a court order. Fi-
nally, I found that the police officer after discussion with Diaz,
handed Diaz Talamo’s card, and stated Talamo would be the
complainant. Talamo did dispute this testimony of Diaz, and
further testified that he did not recall any conversation with
Diaz on June 28, 2000. However, even if I were to credit Ta-
lamo and discredit or strike Diaz’ version of events on June 28,
2000, my ultimate conclusions would not be affected. Thus
Talamo testified that on at least a half a dozen occasions, at or
around June 28, 2000, he would tell Diaz that Respondent ob-
jects to Diaz leafleting on the Columbia Avenue sidewalk, and
would like him to move. Diaz would refuse to move, and Ta-
lamo replied that he would consult the police about the matter.
Further, Talamo then requested the police to take action to re-
move Diaz, and the police officer stated that he was not pre-
pared to take any action. Thus these admissions by Talamo are
more than sufficient to establish that Respondent attempted to
exclude leafleters from the Columbus Avenue sidewalk, threat-
ened to and in fact did try to have the police arrest or remove
the leafleters. These actions by Respondent, which are made
independent of any testimony from Diaz, are violative of the
Act, unless Respondent had a sufficient property interest in the

5 The fact that Talamo, as Respondent asserts, made reference to the
agreement reached between the parties, when ordering Diaz to leave is
not significant. As I detailed in my prior decision, for a number of
reasons, I concluded that the “settlement” agreement incorporated in
Judge Baer’s order did not provide Respondent with a sufficient prop-
erty interest to exclude the leafleters from the Columbus Avenue side-
walk.
Columbus Avenue sidewalk to exclude peaceful leafleting,
which I have found Respondent did not possess.
With respect to that ultimate issue, my findings concerning
Respondent’s property interest in the sidewalk was also not
dependent at all on any of Diaz’ testimony, and therefore would
not change, even if Diaz’ testimony was entirely discredited.
The only factual finding that I made that could be affected by
the discrediting of Diaz’ testimony, was my findings as to the
events of July 1, 2000. It is thus conceivable, that had I found
that Diaz perjured himself on July 11, 2001, that I would strike
his testimony as to the events of July 1, 2000. However, such a
finding would not in my judgment change my overall conclu-
sions that Respondent disparately enforced its ban on leafleting
on the Columbus Avenue sidewalk. I conclude that even absent
consideration of the events of July 1, 2000, the evidence is
sufficient to make this finding.
Thus, I have found that Respondent instituted a new policy,
or alternatively enforced a policy previously ignored, to pro-
hibit leafleting on the Columbus Avenue sidewalk, because
Local 100 had increased its leafleting, and became “pushy” or
more “aggressive.” Since being “pushy” or “aggressive,” does
not without more, transform protected conduct of leafleting into
unprotected activity, Respondent’s decision to change its policy
is unlawful. This conclusion is also relevant to the disparate
treatment finding that I made in my prior decision, which is
also supported by the events of May 11, 2000, where Respon-
dent made no effect to evict other groups of leafleting, while
attempting to remove only representatives of the Union. Fur-
ther, I also relied on the comments made by Talamo to Travis
on June 28, 2000, which I found evidenced discriminatory
treatment of the Union, and these findings are also independent
of any testimony from Diaz.
Accordingly, based on the foregoing, I would find, even
without relying on any testimony of Diaz, that Respondent
violated Section 8(a)(1) of the Act, as set forth in my prior de-
cision.
Lastly, I now turn to an evaluation of the Court of Appeals
decision in Hotel Employees Local 100 v. City of New York,
311 F.3d 534 (2d Cir. 2002). That decision, which was issued
on November 18, 2002, upheld the prior ruling of Judge Duffy
that Lincoln Center had the right to prohibit rallies, demonstra-
tions, and leafleting on the Plaza. The court concluded that the
Plaza is not a “traditional public forum,” and therefore that
Respondent’s policy is “constitutionally permissible because it
is both viewpoint neutral and reasonable.” 311 F.3d at 539.
However, throughout its opinion, the court made repeated
references to decisions some of which I cited in my decision,
finding that sidewalks are traditional public fora. 311 F.3d at
544–545, 547, 549–550. U.S. v. Grace, 461 U.S. 171, 179–180
(1983); Venetian Casino Resort v. Local Joint Exec. Bd., 257
F.3d 937, 945 (9th Cir. 2001);6 Hague v. CIO, 307 U.S. 496,
515–516 (1939); Frisby v. Schultz, 487 U.S. 474, 479 (1988);
Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37,
45 (1983).
6 In this case the Ninth Circuit held that a privately owned sidewalk
was a public fora because it functioned as a public thoroughfare.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
The court, after rejecting the Union’s contention that the
Plaza was a public forum, then decided the case on the basis
that it was either nonpublic or limited public forum. In such
circumstances, it examined closely the reasonableness of the
restrictions imposed by Respondent. In that connection, it was
particularly concerned with the prohibition of leafleting in the
Plaza, recognizing the heightened constitutional scrutiny placed
on restrictions of leafleting. International Society for Krishna
Consciousness v. Lee, 505 U.S. 672 (1992); Paulsen v. County
of Nassau, 925 F.2d 65, 66 (2d Cir 1991); Wolin v Port of N.Y.
Auth., 392 F.2d 83, 89 (2d Cir. 1968); Chicago Acorn v. Metro
Pier & Expo., 150 F.3d 695, 703 (7th Cir. 1998).
The Court then distinguished these cases from the prohibi-
tion of leafleting on the Plaza, and found it to be reasonable in
light of the Plaza’s particular and limited function and purpose.
The opinion then made the following observation.

This is especially so where neighboring Damrosch and
Dante Park and the public sidewalks surrounding Lincoln
Center, provide ample alternative venues for groups such
as the Union who wish to voice their views to Lincoln
Center’s patron’s. See Cornelius 473 U.S. at 809 (finding
a regulation reasonable where speakers have access to al-
ternative channels through which they can reach their in-
tended audience.) Accordingly, we conclude that Lincoln
Center Inc’s policy prohibiting leafleting, also passes con-
stitutional muster. [31 F.3d at 556.]

The parties have presented extensive arguments as to the
significance of this decision in general, and the latter quotation
in particular. Relevant to an assessment of these issues is a
portion of the transcript of the oral argument before the circuit,
consisting of an exchange between Judge Straub (who inciden-
tally authored the opinion), and Charles Sims, attorney for Lin-
coln Center in that case. The transcript reads as follows:

MR. STRAUB: Wouldn’t it be one thing to prohibit a
rally as opposed to having a couple of leafleters walking
about?
MR. SIMS: The judgment has been made. I mean,
they have a security force. There is also an impact on Lin-
coln Center’s own proprietary interests. They rely on a
board and on the generosity of donors. They have tried to,
and I think succeeded quite admirably, in creating an at-
mosphere where people feel relaxed.
MR. STRAUB: Who would rather not take a leaflet
and tuck it away in their tuxedo.
MR. SIMS: They can take a leaflet on the sidewalk—
under a recent ruling, they can take leaflets on their way,
you know, down there. But the plaza itself, as the Court
found, is a place apart, designed for the gathering of audi-
ence and, frankly, is a nice way to get your head together
when you are going in.

The parties have stipulated in connection with this exchange,
that Sims, when he made reference to a “recent ruling” in his
response to Judge Straub, was referring to my decision. It was
further stipulated that neither my decision nor a citation of my
decision was provided to the court.
Both the Charging Party and the General Counsel contend
that the Second Circuit’s decision, related above, explicitly
holds that leafleting on the Columbus Avenue sidewalk is pro-
tected, and cannot be prohibited by Respondent.
Respondent on the other hand argues that the decision has
little or no precedential significance to the instant case, since
the court’s decision was confined to regulating conduct on the
Plaza. In that regard, Respondent points out that the decision
made no specific findings concerning the Columbus Avenue
sidewalk, and did not discuss the possible effect of the license
agreement on the issue, which issue was neither litigated nor
briefed to the court. Further, Respondent argues that the por-
tion of Judge Straub’s opinion which makes reference to “pub-
lic sidewalks surrounding Lincoln Center,” cannot mean the
Columbus Avenue sidewalk, since this sidewalk is not a public
sidewalk as per the license agreement. Finally, Respondent
contends that even if it is found that the court was including all
sidewalks, in its opinion, that at most any conclusion inferred
from the quoted statement constitute “dicta,” which cannot be
relied on as precedent.
With respect to the issue of what the court meant by “public
sidewalks” in its opinion, I find that it is clear that the court was
referring to all of the sidewalks surrounding Lincoln Center,
including the Columbus Avenue sidewalk.
While as Respondent argues, the decision did at one point re-
fer to “public areas” managed by Lincoln Center to include the
Columbus Avenue sidewalk, it also included Damrosch Park in
that same footnote. Thus it cannot be reasonably contended as
Respondent argues that the court’s reference to public side-
walks meant only the sidewalks other than Columbus Avenue.
The court included Damrosch Park, Dante Park, and all the
sidewalks as alternative venues for leafleting, and made no
distinction between these areas. Further, the exchange during
oral argument between Respondent’s attorney, Sims, and Judge
Straub serves to confirm this conclusion. Attorney Sims, in
response to Judge Straub’s obvious concern about alternative
venues for leafleting, stated that leaflets can be distributed on
the sidewalk under a recent ruling. Since the parties have stipu-
lated that the ruling referred to by Sims was my decision, which
dealt with the Columbus Avenue sidewalk, it is clear that the
Columbus Avenue sidewalk was included in the court’s de-
scription of alternative venues to leaflet.
However, this conclusion does not answer the more impor-
tant question of what significance to be attached to this state-
ment by the court, as well as to the decision in general. I do not
agree with Charging Party or General Counsel that the decision
“resolves the issue” of whether leafleting is protected on the
Columbus Avenue sidewalk, since as Respondent correctly
observes, that issue was not expressly before the court, and it
was not called upon to and did not make any such finding.
Further, the issue of the effect of the License Agreement on the
right to restrict leafleting was not litigated, briefed, nor consid-
ered by the court. Therefore, I agree with Respondent, that the
statements of the court, can at most be considered “dicta.”
Nonetheless, I do not agree with Respondent that “dicta”
cannot be relied on at all. In my view, the decision itself, as
well as the concluding paragraph, constitutes highly persuasive
LINCOLN CENTER FOR THE PERFORMING ARTS 1127
dicta, which can be considered supportive of my previous deci-
sion. I so find.
In my decision, I concluded that based on both New York
law and Federal Constitutional law, peaceful leafleting cannot
be prohibited by the city. Since whatever rights that Respon-
dent has to regulate leafleting is derived from its license agree-
ment with the city, I further concluded that Respondent as the
licensee can have no greater rights than the city, to prohibit
leafleting. I further found that the city, as the licensor, agreed
that Respondent, notwithstanding the license agreement, cannot
prohibit peaceful leafleting on the Columbus Avenue sidewalk.
In my view these findings are supported by the Court deci-
sion in general, as well as the last paragraph of the decision.
The decision made several references to public sidewalks as
public fora, citing many of the same cases cited in my decision.
It is clear from the opinion, that it was quite concerned with the
prohibition against leafleting (as opposed to rallies and demon-
strations) on the plaza.7 Therefore, the statement made in the
opinion by Judge Straub, that the public sidewalks (which I
have found includes the Columbus Avenue sidewalk) provide
ample alternative venues for leafleting, can be construed as at
least an indication that the court would view a prohibition on
leafleting on that sidewalk as constitutionally impermissible. I
so conclude, and therefore find that the Second Circuit’s deci-
sion provides further support for my decision, and my conclu-
sions with respect to the rights of Respondent to prohibit leaf-
leting on the Columbus Avenue sidewalk. That is, the Colum-
bus Avenue sidewalk is considered a public forum under the
precedent cited in my decision, as well as the second circuit
opinion, and Respondent cannot lawfully exclude the Union
from peaceful leafleting there.
The Charging Party, relying on the statements made by At-
torney Sims during the oral argument before the second circuit,
argues that Respondent be estopped from asserting that it can
prohibit leafleting on the Columbus Avenue sidewalk, because
it has unfairly manipulated the judicial process. New Hamp-
shire v. Maine, 532 U.S. 742, 750 (2001). The Supreme Court
therein applied the doctrine of judicial estoppel and set forth
criteria for its assertion. First, a party’s later position must be
clearly inconsistent with its earlier position. Second, the party
must have succeeded in persuading a court to accept that
party’s earlier position, so that judicial acceptance of an incon-
sistent position in a later proceeding would create the percep-
tion that either the first or second court was misled. Third, the
party seeking to assert an inconsistent position would derive an
unfair advantage or impose an unfair detriment, on the oppos-
ing party if not estopped.
The Charging Party argues that all of the above criteria have
been met here for the application of the doctrine, and that Re-
spondent should be precluded from asserting that it can prohibit
leafleting on the Columbus Avenue sidewalk because it played
“fast and loose with the Courts.” In that regard, the Charging
Party notes that Respondent, at both the District Court and Cir-
cuit Court proceedings dealing with the Plaza, continually mis-
led the courts by assuring the judges that the Union had been
and would continue to be allowed to leaflet on the sidewalk,

7 See Krishna v. Lee, supra, also cited in my decision.
while asserting as the courts ultimately concluded that the
sidewalk was one of the appropriate alternative venues for leaf-
leting by the Union, that made Respondent’s decision to ban
such conduct on the Plaza a reasonable one.
Thus, it is asserted and I agree that this position taken by Re-
spondent in that case is clearly inconsistent with the position
taken by it before me, that it had the right to ban such leafleting
on the sidewalk. I also agree that the evidence discloses that
Respondent misled the prior judges by its statements. I note
particularly Sims’ reference to a prior ruling (my decision)
coupled with a statement that the Union can leaflet on the side-
walk. It is significant that Sims did not mention to the court
that this ruling was an administrative law judge decision, which
has no precedential effect, and more importantly that Respon-
dent disagreed with it, and as of that time, had filed the motion
to reopen the hearing, in order to seek dismissal of the com-
plaint.
However, it is not clear whether Respondent can be found to
have derived an unfair advantage or imposed an unfair detri-
ment on the opposing party, if not estopped. The Charging
Party argues that in this regard, that if Respondent had candidly
told the courts of its intention to ban leafleting on the sidewalk,
its alternative venues argument would have been much weaker
and the ban on leafleting on the Plaza would have been viewed
as much less reasonable. However, these assertions are not
clear from the court decision. While the court was certainly
concerned about alternative venues, the sidewalk was but one
of several mentioned by the court, such as Damrosch Park,
Dante Park, and sidewalks other than the Columbus Avenue
sidewalk. It is not at all certain, or even probable that the Court
would have ruled differently, even if Respondent had disclosed
its true position on banning leafleting on the Columbus Avenue
sidewalk. Moreover, there is no evidence that Union relied on
or took any action based on Sims’ misleading statement of
Respondent’s position.
Further, the Board does not apply the doctrine of judicial es-
toppel in cases where it, has not been a party to the prior pro-
ceeding. Fieldbridge Associates, 306 NLRB 322, 323 (1992),
enfd. 982 F.2d 845 (2d Cir. 1993). Moreover, even apart from
the requirement of identity of the parties, in order to give pre-
clusive effect to a prior decision involving a particular issue, (1)
the issues in both proceedings must be identical, (2) the issue in
the prior proceeding must have been actually litigated and de-
cided, and (3) the issue previously litigated must be necessary
to support a valid and final judgment on the merits. Local 32B
v. Fieldbridge, supra, 982 F.2d at 849; PCH Associates, 949
F.2d 585, 593 (2d Cir. 1991).
Here, the issues are clearly different in both cases, since the
prior case involved conduct on the Plaza, while the instant mat-
ter concerned regulating conduct on the sidewalk. Addition-
ally, the issue of the lawfulness of prohibiting leafleting on the
sidewalk was neither litigated nor decided, and the issue of
regulating conduct on the sidewalk was not necessary to sup-
port a valid and final judgment on the merits.8
8 It is true as Charging Party argues that the court’s opinion does
suggest, as I have noted, that it would have found that prohibiting leaf-
leting on the Columbus sidewalk does not meet constitutional muster.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
Accordingly, for the above reasons, I do not deem it appro-
priate to apply the doctrine of collateral estoppel against Re-
spondent and deny it the right to litigate the proprietary of its
actions in prohibiting the Union from engaging in peaceful
leafleting on the Columbus Avenue sidewalk.
However, I do believe that it is appropriate to consider the
statements made by Sims to the court (which were similar to
statements made before the District Court in affidavits and
briefs), as admissions by Respondent, that it did not have the
right to lawfully evict leafleters from the sidewalk. Thus, when
Sims made reference to my decision, in support of his statement
that the union leafleters could leaflet on the sidewalk, this con-
stitutes an admission by Respondent that my decision was cor-
rect with respect to this issue. Sims did not inform the court
that Respondent believed that my conclusion that Respondent
could not lawfully prohibit leafleting on the sidewalk was
wrong, or that it intended to file exceptions to that conclusion.
By failing to do so, Respondent has in my view implicitly
agreed with that conclusion, and such conduct can be construed
as an admission against Respondent. I so find.

However, it made no such explicit finding, and at most such a finding
could be considered dicta.
Conclusion
In sum, I have concluded that Respondent has not estab-
lished that Diaz committed perjury during his prior testimony
and that no changes should be made in any of my prior factual
findings.
Moreover, I also conclude, that even if Diaz’ testimony is
discredited, that the record fully supports all of my prior find-
ings and conclusions of law.
Finally, I conclude that my decision is supported by the
Court of Appeals decision in Local 100 v. City of New York,
and that the statements made by attorney Sims in that case,
constitutes additional admissions (similar to admissions made
before the district court) against Respondent.
I therefore reaffirm all of my prior conclusions and recom-
mend9 issuance of the recommended Order set forth in that
decision.
[Recommended Order omitted from publication.]
9 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.