Loehmann's Plaza

National Labor Relations Board - Board Decisions

Nov 21, 1991

305 N.L.R.B. 663 (N.L.R.B. 1991)

663
305 NLRB No. 81
LOEHMANN’S PLAZA
1 On October 26, 1989, Administrative Law Judge Lowell Goerlich
issued the attached decision. The General Counsel filed exceptions
and a brief in support of the exceptions, and the Respondents filed
an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 A description of the layout of the shopping center is explained
in brief below and more fully in the judge’s decision.
3 Between the driveway and the primary parking lot are seven traf-
fic islands.
4 The areas between the vestibules are covered by the store’s over-
hang.
Makro, Inc. and Renaissance Properties Co., d/b/a
Loehmann’s Plaza and United Food and Com-
mercial Workers Union Local No. 880, AFL–
CIO–CLC. Case 8–CA–21058
November 21, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the questions of whether the Respondents have
violated Section 8(a)(1) of the Act by (1) restricting
the Union’s access to their property by making oral de-
mands that the Union move its pickets and handbillers;
and (2) filing and pursuing a lawsuit seeking injunctive
relief in state court as to the number and location of
the pickets and handbillers.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
I. THE ACCESS ISSUE
The judge found that the Respondents did not vio-
late Section 8(a)(1) by restricting the Union’s access to
their property. We find merit in the General Counsel’s
exceptions.
A. Facts
The Respondent, Makro, Inc. (Makro), operates a re-
tail store, selling both grocery and nongrocery items,
in Willoughby Hills, Ohio. The Respondent, Renais-
sance Properties Co., d/b/a Loehmann’s Plaza (Renais-
sance), owns the strip shopping mall, Loehmann’s
Plaza Shopping Center (Loehmann’s Plaza), where the
Makro store is located. Makro leases the property its
store occupies from Renaissance.
The Makro store is situated in the northeast corner
of Loehmann’s Plaza and faces the shopping center’s
primary parking area2 A vehicle driveway runs parallel
to the storefront and separates the Makro property
from the primary parking area3 This driveway is used
by cars entering and leaving the parking lot and by
customers who pick up purchases at the Makro store.
The storefront has one customer entrance vestibule
and two customer exit vestibules, one on each side of
the entrance vestibule. The vestibules are glass-en-
closed extensions of the building which measure about
40 feet in width and 15 feet in depth. Each vestibule
has a pair of doors about 15 to 20 feet in width on
two sides. Therefore, there are two customer entrances
and four customer exits, each with double doors. The
store frontage is approximately 500 feet.
Islands, measuring 14 feet by 40 feet, planted with
shrubbery stand between each vestibule and the vehicle
driveway. These islands and the vestibules create two
areas between the exit vestibules on either side of the
store’s front and the entrance vestibule in the center of
the store’s front4 These areas are approximately 100
feet wide and 29 feet deep. Shopping carts are stored
in the center of these areas next to the building. The
carts are lined up about 15 feet outward from the wall
of the storefront, approximately 24 feet from the en-
trance and exit doors on either side, and about 14 feet
from the driveway in front of the store.
This leaves an unoccupied blocked U-shaped area of
approximately 2200 square feet between the entrance
vestibule and the exit vestibules on either side of the
store’s entrance. The 15-foot deep part of this open
area, in front of the carts and abutting the driveway,
is used by customers to pull their cars up for loading
their merchandise. There is no raised or curbed side-
walk in front of the Makro store.
Makro is the largest store in Loehmann’s Plaza. The
19 other smaller establishments occupy the space to
the west of Makro and are situated in an L-shape. On
the south side of the plaza, which is bounded by
Chardon Road (Route 6), there are other establish-
ments that are not part of Loehmann’s Plaza. These in-
clude Burger King and Friendly. A large parking lot,
composed of primary and secondary parking areas,
faces the 20 Loehmann’s Plaza stores. As mentioned
above, the primary (but smaller) parking area faces
Makro. The larger secondary parking area faces the
other 19 stores (and the driveway in front of Makro
leads into it). An access driveway runs along the east
side of the primary parking area and connects Chardon
Road with the driveway in front of Makro.
There are three entrances to Loehmann’s Plaza from
Chardon Road, the south border of the shopping cen-
ter. The closest is approximately one-fourth mile from
Makro and directly south of Makro’s eastern side.
(Burger King and Friendly are reached through this en-
trance.) This entrance and the most western entrance
both have traffic lights. A center entrance to the shop-
ping center does not. The speed limit on Chardon
Road is 35 miles per hour.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 No evidence was adduced as to the paths of the pickets stationed
at the exits on the east and west ends of the store’s front. Depending
on the availability of pickets, the Union placed one or two pickets
at each of these exists. Makro’s employment manager Michelle
Broda testified that the area between the exit on the west side of
the store’s front and the next store, Gentry, is open. She stated this
area is approximately 30 feet wide, and that the area between the
exit on the east side of the store’s front and the adjoining outdoor
sales area is 15 to 20 feet wide. Both of these areas share the 29-
foot depth of the areas between the vestibules.
6 The testimony was not consistent as to how far along the length
of the carts the pickets walked. According to union organizer Patri-
cia Baizel’s description, the pickets walked about one-fourth the
length of the carts (about 12 feet) and then turned backed. According
to Michelle Broda, Makro’s employment manager, the pickets
walked between one-half and the full length of the carts, about 25
to 50 feet, before turning back.
7 Makro had a posted no-solicitation rule. The only exception to
this rule had been during the first 5 days of the store’s operations
when employees of the other Loehmann’s Plaza stores (i.e., other
lessees of Renaissance) had been allowed to pass out leaflets both
inside and outside Makro’s vestibules.
There is no evidence that Renaissance has a no-solicitation rule in
the parking lots or other areas of its property. Unrebutted evidence
was presented that other persons had passed out leaflets and solicited
for charity in the primary parking lot.
8 These were the middle and western entrances to the shopping
center off of Chardon Road, approximately three-tenths and four-
tenths miles from Makro.
9 On December 26, 1989, the Ohio Court of Appeals affirmed the
judgment of the trial court.
10 When the Union had extra pickets, it had also placed pickets at
the eastern entrance prior to the injunction.
Parallel to the access road connecting Chardon Road
to the driveway in front of Makro is the north-south
running Bishop Road (State Route 84). This road has
a speed limit of 35 miles per hour. There is an en-
trance off Bishop Road, directly east of Makro, from
which a driveway leads to Makro and Loehmann’s
Plaza. The entrance is about 530 feet from Makro.
Two stores, Reni and Hills (formerly Golden Circle),
are located on the driveway between the Bishop Road
entrance and Makro.
On May 4, 1988, Makro opened its store at its
Loehmann’s Plaza location. That same day, at 7 a.m.,
the Union placed 12 pickets at the store: 2 at each of
the 2 entrances and 2 at each of the 4 exits. The pick-
ets walked about 7 or 8 feet from the entrance and exit
doors. The pickets stationed between the entrance and
exit vestibules5 walked in a path parallel to the door
(in the 24-by 29-foot area parallel to the vestibule and
the island in front of the vestibule) but which then
turned in a L-shape direction leading in front of carts
parked in front of the store6 The pickets carried signs
that read: ‘‘UFCW Local 88. . . . Holding the
line. . . . Don’t shop . . . . [Ghostbuster symbol
across ‘Makro’] . . . . Non-union . . . . For the
American standard of living.’’ The pickets at the exits
also passed out leaflets explaining in more detail the
Union’s position that wages and benefits provided
under the Union’s contracts might be jeopardized by
Makro, whose employees were not covered by union
contracts.
Makro’s general manager Fike and Attorney
Lardakis told the union representatives to move the
pickets ‘‘from the premises’’ because it was private
property. The Union refused to move, except briefly
while a ribbon-cutting ceremony was held.
On May 25, 1988, Renaissance’s general partner,
Robert Stark, and Makro’s two above-named officials
again asked the Union to leave their private property7
Stark told the pickets to go to two of the entrances off
of Chardon Road8 The Makro officials told the Union
to place its pickets at the two entrances closest to
Makro. The Union again refused. The Respondents
filed for injunctive relief in state court on June 6,
1988.
The Union continued the picketing until restrained
by a temporary order of the Court of Common Pleas,
Lake County, Ohio, on June 29, 1988. This order lim-
ited the Union to four pickets no closer than 25 feet
from Makro’s entrance doors. However, this would
have placed the pickets in the middle of the driveway
in front of Makro. Therefore, the injunction effectively
placed the pickets 50 feet from the store on the traffic
islands dividing the primary parking lot from the
driveway in front of Makro.
The Respondents maintained their legal position that
the pickets should be located at the shopping center’s
entrances closest to Makro, and on September 16,
1988, the court entered a permanent injunction9 The
injunction restrained the Union:
. . . from placing more than four (4) pickets on
picket duty in front of the plaintiff store and no
more than two (2) at the entrance to the parking
lot at Route 6 . . . [and] that the pickets shall sta-
tion themselves in the parking lots south of the
front of the store, and may not approach closer to
the front of the building than twenty-five (25)
feet.
Pursuant to the injunction, the Union placed its pick-
ets on the traffic islands in front of Makro. The Union
most commonly used the unpaved traffic island di-
rectly in front of the entrance of the store, although it
would occasionally use the other islands.
In addition, the Union attempted to picket at all the
entrances on Chardon Road.10 Thus, it placed pickets
at the east entrance of Chardon Road, on the Burger
King side of the driveway entrance. However, when
the Burger King manager complained, the Union
moved its pickets across the driveway. At that location,
there were signs advertising Reni and Golden Circle,
two other stores in the vicinity. Reni’s manager then
advised the Union that his customers were complaining
about the signs and asked which Reni was being pick-
665LOEHMANN’S PLAZA
11 This was the only Chardon Road entrance at which the Union
tried to handbill.
12 In a later attempt to handbill in preparation for the state court
hearing, one person took a handbill.
13 291 NLRB 11 (1988).
14 Id. at 14.
15 Id. at 13.
16 In that case, four or five pickets had stood on the sides of an
11-foot opening from the covered sidewalk fronting the store into
the 11-by-21 foot entrance area in which the store’s doors were lo-
cated. Soft drink and newspaper vending machines were also situated
in the entrance area. The Board majority (Member Cracraft dis-
senting) found that the manner in which the union exercised its Sec.
7 right impermissibly interfered with the employer’s private property
right to have its store entrance be free and uncongested. The Board
further found that the union could have effectively communicated its
message in a less physically obtrusive way, such as by using only
one or two pickets. The Board, therefore, dismissed the allegation
that the employer violated Sec. 8(a)(1) by ordering the pickets to
leave.
eted (as the local Reni was organized by the Union).
The Union stopped picketing there.
According to the unrebutted testimony of the
Union’s organizer, Patricia Baizel, the picketing at
these locations was not effective. As she explained,
‘‘[y]ou cannot read the wording on the sign approach-
ing either of those exits on that driveway or from State
Route 6 (Chardon Road). You cannot read them and
clearly understand unless you are practically on top. So
the only people that are able to read them would then
be the people that are stopped for the light.’’
The Union also attempted to picket and pass out
handbills from the center entrance to the shopping cen-
ter off of Chardon Road.11 According to Baizel, in a
1-week effort at handbilling ‘‘no one . . . took a hand-
bill.’’12 Baizel further explained that handbilling was
difficult here because of the speed of the automobiles,
the fact that the windows of the automobiles were
closed, and the pickets were on the opposite side from
the driver. As noted above, there is no traffic light at
this entrance, and, as Baizel testified without contradic-
tion, Chardon is a ‘‘very busy road.’’ As for the most
western entrance to the shopping center off of Chardon
Road, Baizel described it as the ‘‘least entered.’’
B. Analysis
In Jean Country,13 we reexamined and clarified our
analytical approach in access cases. We noted there
that in all access cases, our essential concern will be
the degree of impairment of the Section 7 right if ac-
cess should be denied, as it balances against the degree
of impairment of the private property right if access
should be granted. Consideration of the availability of
reasonably effective alternative means is especially sig-
nificant in this balancing process. But in the final anal-
ysis, there is no simple formula that will determine the
result in every case.14
However, Jean Country provided more specific
guidance to the extent of listing those factors which
are relevant to each of these above-mentioned assess-
ments. Those factors relevant to assessing the strength
of the property right include: the use to which the
property is put; the restrictions, if any, that are im-
posed on public access to the property; and the prop-
erty’s relative size and openness. The factors that may
be relevant to the consideration of a Section 7 right in-
clude: the nature of the right; the identity of the em-
ployer to which the right is directly related (e.g., the
employer with whom a union has a primary dispute);
the relationship of the employer or other target to the
property to which access is sought; the identity of the
audience to which the communications concerning the
Section 7 right are directed; and the manner in which
the activity related to that right is carried out. Finally,
factors that may be relevant to the assessment of alter-
native means include: the desirability of avoiding the
enmeshment of neutrals in labor disputes; the safety of
attempting communications at alternative public sites;
the burden and expense of nontrespassory communica-
tion alternatives; and the extent to which exclusive use
of the nontrespassory alternatives would dilute the ef-
fectiveness of the message.15
The judge found the facts in this case very similar
to those in Tecumseh Foodland, 294 NLRB 486
(1989), where the Board had applied the above-de-
scribed Jean Country standards and dismissed a similar
allegation.16 Similar to the facts in Tecumseh, the
judge found that Makro did not share its building with
another tenant, its pickup areas were under its exclu-
sive control and used only by its customers, and solici-
tations were banned. Further, as in Tecumseh, the audi-
ence the Union sought could not reasonably be reached
by direct personal contact, telephone, or mail and the
detailed nature of the Union’s message could not be
fully contained on a picket sign.
Based on these factors, the judge reached the same
conclusion as in Tecumseh, i.e., ‘‘a proper balancing of
the parties’ rights here would permit the Union to dis-
tribute its handbills in some manner and at some place
on the Respondent’s property.’’ The judge found that
the manner in which the Union sought to exercise its
Section 7 right by congregating 12 pickets in a ‘‘lim-
ited area’’ near the entrance and exits of the store,
where store carts were parked and customers picked up
purchased items, impermissibly impaired Makro’s
property rights. The judge concluded that one picket at
each entrance and exit would have been sufficient to
publicize the Union’s message and would have caused
no congestion or impairment of the Respondent’s prop-
erty rights. Accordingly, he dismissed the complaint.
In his exceptions, the General Counsel argues that
Tecumseh is distinguishable from the facts at hand. In
support of this argument, the General Counsel com-
pares the 500-foot store frontage with six separate en-
trances and exits here (and each with a 15-to-20 foot
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 No evidence was presented as to the contents of the complaints.
18 This apparently includes the outside area immediately adjoining
Makro’s entrances and exits, where the Union initially chose to pick-
et.
19 Although membership in Makro is necessary to shop at that
store, apparently the requirements for membership are slight. Ac-
cording to undisputed testimony of union organizer Baizel, when she
telephoned Makro to ask how to become a member, she was told
she must show a driver’s license and a checkstub, but that showing
a driver’s license would be sufficient.
20 See Red Food Stores, 296 NLRB 450 (1989).
21 Makro apparently shares this control with lessor Renaissance.
22 See Target Stores, 292 NLRB 933, 934–935 (1989).
23 E.g., Jean Country, supra.
door facing an area of at least 24 by 29 feet in which
each pair of pickets walked) to the 11-by-21 foot area
in Tecumseh. At each of these doors, the Union had
placed two pickets as compared with the five pickets
in the smaller area in Tecumseh. In addition, the Gen-
eral Counsel cites the fact that in the 2 months of pick-
eting and handbilling prior to the state court injunction
there were only 2 complaints made to Makro about the
picketing, with over 70,000 leaflets handed out.17 On
the other hand, in Tecumseh, there had been 2 com-
plaints in the first 5 minutes that picketing had been
allowed. The General Counsel points out that in Te-
cumseh, the Board stated the union could have placed
fewer pickets, i.e., 1 or 2 pickets, and thereby been al-
lowed to remain at that location. As the General Coun-
sel asserts, this is exactly what the Union did here. It
placed 2 pickets at each entrance and exit, the areas
adjoining which were larger than the area in Tecumseh.
The General Counsel further argues that applying the
standards set forth in Jean Country, supra, the Re-
spondents violated Section 8(a)(1) by directing the
Union to move its pickets from the entrances and exits
to Makro.
We agree with the judge, as discussed below, that
there are some similarities between the instant facts
and those in Tecumseh. However, our full assessment
of the Jean Country factors shows that Tecumseh is
distinguishable.
First, regarding the factors relevant to assessing the
weight of the Respondents’ property rights, we note
that Renaissance owns, and Makro leases, the property
that the store occupies.18 Makro also has a nonexclu-
sive easement to use the common area (the parking
lots) of Loehmann’s Plaza and for its customers to do
so. Makro shares this easement with the other lessees
in Loehmann’s Plaza. Makro has no other property
rights in Loehmann’s Plaza, which is owned by Ren-
aissance.
As to the property near the entrances and exits,
these areas are generally open to Makro’s customers,
who are members of the general public.19 As discussed
above, Makro did have a no-solicitation rule pertaining
to its property. The only occasion when this rule was
not applied was during the first 5 days of Makro’s op-
eration, when, as described above, representatives from
other lessees of Renaissance were allowed to leaflet
both inside and outside the store’s vestibules.
As further relevant to the property interest, we note
the 500-foot frontage of the store, which includes two
entrances and four exits. The area between each en-
trance and one of the exits is approximately 100 by 29
feet, although approximately 50 by 15 feet of this area,
closest to the store, is occupied by shopping carts. Fur-
ther, the part of this area adjoining the driveway in
front of Makro, which measures approximately 100
feet by 14 feet deep, is used by customers to back up
their cars for loading merchandise. No evidence was
presented that the picketing ever interfered with this
activity.
As for the shopping center in general, it is open to
the general public and shoppers could park in either
the primary or secondary lots regardless of which store
they were patronizing. There is no evidence that solici-
tations were banned in parts of the shopping center
other than at the Makro store. On the other hand,
unrebutted testimony showed that other persons passed
out leaflets in the primary parking lot.
We find that Renaissance’s interest in the property
it owns and Makro’s interest in the property it leases
are not insubstantial.20 Makro, although part of a shop-
ping center, does not share its building with other ten-
ants, bans solicitations, and maintains exclusive control
of the pickup areas,21 which are used only by its cus-
tomers. In the area immediately outside of Makro’s en-
trances and exits, Makro maintains a generally en-
forced no-solicitation rule.22
Next, examining the nature of the Union’s conduct,
we note that the language on the Union’s picket signs
and leaflets communicated an area standards objective.
Although nonemployee area standards picketing and
handbilling has lesser significance in the scheme of
Section 7 than direct organizational solicitation or the
protestation of unfair labor practices, it is clearly pro-
tected.23
Further, after balancing this right against the above-
described right, in light of the degrees to which the
grant or denial of access would impair either right, we
agree with the judge that the Union should be per-
mitted to distribute its handbills somewhere on the Re-
spondents’ property. It is at this point, however, that
we part company with the judge’s analysis. He contin-
ued to find Tecumseh applicable and, as in that case,
found the manner and location of the Union’s pick-
eting had impermissibly impaired the Respondents’
property rights.
The decision in Tecumseh is very much controlled
by the number of pickets in proportion to the size of
the employer’s open area. The situation at the Makro
store is not comparable. The General Counsel has cor-
667LOEHMANN’S PLAZA
24 Three of the four areas are three times as large as the 11-by-
21 foot area in Tecumseh. The fourth area, that adjoining the most
eastern exit, as described in fn. 4 above, is 15 to 20 feet by 29 feet.
25 Cf. Tecumseh, supra at 488, fn. 7.
26 As noted above, this contrasts with the two complaints made in
Tecumseh in the 5 minutes of picketing.
27 As described above, this was not the case when the Union tried
to picket at other locations in the shopping center. Thus, when it
picketed near Burger King and a sign advertising Reni, managers
from both stores complained, in part, about the confusing impression
of what store was being picketed.
28 In their brief, the Respondents did not contest the judge’s find-
ings on this point.
29 See W. S. Butterfield Theatres, 292 NLRB 30 (1988).
30 This was the same request the Respondents made in their in-
junctive action, without clarifying what two entrances they meant.
31 During the hearing, and again in its exceptions, the Respondents
contended that the Union’s picketing and leafleting from the traffic
islands in front of Makro to which it was moved by the state court
injunction provided a reasonable alternative to its original picketing
Continued
rectly stated that each of the areas in which the pairs
of pickets walked is larger than the area in which the
Board stated in Tecumseh the union would have been
permitted to place two pickets.24 In the absence of any
evidence that the pickets interfered with the ingress or
egress of customers, we find that the number and loca-
tions of the pickets do not, standing alone, establish a
reasonable likelihood that customers would have dif-
ficulty gaining access to the store.25
Instead, considering the size of Makro’s store and
the areas near its entrances and exits, we find that the
number of pickets was reasonable. As noted above, in
2 months of picketing during which time 70,000 leaf-
lets were handed out, Makro received only 2 com-
plaints,26 and the evidence does not show if they re-
lated to any disturbance caused by the picketing. The
evidence indicates that the pickets were peaceful and
unobstructive, and there is no evidence that the dis-
tribution of handbills at the store entrances and exits
any more inhibited the flow of traffic to and from the
stores than did the pickets, i.e., there was no littering
or other obstructive impairment of the Respondent’s
property rights. The pickets at the storefront entrances
and exits were also in such proximity to Makro’s cus-
tomers that the Union could not have more carefully
restricted its activities to reach the intended audience
while not disturbing others.27 In these circumstances,
the Union’s area standards picketing, although not at
the strong end of the spectrum of Section 7 rights, was
certainly worthy of accommodation against substantial
impairment.
Turning to the question of the Union’s alternative
means of communicating its message, we agree with
the judge that the audience the Union sought could not
reasonably be reached by direct personal contact, tele-
phone, or mail. The Union’s message here, which was
primarily intended to benefit union members employed
elsewhere, was directed at a diverse population con-
sisting of Makro’s customers, which was not readily
identifiable. Also as the judge found, it would not be
reasonable to insist that the Union undertake the bur-
den and expense of a public media campaign when
there was no likelihood that such a campaign would
even reach its intended audience. Further, we agree
with the judge’s finding that the information could not
be fully contained on a picket sign.28 This is con-
firmed by comparison of the brief message on the
picket signs with the full page letter message in the
union leaflet in which the Union sought to give poten-
tial customers more complete information regarding its
dispute with Makro.
Further, we find that picketing or handbilling near
the entrances off of Chardon Road was generally inef-
fective, possibly dangerous, and enmeshed neutral em-
ployers. Leafleting was not effective to persons in the
passing cars and, according to the unrebutted testimony
of union organizer Baizel, the picket signs were also
unreadable from the passing cars. In view of evidence
that the automobiles were entering from Chardon
Road, which has a speed limit of 35 miles per hour,
the safety of those picketing locations may also be
questioned.29
In addition, when the Union picketed at two loca-
tions near the eastern entrance off of Chardon Road,
it encountered complaints by neutral employers. This
same problem could reasonably be expected from the
Union’s picketing at the other two entrances off of
Chardon Road, which were even further away from
Makro, and close to other stores.
For the above reasons, the entrances to the shopping
center off of Chardon Road, to which the Respondents
directed the Union to move its pickets, were not rea-
sonable alternatives to the Union’s choice of picketing
near Makro’s entrances and exits.
The Union did not attempt to picket from the en-
trance to the shopping center off of Bishop Road,
Route 84. This latter entrance might possibly be one
of the entrances that Makro had in mind, when its offi-
cials, on May 25, directed the Union to move its pick-
ets to the two entrances closest to Makro.30 However,
there is no record evidence which would would war-
rant distinguishing that entrance to the shopping center
from those off of Chardon Road, as far as safety, ef-
fectiveness of picketing, or enmeshment of neutrals is
concerned. Cars were entering the shopping center
from this entrance also from a road with a speed limit
of 35 miles per hour, and other stores were nearby
which passengers who saw the signs might believe
were the objects of the picketing.
We conclude that none of the entrances to the shop-
ping center afforded a reasonable alternative for the
Union to transmit its message by picketing and
leafleting.31 Accommodating the private property and
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
location. However, on May 4, Makro officials told the Union to
move its pickets ‘‘from the premises’’ because it was private prop-
erty. On May 25, these officials told the Union to place its pickets
at the two entrances closet to Makro, and Renaissance’s general part-
ner told the Union to move the pickets to two of the entrances off
of Chardon Road. In view of these facts, we find the Respondents
were directing the pickets off all their property except two entrances
at the perimeter of the shopping center. Further, in their injunctive
action, the Respondents continued to assert their position that they
did not want the pickets any closer than the entrances to the shop-
ping center.
Prior to the state court’s temporary restraining order on June 29,
1988, there was no reasons for the Union to believe that the Re-
spondents would have permitted picketing at any location closer than
the perimeter of the shopping center. Therefore, the traffic islands
in front of Makro cannot properly be considered as a reasonable al-
ternative at the pertinent time of the alleged unfair labor practice
when the Respondents directed the Union to move its pickets. See
Little & Co., 296 NLRB 691 (1989); W. S. Butterfield Theatres,
supra at fn. 9; and Jean Country, supra at fn. 18.
Further, that the Respondents permitted the picketing at this loca-
tion after the state court injunction was issued indicates only that
they too were bound by the injunctive action. It does not provide
a basis for exonerating the Respondents from directing the Union not
to picket any closer than the entrances to the shopping center nor
was it an alternative offered by the Respondents. We, therefore, con-
sider it unnecessary to decide whether picketing on the traffic islands
in front of Makro was a reasonable alternative.
32 Jean Country, supra at 19, citing NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956).
33 The Respondents filed for injunctive relief on June 6, 1988; the
instant charge was filed June 21, 1988; and the complaint issued
March 30, 1989.
34 However, in that case, unlike this one, no party timely raised
the issue of whether Bill Johnson’s is inapplicable because of pre-
emption. See the Board’s subsequent Order reported at 298 NLRB
410 (1990) (Chairman Stephens dissenting), denying the General
Counsel’s and the Charging Party’s motions for reconsideration. Ac-
cordingly, Giant Food is of limited relevance here.
Section 7 rights pursuant to our analysis in Jean Coun-
try, we find that the impairment to the Respondents’
property interests if access were granted to the Union
would not be substantial, in light of the unobtrusive
manner in which the Union carried out its picketing.
By contrast, in the absence of a reasonable alternative
means of communication, the Union’s Section 7 right
would be ‘‘severely impaired–-substantially ‘destroyed’
within the meaning of Babcock & Wilcox’’32 without
entry onto the property adjoining Makro’s entrances
and exits. We find that the Section 7 right outweighed
the Respondents’ right to restrict access to their private
property in this particular context, and the Union was
entitled to engage in picketing and handbilling that it
conducted at the entrances and exits of Makro’s store.
Accordingly, we conclude that Makro’s directions
on May 4 and 25, 1988, and Renaissance’s directions
on May 25, 1988, for the Union to move its pickets
violated Section 8(a)(1) of the Act.
II. THE LAWSUIT ISSUES
The complaint further alleges that the Respondents
violated Section 8(a)(1) by seeking injunctive relief, as
described above, in the Court of Common Pleas, Lake
County, Ohio, as to the number and location of pickets
and handbillers.33 Because the judge found that the
Respondents’ statements to the Union to move its
pickets did not violate Section 8(a)(1), he did not spe-
cifically discuss the second allegation. Instead, he rec-
ommended that the complaint be dismissed in its en-
tirety.
In his exceptions, the General Counsel argues that
the Union had a right to picket and handbill at the en-
trance to the Makro store and that, therefore, the Re-
spondents violated Section 8(a)(1) by seeking injunc-
tive relief against the Union. The General Counsel as-
serts that under the preemption doctrine set forth in
San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), a state court suit attacking as
trespassory peaceful union picketing and handbilling
on private property is preempted if the Board has the
same issue before it.
The General Counsel argues that preempted cases
are excluded from the general principles of Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731 (1983). This
argument refers to footnote 5 of that decision in which
the Court stated that it was not dealing with lawsuits
claimed to be beyond a state court’s jurisdiction be-
cause of Federal preemption or a suit that has an ob-
jective that is illegal under Federal law. The General
Counsel cites the risk that conflicting remedies will re-
sult if preemption is not found. He points to the fact
that this is exactly what has happened in the instant
case: the state court has allowed the pickets no closer
than 25 feet to the store entrances, although the judge
in his decision stated that one picket at each exit and
entrance would have been sufficient to have publicized
the Union’s message and caused no impairment of the
Respondents’ property rights. The General Counsel
claims a dilemma might result if the Union heeded the
judge’s directions (should it be adopted by the Board)
and thereby apparently placed itself at risk of contempt
proceedings before the state court. The General Coun-
sel further argues that because the lawsuit on its face
is aimed at the exercise by the Union of its protected
right to handbill and picket, it is a violation of Section
8(a)(1).
In their answering brief, the Respondents argue that
Giant Food Stores, 295 NLRB (1989),34 has resolved
the issue of whether a state court trespass action vio-
lates Section 8(a)(1) if maintained after the picketing
union files an unfair labor practice charge. They assert
that, according to Bill Johnson’s, supra, when an em-
ployer is successful, as the Respondents were here, in
obtaining an injunction, the lawsuit cannot be found to
lack a reasonable basis and is, therefore, lawful even
in the event that it is filed for a retaliatory motive.
The Respondents further assert that any dilemma
posed by the contrasting restrictions imposed by the
state court and the judge were a result of the Union’s
669LOEHMANN’S PLAZA
35 Bill Johnson’s, supra at 737–738.
36 Garmon, supra at 244.
37 Id. at 245.
38 436 U.S. 180 (1978).
39 Id. at 202. Although that opinion also addressed arguably pro-
hibited activity, because here only arguably protected activity is
present, we limit our discussion to the latter.
40 Id. at 207.
41 See also Clyde Taylor Co., 127 NLRB 103, 109 fn. 11, 110
(1960), in which the Board unanimously left undisturbed the trial ex-
aminer’s finding that the subject matter of the state court lawsuit
seeking an injunction against peaceful picketing was preempted by
the Act, and, therefore, the state court had no jurisdiction to enjoin
the picketing.
42 Sears, supra at 207 fn. 44.
43 See Sears, supra at 206–207 fn. 43, which holds that, when in-
voked, the jurisdiction of the Board over arguably protected activity
is superior to that of the state courts. See also Garmon, supra at 245,
‘‘If the Board decides, subject to appropriate federal judicial review,
that the conduct is protected by § 7 . . . the States are ousted of
all jurisdiction.’’ See also Brown v. Hotel & Restaurant Employees
Local 54, 468 U.S. 491, 500–503 (1984) (preemption of actually
protected, as contrasted with arguably protected, activity applies by
‘‘direct operation of the Supremacy Clause’’ ‘‘not as a matter of
protecting primary jurisdiction, but as a matter of substantive
right’’).
acting in a manner beyond the protection of its Section
7 rights. They, therefore, argue that the Board proc-
esses should not now be invoked to protect the Union
from the consequences of its own unprotected activity.
A. Are State Court Lawsuits Seeking to Enjoin
Peaceful Union Picketing or Handbilling on
Private Property Preempted by Federal Law and,
if so, when does Preemption Occur?
In Bill Johnson’s, the Supreme Court considered
whether the Board could enjoin the prosecution of a
state court civil suit. The Court concluded that for a
lawsuit to be an enjoinable unfair labor practice it must
both lack a reasonable basis and have been filed with
the intent of retaliating against an employee for the ex-
ercise of Section 7 rights. However, in reaching its de-
termination in Bill Johnson’s, the Court at footnote 5,
stated that it was not addressing the legality of all law-
suits:
It should be kept in mind that what is involved
here is an employer’s lawsuit that the federal law
would not bar except for its allegedly retaliatory
motivation. We are not dealing with a suit that is
claimed to be beyond the jurisdiction of the state
courts because of federal law preemption, or a
suit that has an objective that is illegal under fed-
eral law. Petitioner concedes that the Board may
enjoin these latter types of suits. . . . Nor could
it be successfully argued otherwise, for we have
upheld Board orders enjoining unions from pros-
ecuting court suits for enforcement of fines that
could not lawfully be imposed under the Act
. . . and this Court has concluded that, at the
Board’s request, a District Court may enjoin en-
forcement of a state-court injunction ‘‘where [the
Board’s] federal power pre-empts the field.’’
NLRB v. Nash-Finch Co., 404 U.S. 138, 144
(1971).35 [Emphasis added].
We, therefore, must address whether, and also when,
state court lawsuits seeking to enjoin peaceful union
picketing or leafleting are preempted by Federal law.
In Garmon, supra, the Court set forth two general
guidelines for determining the scope of NLRA preemp-
tion. First, the States must yield to the Board’s primary
jurisdiction over conduct clearly protected or prohib-
ited by Sections 7 or 8 of the Act.36 The Court’s sec-
ond guideline concerns us here:
When an activity is arguably subject to § 7 or §
8 of the Act, the States as well as the federal
courts must defer to the exclusive competence of
the National Labor Relations Board if the danger
of state interference with national policy is to be
averted.37 [Emphasis added].
In Sears, Roebuck & Co. v. Carpenters,38 however,
the Court carved out an exception to the second
Garmon guideline. There, the Court found that a state
court trespass action seeking to enjoin peaceful union
picketing on the employer’s property was not pre-
empted. The basis for the Court’s holding was that no
risk of overlapping jurisdiction existed concerning the
arguably protected activity at issue because the union
never filed an unfair labor practice charge, and, there-
fore, the employer could not directly obtain a Board
ruling on whether the trespass was protected.39 The
Court further explained that if the union did file an un-
fair labor practice charge, ‘‘the protection question
would then be decided by the agency experienced in
accommodating the § 7 rights of unions and the prop-
erty rights of employers in the context of a labor dis-
pute.’’40 In sum, by this decision, the Court announced
that (1) where arguably protected activity is involved,
preemption does not occur in the absence of Board in-
volvement in the matter, and (2) upon the Board’s in-
volvement, a lawsuit directed at arguably protected ac-
tivity is preempted by Federal labor law.41 It is clear
that under Sears preemption does not occur before an
unfair labor practice charge is filed, at least so long as
the landowner has communicated to the trespassers a
demand that they leave before filing the trespass suit.42
It is also clear under Sears that when the Board issues
a decision finding the conduct protected, the Board’s
decision and remedy preempts any state court action.43
The Court majority in Sears did not more specifi-
cally state when preemption would occur. In a concur-
rence, Justice Blackmun asserted the view that preemp-
tion operates when an unfair labor practice charge has
been filed. In a separate concurrence, Justice Powell
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 See Sears, supra at 206–207 fn. 43, which explains that state
jurisdiction over arguably protected activity is ousted when the
Board’s jurisdiction is invoked. See also Garmon, supra at 245.
45 476 U.S. 380 (1986).
46 Id. at 395.
47 NLRB Casehandling Manual (Part One) Unfair Labor Practice
Proceedings, Sec. 10050.
48 Sec. 101.8 of the Board’s Statements of Procedure.
49 NLRB Casehandling Manual (Part One) Unfair Labor Practice
Proceedings, Sec. 10260.
50 Although a state court lacks authority to determine whether con-
duct constitutes an unfair labor practice, it would not, of course, be
barred from taking federally protected interests into consideration in
determining whether to enjoin a trespass by peaceful pickets or
handbillers before the General Counsel decides whether to issue
dated preemption at the time the General Counsel
issues a complaint. The three dissenting justices, Jus-
tices Brennan, Stewart, and Marshall, found preemp-
tion even in the absence of a charge. In sum, reading
the majority opinion with Justice Powell’s concurrence,
Sears seems to indicate that the state suit is preempted
at least by the time the General Counsel has acted to
place the issue before the Board by issuing a com-
plaint.44
In Longshoremen ILA v. Davis,45 issued subsequent
to Bill Johnson’s, the Court provided guidance as to
the point between the charge and the Board decision
when preemption should occur. In that case, the Court
ruled that a party asserting NLRA preemption must do
more than merely assert that the activity involved is ar-
guably protected or prohibited by the Act. As the
Court stated:
If the word ‘‘arguably’’ is to mean anything, it
must mean that the party claiming pre-emption is
required to demonstrate that his case is one that
the Board could legally decide in his favor. That
is, the party asserting pre-emption must advance
an interpretation of the Act that is not plainly con-
trary to its language and that has not been ‘‘au-
thoritatively rejected’’ by the courts or the Board.
Marine Engineers v. Interlake S.S. Co., 370 U.S.
173, 184 (1962). The party must then put forth
enough evidence to enable the court to find that
the Board reasonably could uphold a claim based
on such an interpretation.46
We find that this test is not met merely by the filing
of a charge. That action does not require any presen-
tation of evidence. Neither does it involve any deter-
mination by a government official on the merits of an
allegation. On the other hand, before the General
Counsel issues a complaint, he conducts an investiga-
tion in order ‘‘to ascertain, analyze, and apply the rel-
evant facts.’’47 Only if ‘‘the charge appears to have
merit’’ will a complaint issue.48 That event ‘‘marks the
substitution of a formal allegation of law violation in
the name of the United States Government for a charge
by a ‘person.’’’49 Stated differently, when the General
Counsel issues a complaint, he has made a determina-
tion, pursuant to his ‘‘final authority’’ under Section
3(d) of the Act, that sufficient evidence has been pre-
sented to demonstrate a prima facie case. With regard
to the lawsuits of the kind in issue here, the General
Counsel’s decision to issue a complaint signifies that
a showing has been made that the union picketing or
handbilling is arguably protected by the Act, the sub-
stantive requirement for preemption under Sears and
the procedural requirement for preemption under
Davis, because an unfair labor practice is committed
only by interference with activity the Act protects. Ac-
cordingly, we find that when the General Counsel
issued a complaint alleging that the Respondents’ law-
suit constituted unlawful interference with protected
activity, the requirements for establishing preemption
were met.
B. The Respondents’ Precomplaint Pursuit of the
State Court Lawsuit
From the above discussion it follows that prior to
the issuance of the complaint, the Respondents’ lawsuit
was not preempted. (The Respondents had asked the
pickets and handbillers to leave before filing the suit.)
Therefore, the legality of the suit during that time pe-
riod must be evaluated under the standards set forth in
Bill Johnson’s.
No evidence has been presented that the Respond-
ents’ purpose in pursuing their lawsuit prior to the time
that the General Counsel issued his complaint was
other than to protect or, at least have adjudicated, their
property rights. Thus, there is no showing of any retal-
iatory or other unlawful purpose. We, therefore, find
that the Respondent’s precomplaint pursuit of their
state court lawsuit was lawful. We, accordingly, dis-
miss the complaint to the extent it claims this conduct
violated Section 8(a)(1).
C. The Respondents’ Postcomplaint Pursuit of the
Preempted State Court Lawsuit
A different analysis is warranted with respect to the
Respondent’s postcomplaint pursuit of the state court
lawsuit. The Respondents’ prosecution of the suit dur-
ing that time period need not be evaluated under Bill
Johnson’s because the suit was preempted and thus fell
within the footnote 5 exception to the Court’s decision.
For the reasons stated below, we find that there is a
sound basis for applying a different rule to a pre-
empted lawsuit alleged to violate Section 8(a)(1) of the
Act.
As this case illustrates, prior to preemption of state
court jurisdiction under Garmon over conduct arguably
subject to the Act, a respondent pursuing its state court
action seeking to enjoin trespassory union picketing
has a right to protect, or at least have adjudicated, its
property rights.50 However, once the General Counsel
671LOEHMANN’S PLAZA
complaint. In other words, the rule we announce here does not con-
template a regime in which state courts will invariably issue injunc-
tions prior to the General Counsel’s decision on related unfair labor
practices charges.
51 See Sears, supra at 206–207 fn. 43; Garmon, supra at 245;
Brown v. Hotel & Restaurant Employees Local 54, supra, 468 U.S.
at 502–503. Any decision by the Board in the unfair labor practice
proceeding will also necessarily prevail over a conflicting decision
by a state tribunal. See fn. 43, supra.
52 Longshoremen ILA v. Davis, supra, 476 U.S. at 393. Most state
courts, including the courts of the State in which the present pro-
ceeding arose, are well aware that they lack power to proceed in
matters preempted under Garmon. See, e.g., Riesbeck Food Markets
v. Food & Commercial Workers Local 23, 404 S.E.2d 404, 406–411
(W.Va. 1991); Cross County Inn v. Carpenters, 50 Ohio App.3d 8,
552 N.E.2d 232, 236 (Ct. App. 1989). Indeed, many have acceded
to preemption of their jurisdiction as of the filing of an unfair labor
practice charge. Riesbeck, supra, 404 S.E.2d at 410, and cases there
cited. It can hardly be said, therefore, that we manifest any insen-
sitivity to rights under state trespass laws through our holding that
it is an unfair labor practice to pursue postcomplaint litigation aimed
at ejecting from property persons who are subsequently determined
to have a federally protected right to be there.
53 NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946).
54 Clyde Taylor established the general principle that the filing of
a lawsuit is not in and of itself an unfair labor practice. In later
cases, the Board carved out exceptions to that general rule. See gen-
erally Power Systems, 239 NLRB 445, 449–450 (1978), enf. denied
on other grounds 601 F.2d 936 (7th Cir. 1979). However, to date
the Board has not expressly held that seeking to enjoin peaceful
picketing is unlawful. To the extent that it is inconsistent, we over-
rule Clyde Taylor.
55 Should peaceful picketing become violent or disruptive, the ac-
tivity would lose its protected status under well-settled precedent,
e.g., Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957), and the
State’s strong local interest in protecting the safety of its citizens
would prevail.
56 When the General Counsel issues a complaint alleging that a re-
spondent is violating Sec. 8(a)(1) by unlawfully interfering with
union picketing or handbilling on its premises and if the General
Counsel is aware of a pending state court proceeding in which the
same matter is being litigated, we believe it would be beneficial for
him to issue simultaneously a notice to that court and to the re-
spondent. A suggested format of this notice is attached as ‘‘Appen-
Continued
decides to initiate a formal adjudicatory proceeding,
the Board’s jurisdiction is invoked and it becomes the
exclusive forum for an adjudication of a respondent’s
property rights.51 Because at that point the state court
tribunal ‘‘has no power to adjudicate the [preempted]
subject matter,’’52 any attempt to continue the litiga-
tion necessarily amounts to pure harassment, i.e., an
effort to subject the defendant or defendants in the
lawsuit to litigation costs and burdens before a tribunal
that indisputably lacks jurisdiction over the matter at
that time.
As stated above, at the point of preemption, the spe-
cial requirements of Bill Johnson’s do not apply. Rath-
er the ‘‘normal’’ requirements of established law
apply. Under settled principles, a violation of Section
8(a)(1) is established if it is shown that the employer’s
conduct has a tendency to interfere with a Section 7
right.53 Accordingly, if the Board in the unfair labor
practice proceeding finds that picketing or handbilling
on the property in question is protected by Section 7,
and if a preempted state court lawsuit is aimed at en-
joining that Section 7 activity, it is clear that the law-
suit tends to interfere (indeed, it is designed to stop)
the exercise of a Section 7 right. Accordingly, the law-
suit is unlawful under Section 8(a)(1).54
As an employer’s unlawful exclusion of employees
or union representatives from its property violated Sec-
tion 8(a)(1) without regard to the employer’s motive in
excluding them, there is no reason for requiring a
showing of retaliatory motive when the employer pur-
sues a preempted trespass suit seeking the same end.
Accordingly, in cases concerning the lawfulness of
preempted state court trespass lawsuits, we shall not
require that retaliatory motive be shown as an element
of an 8(a)(1) violation.
We emphasize that our decision does not foreclose
a respondent from obtaining a ruling on the question
of whether the union has a Federal right to remain on
its property. That issue will be litigated in the formal
Board proceeding that follows the General Counsel’s
issuance of his complaint. We also emphasize that this
policy is in no way intended to frustrate a State’s prop-
er concern for maintaining domestic peace. A com-
plaint alleging that the expulsion or attempted expul-
sion of pickets or handbillers from private property
constitutes an unfair labor practice would necessarily
be based only on picketing or handbilling that the Gen-
eral Counsel deemed peaceful and protected. In issuing
a complaint alleging interference with protected activ-
ity, the General Counsel has made the determination
that unprotected activity, such as violent or mass pick-
eting, is not present. Where the General Counsel finds
unprotected activity, no complaint will issue, and state
court jurisdiction to enjoin this unprotected activity
will, of course, be unimpeded by any preemption of
the Act. However, where a complaint alleging pro-
tected activity issues, the Board’s statutory mandate to
prevent unfair labor practices would properly prevail
over the State’s interest in protecting private property
against a trespass.55
Based on the above discussion, we hold that the fil-
ing or active pursuit of a state court lawsuit seeking
to enjoin protected peaceful picketing after the point of
preemption–-when a complaint issues concerning the
same activity–-tends to interfere with Section 7 rights
thereby violating Section 8(a)(1) of the Act. Accord-
ingly, if there is a pending state court lawsuit when a
complaint issues, the respondent has the burden to
show that it has taken affirmative action to stay the
state court proceeding within 7 days of the issuance of
the complaint. If there is an outstanding injunction
when a complaint issues, the respondent has the bur-
den to show that it has taken affirmative action to have
the injunction withdrawn within 7 days of the issuance
of the complaint.56
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dix C.’’ The notice will state that the Board is asserting jurisdiction
over the picketing or handbilling at issue, that state court jurisdiction
is preempted until such time as the Board holds the picketing or
handbilling to be unprotected, and that the state court action should
be held in abeyance pending the Board’s decision. The notice will
also inform the respondent that it may not actively pursue the law-
suit and that it has 7 days to seek a stay of the state court pro-
ceedings. If there is an outstanding injunction, the respondent has 7
days to seek to have it withdrawn. Further, the respondent will be
informed that it runs that risk of violating Sec. 8(a)(1) if it does not
heed these instructions. This notice is intended as a courtesy only
and the failure of a respondent to receive one will not constitute a
defense to an unfair labor practice allegation.
57 The Court of Common Pleas, Lake County, Ohio, entered a per-
manent injunction on September 16, 1988, prior to the issuance of
the complaint in this proceeding. The Union appealed this decision
to the Court of Appeals, Eleventh District, Lake County, Ohio, and
on December 26, 1989, the court of appeals affirmed the judgment
of the trial court.
58 As noted in fn. 34, supra, Giant Food Stores, 295 NLRB 330
(1989), provided no reliable basis for assessing the Board’s view of
the application of Bill Johnson’s to preempted lawsuits. The Board’s
order denying motions for reconsideration in that case stated that the
parties had not previously made arguments based on the footnote in
Bill Johnson’s referring to preempted lawsuits, and the Board was,
therefore, declining to consider the ‘‘legal sufficiency’’ of those ar-
guments because they were untimely raised. Giant Food Stores, 298
NLRB 435 fn. 4 (1990).
59 Because we have concluded that the Union’s picketing was pro-
tected activity, as noted above, the Board’s decision supersedes that
of the state court. See Garmon, supra at 245 (‘‘[i]f the Board de-
cides, subject to appropriate federal judicial review, that conduct is
protected by § 7, or § 8, then the matter is at an end, and the States
are ousted of all jurisdiction’’); and Sears, supra at 206–207, fn. 43.
60 283 NLRB 1173 (1987). See also Summitville Tiles, 300 NLRB
64 (1990).
On March 30, 1989, the General Counsel issued the
instant complaint alleging that the Respondent violated
Section 8(a)(1) by interfering with the Union’s peace-
ful protected activity of picketing and handbilling. The
Respondents did not they seek to have the injunction
withdrawn.57 We, therefore, find that the Respondents
also violated Section 8(a)(1) by their pursuit of their
lawsuit seeking to enjoin the Union’s peaceful pick-
eting and handbilling after the complaint in this pro-
ceeding issued on March 30, 1989.
D. Application of Our Holdings to the
Present Case
Application of an arguably new rule to the parties
in the case in which it is announced (and to parties in
other cases pending at that time) is permissible so long
as this does not work a ‘‘manifest injustice.’’ See, e.g.,
NLRB v. Bufco Corp., 899 F.2d 608, 609 (7th Cir.
1990), and cases there cited. We see no injustice to
any of the parties here in retroactive application of our
rulings because the current state of the law governing
lawsuits against trespassers exercising Section 7 rights
can fairly be described as unsettled.
Certainly, the law was clear between 1960 and 1978,
when, as explained in section C, above, Clyde Taylor
Co., supra, was a governing precedent that precluded
the Board from finding that the maintenance of a law-
suit seeking to obtain an injunction against Section 7
activity was an unfair labor practice. In 1978, in Power
Systems, supra, the Board carved out a large exception
to Clyde Taylor, but purported not to overrule it. The
Supreme Court in Bill Johnson’s, supra, 461 U.S. at
739, nonetheless expressed the view that Power Sys-
tems had provided a purely ‘‘illusory’’ basis for distin-
guishing Clyde Taylor and had, in effect, overruled it.
Further uncertainty about the status of state court law-
suits vis-a-vis Board proceedings was introduced by
the Sears dicta, discussed above.58
Under all the circumstances, we cannot conclude
that, at the time the conduct at issue in this case oc-
curred, union charging parties had settled expectations
that state court lawsuits to enjoin protected trespassory
activities would be found to be unfair labor practices
from their inception and would call for make-whole
remedies extending throughout the pendency of the
suit. Neither can we conclude that employer/property
owners have settled expectations that they could pros-
ecute such lawsuits with impunity. There is, therefore,
nothing manifestly unjust in applying to the parties rul-
ings which, for the reasons set out at length in this
opinion, accomplish the purposes of our statute with
due accommodation for landowners’ rights of access to
state legal forums.
CONCLUSION OF LAW
By demanding that the Union refrain from area
standards picketing and handbilling protected by Sec-
tion 7 of the Act near the entrances and exits to
Makro’s store, and by their pursuit of their state court
lawsuit, which sought to enjoin this peaceful protected
activity, after the General Counsel on March 30, 1989,
issued a complaint, the Respondents have violated Sec-
tion 8(a)(1) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist including ceasing and desisting from
prosecuting its state court lawsuit and from giving ef-
fect to the state court injunction limiting the Union’s
access to the Respondents’ property for picketing.59
We shall further order the Respondents to take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act. Specifically, we shall order the Re-
spondents to seek to have the injunction obtained
against the Union’s picketing and handbilling with-
drawn. In addition, in order to place the Union in the
position it would have been in absent the Respondents’
unlawful conduct, we shall order them to make the
Union whole for all legal expenses, plus interest as
computed in New Horizons for the Retarded,60 in-
curred in the defense of the Respondents’ lawsuit, in-
673LOEHMANN’S PLAZA
61 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 See, e.g., Hudson v. Palmer, 468 U.S. 517, 523 (1984); Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983); California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).
See generally In re Primus, 436 U.S. 412 (1978).
2 Bill Johnson’s Restaurants, supra.
3 There is a strong argument for holding that a trespass lawsuit
such as that of the Respondents should not be preempted unless and
until the Board issues a decision finding exclusion of the picketers
or handbillers to violate the Act. See Riesbeck Food Markets v. Food
& Commercial Workers Local 23, 404 S.E.2d 404, 412–415 (W.Va.
Continued
cluding appeals, after the March 30, 1989 issuance of
the complaint in this proceeding.
ORDER
The National Labor Relations Board orders that Re-
spondent Makro, Inc., Willoughby, Ohio, its officers,
agents, successors, and assigns, and Respondent Ren-
aissance Properties Co., d/b/a Loehmann’s Plaza,
Beachwood, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Demanding that representatives of United Food
and Commercial Workers Union Local No. 880, AFL–
CIO–CLC stop engaging in peaceful area standards
picketing and handbilling protected by the Act in front
of the entrances and exits of the Makro store in
Loehmann’s Plaza Shopping Center, Willoughby,
Ohio.
(b) Prosecuting its state court lawsuit styled as
Makro, Inc., Loehmann’s Plaza v. United Food &
Commercial Workers Union Local 880, Case No. 88–
L–13–190 (Court of Appeals, Eleventh District, Lake
County, Ohio), giving effect to the permanent injunc-
tion granted by the Court of Common Pleas, Lake
County, Ohio, on September 16, 1988, as affirmed by
the Ohio Court of Appeals on December 26, 1989, or,
after any complaint issues alleging interference with
peaceful protected picketing or handbilling, filing or
maintaining a lawsuit seeking to enjoin such protected
activity.
(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) Seek to have the permanent injunction, described
above, obtained against the Union’s peaceful picketing
and handbilling withdrawn.
(b) Reimburse the Union for all legal expenses, as
provided in the remedy section of this decision, it has
incurred after the March 30, 1989 issuance of the com-
plaint in the instant proceeding in the defense of the
Respondents’ lawsuit to enjoin the Union’s peaceful
picketing and handbilling.
(c) Post at the Makro store in Loehmann’s Plaza
Shopping Center copies of the attached notices marked
‘‘Appendix A’’ and ‘‘Appendix B.’’61 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by each Respondent’s au-
thorized representative, shall be posted by each Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by each Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondents have taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges unfair labor practices not
found herein.
MEMBER DEVANEY, concurring in part, dissenting in
part.
I agree with my colleagues that the Respondents
violated Section 8(a)(1) of the Act by demanding that
the Union remove its picketers from the area near the
entrances to Makro’s store. I further agree that, be-
cause the Respondents did not file or pursue their state
court trespass lawsuit against the Union for a retalia-
tory motive, the lawsuit prior to the General Counsel’s
issuance of the complaint against the Respondents did
not violate Section 8(a)(1). Contrary to my colleagues,
however, I would find that, absent retaliatory motive
and given a reasonable basis for filing the suit, the Re-
spondents did not violate Section 8(a)(1) in maintain-
ing the lawsuit even after the General Counsel issued
his complaint.
The right of parties to file lawsuits is a paramount
constitutional value which has been emphasized regu-
larly by the Supreme Court1 Because of the importance
the American system of justice places on the rights of
parties to seek vindication of their legal claims in
court, a lawsuit should not, in my view, be held to vio-
late Section 8(a)(1) of the Act because it potentially
interferes with Section 7 rights. Rather, the Board must
balance competing policy interests. Before finding that
a lawsuit violates Section 8(a)(1), the Board should ex-
amine whether the lawsuit was filed or maintained for
a retaliatory purpose and whether it had a reasonable
basis. The Supreme Court in Bill Johnson’s Res-
taurants,2 required application of these criteria to law-
suits other than ones that are preempted or have an il-
legal objective. I would similarly apply these criteria
to lawsuits, like that filed by the Respondents, that are
potentially preempted by the General Counsel’s
issuance of a complaint.3
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
S.Ct. 1991) (Justice Neely, dissenting). Among the most compelling
reasons for such a holding is the fact that, if the Board ultimately
finds the employer’s efforts to exclude picketers or handbillers do
not violate the Act, the Board is unable to offer the employer any
remedy. The employer may obtain relief only from the state court,
as trespass itself does not violate the Act. See Sears, Roebuck & Co.
v. Carpenters, 436 U.S. 180, 212–214 (1978) (Justice Powell, con-
curring). One of the underlying rationales of the dissenting opinion
in Riesbeck was criticism of the Board’s ‘‘glacial’’ pace of decision-
making. This critique is yesterday’s news and is no longer accurate.
The current Board, appointed by President Bush, has reduced the
pending caseload at the NLRB so that statistically the Board today
is in the best case decision position it has been in since 1970. The
Board intends to do even better. We expect to have no case pending
in Washington for more than 1 year by the early part of calendar
year 1992. On an interim basis, I believe that it is appropriate to
begin to limit the jurisdictional ‘‘no man’s land’’ that currently ex-
ists. Therefore, I join my colleagues’ conclusion that preemption oc-
curs when the General Counsel, acting in his capacity as the Presi-
dentially-appointed, Senate-confirmed prosecutor of the statute,
issues a complaint against an employer based on his independent in-
vestigation.
4 Cf. H. W. Barss Co., 296 NLRB 1286 (1989) (lawsuit seeking
large damage amount found to have retaliatory motive); Phoenix
Newspapers, 294 NLRB 47 (1989) (lawsuit seeking large punitive
damage amount found to have retaliatory motive); American Pacific
Concrete Pipe Co., 292 NLRB 1261 (1989) (same).
5 Cf. Bill Johnson’s Restaurants, 290 NLRB 29 (1988) (retaliatory
motive for lawsuit found where employer made threats of reprisal).
6 291 NLRB 11, 14 (1988).
The policy reasons for affording special protection
to a party’s adjudicatory rights do not end when the
General Counsel issues a complaint alleging that the
conduct that is the subject of the suit is protected by
the Act. Although the General Counsel has a right to
pursue before the Board his claim that a party’s con-
duct constitutes an unfair labor practice, the party also
has a right to pursue before a state court its claim that
its rights granted by state law have been violated. In
my view, the General Counsel’s issuance of a com-
plaint does not bar pursuance of a reasonably based,
nonretaliatory lawsuit. Although the General Counsel
ultimately may prove that the party violated the Act,
it is also possible that the General Counsel’s complaint
will be dismissed and the party’s state court claim will
be found meritorious.
Attempts to vindicate legal claims in different fo-
rums are a hallmark of our judicial system and a par-
ty’s constitutional right to seek vindication of its legal
claims in court should continue to receive the same
protection that was afforded it before the General
Counsel’s complaint issued.
In this case, the Respondents’ filing and pursuit of
their trespass lawsuit against the Union, both before
and after the General Counsel issued a complaint
against the Respondents for demanding the picketers’
removal from the Respondents’ property, were not re-
taliatory. The Respondents’ trespass lawsuit against the
Union sought injunctive relief. No compensatory or
punitive damages were requested4 Nor did the Re-
spondents make any threats of reprisal against the
picketers or the Union for engaging in the picketing5
Thus, there is no evidence that the Respondents’ mo-
tive for filing and pursuing their lawsuit was anything
other than a desire to have their property right claims
adjudicated under state law. In these circumstances,
there is no showing that the Respondents’ motive for
filing or pursuing their lawsuit was to retaliate against
the Union’s and picketers’ exercise of Section 7 rights.
I also believe that Respondents’ filing and pursuit of
their trespass lawsuit had a reasonable basis. The pick-
eters were on the Respondents’ property and refused
the Respondents’ request to depart. Additionally,
whether the picketers possessed a privilege under the
Act to be present on the Respondents’ property was
less than certain. As the Board emphasized in Jean
Country, ‘‘In the final analysis . . . there is no simple
formula that will immediately determine the result in
every [access] case.’’6
Because the record does not prove that Respondents’
lawsuit was filed for a retaliatory reason or lacked a
reasonable basis, I dissent from my colleagues’ conclu-
sion that the Respondents’ pursuit of their lawsuit after
issuance of the General Counsel’s complaint violated
Section 8(a)(1) of the Act. In my view, the Supreme
Court has told the Board that it needs to grant ample
leeway to parties who seek to simultaneously vindicate
their legal claims in courts of law and before this
Board.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT demand that representatives of United
Food and Commercial Workers Union Local No. 880,
AFL–CIO–CLC stop engaging in peaceful area stand-
ards picketing and handbilling protected by the Act in
front of the entrances and exits of the Makro store in
Loehmann’s Plaza Shopping Center, Willoughby,
Ohio.
675LOEHMANN’S PLAZA
WE WILL NOT prosecute our state court lawsuit
styled as Makro, Inc., Loehmann’s Plaza v. United
Food & Commercial Workers Union Local 880, Case
No. 88–L–13–190 (Court of Appeals, Eleventh Dis-
trict, Lake County, Ohio), give effect to the permanent
injunction granted by the Court of Common Pleas,
Lake County, Ohio, on September 16, 1988, as af-
firmed by the Ohio Court of Appeals on December 26,
1989, or, after any complaint issues alleging inter-
ference with peaceful protected picketing or
handbilling, file or maintain a lawsuit which seeks to
enjoin such protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL seek to have the permanent injunction
against the Union’s peaceful picketing and handbilling,
as granted by the Court of Common Pleas, Lake Coun-
ty, Ohio, and affirmed by the Ohio Court of Appeals,
withdrawn.
WE WILL reimburse the Union for all legal expenses
incurred after the March 30, 1989 issuance of the com-
plaint in the instant proceeding in the defense of our
lawsuit to enjoin the Union’s peaceful picketing, in-
cluding the appeals, plus interest.
MAKRO, INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT demand that representatives of United
Food and Commercial Workers Union Local No. 880,
AFL–CIO–CLC stop engaging in peaceful area stand-
ards picketing protected by the Act in front of the en-
trances and exits of the Makro store in Loehmann’s
Plaza Shopping Center, Willoughby, Ohio.
WE WILL NOT prosecute our state court lawsuit
styled as Makro, Inc., Loehmann’s PLaza v. United
Food & Commercial Workers Union Local 880, Case
No. 88–L–13–190 (Court of Appeals, Eleventh Dis-
trict, Lake County, Ohio), give effect to the permanent
injunction granted by the Court of Common Pleas,
Lake County, Ohio, on September 16, 1988, as af-
firmed by the Ohio Court of Appeals on December 26,
1989, or, after any complaint issues alleging inter-
ference with peaceful protected picketing or
handbilling, file or maintain a lawsuit seeking to enjoin
such protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL seek to have the permanent injunction
against the Union’s peaceful picketing and handbilling,
as granted by the Court of Common Pleas, Lake Coun-
ty, Ohio, and affirmed by the Ohio Court of Appeals,
withdrawn.
WE WILL reimburse the Union for all legal expenses
incurred after the March 30, 1989 issuance of the com-
plaint in the instant proceeding in the defense of our
lawsuit to enjoin the Union’s peaceful picketing, in-
cluding the appeals, plus interest.
RENAISSANCE PROPERTIES CO., D/B/A
LOEHMANN’S PLAZA
APPENDIX C
[Addressed to Clerk of Court]
[State Court Case Name and Number]
[Board Case Name and Number]
Dearlll:
I am writing to you as Regional Director of the Na-
tional Labor Relations Board (Board). On [date], I
issued an unfair labor practice complaint in [Case
Name and No.] alleging that the [Name of Respond-
ent] is violating Section 8(a)(1) of the National Labor
Relations Act by unlawfully interfering with union
picketing or handbilling on its premises.
As a result of the issuance of the complaint, state
court jurisdiction is preempted until such time as the
Board holds the picketing or handbilling to be unpro-
tected under the Act. See Loehmann’s Plaza, 305
NLRB No. 81 (Nov. 21, 1991). Accordingly, the state
court action should be held in abeyance pending the
Board’s decision.
A copy of this letter is being sent to [Name of
Respondent/Plantiff] in the state court matter. This
party may not actively pursue the state court lawsuit
and has seven (7) days to seek a stay of the state court
proceeding. If there is an outstanding injunction, this
party has seven (7) days to seek to have it withdrawn.
If [Name of the Respondent/Plantiff] fails to heed
these instructions, it may be subject to additional li-
ability under Section 8(a)(1) of the Act.
Sincerely,
Regional Director
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Makro had been advised in writing by the Union that it intended
to establish a picket line and distribute handbills to Makro cus-
tomers.
cc: Plantiff and Defendant in the state
court proceeding and their counsel
Parties to the Board proceeding and
their counsel
Paul C. Lund, Esq., for the General Counsel.
Thomas R. Fredericks, Esq., of Covina, California, and
Christopher Kroll, Esq., of Troy, Michigan, for the Re-
spondents.
Patricia Braizel, of Cleveland, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
charge filed by the United Food and Commercial Workers
Union, Local No. 880, AFL–CIO–CLC (the Union), on June
21, 1988, was served by certified mail on Makro, Inc. and
Renaissance Properties Co., d/b/a Loehmann’s Plaza (the Re-
spondents) on June 23, 1988. An amended charge filed on
June 28, 1988, was served by certified mail on the Respond-
ents on June 29, 1988.
A complaint and notice of hearing was issued on March
30, 1989. The complaint alleged that the Respondents inter-
fered with the efforts of the Union to lawfully picket and
handbill at Loehmann’s Plaza in violation of Section 8(a)(1)
of the National Labor Relations Act (the Act).
The Respondents filed timely answers denying that they
had engaged in the unfair labor practices alleged.
The case came on for hearing in Cleveland, Ohio, on July
11 and 12, 1989. Each party was afforded a full opportunity
to be heard, to call, examine, and cross-examine witnesses,
to argue orally on the record, to submit proposed findings of
fact and conclusions, and to file briefs. All briefs have been
carefully considered.
I. THE BUSINESS OF THE RESPONDENTS
Respondent Makro is an Ohio corporation that operates re-
tail stores in Ohio, Maryland, and Pennsylvania, including a
facility located in Loehmann’s Plaza Shopping Center, 27853
Chardon Road, Willoughby Hills, Ohio, the only location in-
volved in this proceeding, where it is engaged in the retail
sale of goods. Annually, in the course and conduct of its op-
erations described above, it receives gross revenues in excess
of $500,000 and purchases and receives goods valued in ex-
cess of $50,000 directly from points located outside the State
of Ohio.
At all times material herein, Respondent Renaissance is an
Ohio general partnership, which owns, operates, and rents
various properties including Loehmann’s Plaza, with its prin-
cipal office located at Suite 330, Three Commerce Park
Square, 23200 Chargrin Boulevard, Beachwood, Ohio. Annu-
ally, in the course of its business operations described above,
Respondent Renaissance derives gross revenues in excess of
$100,000, of which in excess of $25,000 is derived from Re-
spondent Makro, whose operations are described above.
Respondent Makro is now, and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent Renaissance is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
First: On May 4, 1988, Respondent Makro engaged in a
ribbon-cutting ceremony at its new supermarket located in
the northeast corner of Loehmann’s Plaza in Willoughby
Hills, Ohio. It was in the process of opening its membership
retail supermarket for customers. Prior to the ceremony the
Union appeared at 7 a.m., positioning two pickets at the
nonfood exit, two at the food exit, and two at the entrance
of the store.1 All pickets were on property controlled by the
Respondents. People were already commencing to gather for
the ribbon-cutting ceremony. Patricia I. Braizel, a union or-
ganizer, and Jison Ponting, a union business agent, were
present.
Pickets walking ‘‘seven or eight feet’’ from the entrance
and exit doors, carried Signs described by Braizel as follows:
The picket signs are red, white and blue in color, and
on the top it says, ‘‘UFCW Local 880,’’ and then it
says, ‘‘Holding the line.’’
And then it says ‘‘Don’t shop.’’ In the middle it’s
got like a ‘‘Ghostbuster’’ symbol with a Makro, and
then it’s got ‘‘Non- union,’’ and below that it says,
‘‘For the American standard of living.’’
General Manager Fike and Attorney Lardakis emerged
from the store. Lardakis told the union representatives that
‘‘he wanted [them] to remove [themselves] from the prem-
ises’’; that it was private property. Ponting refused. Shortly
thereafter Willoughby Hills police officers arrived. Ponting
informed the police officers that the Union was
‘‘informationally picketing.’’ After a conference with Fike
and Lardakis, the police asked the pickets ‘‘if [they] would
move.’’ Ponting answered, ‘‘No,’’ whereupon the police
asked if the pickets would remove themselves from the door-
way areas during the ribbon-cutting ceremony. The Union
acquiesced but returned to the entrance and exits as soon as
the ceremony was completed. The pickets continued to picket
and handbill at Makro’s entrance and exits on Makro prop-
erty, between the vestibules, until they were restrained by a
temporary order of the Court of Common Pleas, Lake Coun-
ty, Ohio, on June 29, 1988. Thereafter on September 16,
1988, the court entered a permanent injunction restraining the
Union ‘‘from placing more than four (4) pickets on picket
duty in front of the plaintiff store, and no more than two (2)
at the entrance to the parking lot at Route 6 [and] that the
pickets shall station themselves in the parking lot south of
the front of the store, and may not approach closer to the
677LOEHMANN’S PLAZA
2 Respondents described Makro as being engaged in the business
of ‘‘operating a warehouse club selling food and non-food items.’’
3 Makro has two types of carts, ‘‘the regular discount grocery store
type cart, and then we have flat carts that are used for large volume
purchases.’’
front of the building than twenty-five (25) feet.’’ The com-
plaint for injunctive relief was filed by Makro and
Loehmann’s Plaza on June 6, 1988. Makro leases its space
from Renaissance Properties Company, the owner of the
plaza.
Second: The Makro storefront faces Loehmann’s Plaza’s
primary parking lot. A vehicle driveway running parallel to
the storefront separates the Makro property from the primary
lot. This shopping center driveway is used by cars entering
and leaving the parking lot and for customers who chose to
pick up purchases at the Makro store.
The storefront has one customer entrance and two cus-
tomer exits, one for food items and the other for nonfood
items.2 The exits are located on each side of the entrance.
Each exit and entrance, which has double doors, is housed
in a separate glass-enclosed vestibule area. The store frontage
is about 500 feet long. Three rows of shopping carts are
parked between the exits and the entrance.3 The carts are
stored there by ‘‘cart associates’’ whose main job is to col-
lect the carts from the parking lots. The carts are lined about
‘‘15 feet outward’’ from the wall of the storefront and ap-
proximately 25 feet from the entrance door. The carts are lo-
cated about 15 feet from the vehicle driveway. The front
wall of the store is about 30 feet from the driveway leaving
15 feet of open space beyond the carts toward the driveway.
This 15-foot open space is used by customers to ‘‘pull their
cars up to load their merchandise into their cars.’’ There is
no raised or curbed sidewalk in front of the Makro store.
Three painted crosswalks transgress the driveway cor-
responding to the store’s exits and entrances. At the end of
these crosswalks are painted traffic islands.
Third: Makro is located in the northeast corner of
Loehmann’s Plaza. Nineteen other smaller establishments oc-
cupy the space to the west situated in an L-shape. On the
south side of the plaza, along Chardon Road (Route 6), are
several other establishments, which are not a part of
Loehmann’s Plaza proper. A large parking lot, composed of
primary and secondary parking areas, centers these establish-
ments. An access driveway runs along the east side of the
primary parking area and intersects with the driveway that
runs in front of the Makro store and Chardon Road (Route
6).
There are three entrances to Loehmann’s Plaza from
Chardon Road (Route 6), which borders the south side of
Loehmann’s Plaza. The closest entrance is approximately
one-fourth mile from the Makro store. Two of these en-
trances, toward the east and west, are equipped with traffic
lights. Burger King and Friendly, located along Chardon
Road and west of the east entrance, are reached by auto-
mobile through the east entrance to the Loehmann’s Plaza
parking lot. The speed on Chardon Road is 35 miles an hour.
Bishop Road (State Route 84) runs north and south and is
parallel to the access drive that runs from Chardon Road
along the parking lot to the Makro store. The speed limit on
Bishop Road is 35 miles an hour. There is an entrance off
Bishop Road from which a driveway leads directly to Makro
and into the Loehmann’s Plaza. This entrance is about 500
feet from the access driveway coming in from Chardon
Road. Located along the driveway leading into Loehmann’s
Plaza from Bishop Road are two establishments, Reni and
Hills. In the same vicinity are Baker’s Square and Pettiti.
There are two entrances and exits to the Reni’s and Hills’
areas.
There is one that is next to the Loehmann’s Plaza
Makro entrance where you can come in and go either
around Reni’s and Hill’s, or you can come in and take
a left and go to the Pettiti’s back then and around the
front of Hill’s and Reni’s also.
And then there’s one at the east of Hill’s and Reni’s,
but to the south of that first one. And that will take you
around through the front of Hill’s and Reni’s.
But you drive through a drive line and then it dumps
you into the access road that takes you into Makro It
takes you into the parking area of the primary and sec-
ondary parking areas.
A grassy berm runs along the access driveway and lines
the primary parking area. Entrance and exit to this parking
area is at the southeast corner near the east entrance at
Chardon Road. In front of the Makro store and due south in
the primary parking area are 8 driving lanes and 15 rows of
cars. Raised islands and five painted hash-marked islands lie
on the south side of the driveway that runs in front of the
Makro store. These islands abut the parking spaces of the
primary parking area. Toward the west, the driveway that
passes in front of the Makro store runs into the secondary
parking lot. The primary parking area occupies the space be-
tween the driveway in front of Makro store and Burger King
on Chardon Road. Burger King and Friendly occupy the
space between the center and east entrances on Chardon
Road.
Fourth: As noted above, the Union commenced in the first
instance to picket and handbill the exits and entrance to the
Makro store. The handbilling and picketing were peaceful
and informatory in character.
It is apparent that the State Common Pleas Court found
that the site chosen by the Union for its otherwise lawful
picketing and handbilling was not a permissible site because
it moved the pickets and handbillers 25 feet away from the
storefront. However, the 25-foot limit placed the pickets and
the handbillers in the middle of the driveway running east
and west along the front of the Makro store. The traffic on
the driveway caused the Union to seek an alternate place to
picket and handbill; it chose the grassy island, and hash-
marked areas about 40 feet from the storefront and adjacent
to the primary parking lot between the driveway and the
parking lot. This area was chosen because it had ‘‘some sem-
blance of safety.’’ The move to this adjacent area occurred
on July 11, 1988.
In issuing the restraining order that moved the pickets 25
feet from the store entrance and exits, the state judge found:
that Defendant, prior to June 29, 1988, trespassed on
the Plaintiff’s property with the intention of physically
injuring and disrupting the Plaintiff’s business. The
Court also finds that the defendant would continue to
do so if a permanent injunction were not granted.
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Court finds that the Defendant has a lesser right
to picket for informational purposes, but it cannot carry
out its objectives by trampling on the Plaintiff’s rights.
The Union had attempted to picket at all the entrances on
Chardon Road. At the east entrance the Union placed pickets
at the Burger King side of the driveway entrance. The man-
ager of Burger King advised the Union that it did not have
permission to picket, thus the Union moved the pickets
across the driveway where there was posted a Golden Circle
and Reni’s sign. The manager of Reni advised the Union that
his customers were complaining about the signs and inquired
which Reni was being picketed. (Reni is organized by the
Union.) The Union ceased picketing at this place. The pick-
eting was not particularly effective here in any event for
‘‘you cannot read the wording on the sign approaching either
of those exits on that driveway or that State Route 6.’’
The Union moved to the center of Chardon Road where
it picketed and passed out handbills. Here ‘‘no one . . . took
a handbill.’’ Later when the Union again picketed for its
preparation for the state court injunction one person took a
handbill. The difficulty in handbilling here was due to the
speed of the automobiles, the fact that automobile windows
were closed and the pickets were on the opposite side from
the driver. Chardon is a ‘‘very busy road.’’
The entrance on the west is the ‘‘least entered.’’ These en-
trances afforded slight chance of personal contact between
the pickets and customers or potential customers to whom
the Union sought to convey that Makro was nonunion, that
shopping at Makro places ‘‘the jobs and livelihood of our
union membership in jeopardy,’’ and that the Union did not
want persons to trade with Makro.
During the first 2 months in which handbills were passed
out at the exits and entrance of the store, ‘‘approximately
65,000 to 70,000 handbills’’ were distributed. From July 1,
1988, the date handbilling was removed from the entrance
and exits ‘‘another 7,000 or 8,000 handbills’’ were passed
out. During the winter months the Union curtailed its
handbilling because cold and inclement weather made
handbilling difficult; handbills became wet from the snow
and could not be easily handled with mittens and because of
the cold, people did not delay in their paths to and from the
store to take handbills.
According to Braizel, at the grassy areas ‘‘You can’t hand-
bill because people are loading their cars; you can’t handbill
people that are walking from Makro to the Gentry/Revco
area; you can’t handbill people that walk along or within the
25 foot range.’’ The communication, according to Braizel,
with Makro’s customers and potential customers, fell from
around 90 percent to 75 about 15 percent. Almost all persons
took handbills at the entrance and exits.
On July 12, 1988, Braizel’s record disclosed that 384 cus-
tomers passed at such a great distance from the handbillers
that they were unable to give them a handbill and that 85
times handbillers would have been hit by an automobile if
they had not moved. According to handbiller Rosemarie
Marimpietri, one of about five persons took a handbill at the
island. She testified that she passed out ‘‘15 or 20’’ handbills
in an average 5-hour shift.
Handbiller Jean Bober described some of the difficulties
she encountered while handbilling from the hash-marked
areas: oncoming traffic, people who did not cross the 25-foot
line, people loading in the driveway, people having a prob-
lem finding cars, and cold weather. About one out of every
five persons coming out of Makro would come close enough
to be confronted with a handbill. Said Bober, ‘‘We’re just at
a location where it’s hard to get to the people.’’ However,
she testified that, except for the exits and entrance, there is
no better place to handbill.
Makro has prohibited all solicitation or distribution of lit-
erature on its premises by nonemployees. It has a no- solici-
tation sign posted on the doors of the entrance to the store.
The parking areas are open to all persons.
B. Conclusion and Reasons Therefor
The Respondents conceded ‘‘The evidence here establishes
that Makro and Renaissance at all times acted in conjunction
with each other in responding to the trespassing activities of
Local 880.’’ The General Counsel does not contest that the
Respondents had a property right in the areas utilized by the
Union. I so find.
Both parties cite Jean Country, 291 NLRB 11 (1988).
Jean Country teaches that under the credited facts of this
case the Union possesses Section 7 rights and the Respond-
ents enjoyed a property right in the premises. Which right
predominates is a prime consideration in the case.
In the case of Lechmere, Inc., 295 NLRB 92 (1989), the
Board said:
The Board in Jean Country found that the following
factors may be relevant to assessing the weight of a
property right: the use to which the property is put; the
restrictions, if any, that are imposed on public access to
the property; and the property’s relative size and open-
ness. The factors that may be relevant to the consider-
ation of a Section 7 right include: the nature of the
right; the identity of the employer to which the right is
directly related (e.g., the employer with whom a union
has a primary dispute); the relationship of the employer
or other target to the property to which access is
sought; the identity of the audience to which the com-
munications concerning the Section 7 right are directed;
and the manner in which the activity related to that
right is carried out. Finally, factors that may be relevant
to the assessment of alternative means include: the de-
sirability of avoiding the enmeshment of neutrals in
labor disputes; the safety of attempting communications
at alternative public sites; the burden and expense of
nontrespassory communication alternatives; and the ex-
tent to which exclusive use of the nontrespassory alter-
natives would dilute the effectiveness of the message.
The Respondents rely on Tecumsah Foodland, 294 NLRB
486 (1989), a comparable case to the instant case herein. In
such case, ‘‘five persons stood on the covered sidewalk by
the entrance opening, as well as in the entrance area, and
handed out handbills to customers entering and leaving the
store. The handbills advised customers that this was a non-
union store that did not provide union wages and benefits,
and appealed to them toshop at union stores.’’
In the instant case according to Michelle Broda, employ-
ment manager, 12 pickets were stationed ‘‘basically right
outside the door[s]’’ of the exits and entrance ‘‘but they did
wander into that area in front of the carts.’’ According to
679LOEHMANN’S PLAZA
4 If this case had been a matter of first impression, I would have
found for the General Counsel.
Broda’s diagram, the pickets sometimes walked in a path
somewhat like a circle in a space of about 24 feet by 29 feet.
The pickets carried picket signs that informed Makro patrons
that Makro was nonunion, don’t shop. Later handbills were
added elaborating on the same theme.
As in Tecumsah Foodland, Makro did not share its build-
ing with any other tenant. Also its pickup areas were under
its exclusive control and used only by its customers . Patrons
were required to be club members to enter Makro’s store. As
in Tecumsah Foodland, solicitations were banned.
As in Tecumsah Foodland, the audience that the Union
sought to reach ‘‘could not reasonably be reached by direct
personal contract, telephone, or mail’’ and ‘‘due to the de-
tailed nature of the Union’s message . . . the information
could not be fully contained on a picket sign.’’
As found in the Tecumsah Foodland (294 NLRB 486)
case, ‘‘a proper balancing of the parties’ rights here would
permit the Union to distribute its handbills in some manner
and at some place on the Respondent’s property.’’
As in the Tecumsah Foodland case the manner in which
the Union sought to exercise its Section 7 right by congre-
gating around 12 pickets and handbillers in a limited area
near the entrance and exits of the store, where store carts
were parked and customers made pickup of purchased items,
impermissibly impaired Makro’s private property rights.
There was no credible evidence that the Respondent allowed
anyone onto its property other than for the purpose of shop-
ping at the store.
The following language from Tecumsah Foodland, supra,
is apropos:
We find, in agreement with the judge, that the Re-
spondent was not required to surrender access to its
property without limitation to nonemployees whose
numbers and location would tend to impede the access
of patrons to its store. The Respondent had maintained
a substantial private property interest in its commercial
establishment, and the Union could just as effectively
have communicated its message to customers by locat-
ing one or two pickets to distribute handbills near the
store’s doors, or perhaps by having the handbills dis-
tributed at some other location on the property. There-
fore, because we find that the manner in which the
Union exercised its Section 7 right impermissibly inter-
fered with the Respondent’s private property right to
have its store’s entrance be free and uncongested, and
because the Union could effectively communicate its
message to the Respondent’s customers in a less phys-
ically obtrusive way, we conclude that the Respondent
did not violate Section 8(a)(1) of the Act by ordering
the Union’s pickets and handbillers to leave the areas
near the store’s entrance and in the middle of its drive-
ways.
One picket at each exit and entrance would have been suf-
ficient to have publicized the Union’s message and would
have caused no congestion or impairment of the Respond-
ent’s property rights.
Since the instant case, in essence, is indistinguishable from
Tecumsah Foodland, I recommend a dismissal of the com-
plaint.4
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]