Loehmann's Plaza

National Labor Relations Board - Board Decisions

Jan 25, 1995

316 N.L.R.B. 109 (N.L.R.B. 1995)

109
316 NLRB No. 24
LOEHMANN’S PLAZA
1 Loehmann’s Plaza I, 305 NLRB 663 (1991).
2 By letter dated May 15, 1992, the Board notified the parties in
this proceeding that it was reconsidering its decision in this proceed-
ing and that statements of position could be filed regarding the
issues raised by the reconsideration.
On July 17, 1992, the General Counsel filed a statement of posi-
tion. On July 20, 1992, the Respondents and the Charging Party
Union each filed a statement of position. On August 17, 1992, the
American Federation of Labor and Congress of Industrial Organiza-
tions filed an amicus curiae brief in support of the Charging Party
Union, and on September 21, 1992, the National Retail Federation
filed an amicus curiae brief in support of the Respondents. On De-
cember 7, 1992, the Council on Labor Law Equality also filed an
amicus curie brief in support of the Respondents.
3 A brief description of the layout of the shopping center is set
forth below and more fully in the administrative law judge’s deci-
sion.
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
January 25, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
This proceeding raises 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 demands that the Union move its pick-
ets and handbillers; and (2) filing and pursuing a law-
suit seeking injunctive relief in state court about the
number and location of the pickets and handbillers.
Applying the analysis of nonemployee access issues
set forth in Jean Country, 291 NLRB 11 (1988), the
National Labor Relations Board found that the re-
spondent acted unlawfully in restricting access to re-
spondent’s property. The Board also found that re-
spondent unlawfully maintained a lawsuit for injunc-
tive relief.1 While the case was pending before the
Sixth Circuit, the Supreme Court issued its decision in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), holding
that the Board’s balancing test in Jean Country, supra,
as applied to nonemployee union organizers, was in-
consistent with controlling Court precedent. On Janu-
ary 31, 1992, the Board filed a motion to remand this
case for the Board’s reconsideration in light of
Lechmere, supra. On March 6, the Sixth Circuit, on
consideration of the stipulation of the parties, dis-
missed the petition for review and cross-application for
enforcement.2
The Board has reconsidered its decision and the
record in light of the statements of position and the
briefs of amici curiae and has decided to affirm its ear-
lier decision only to the extent consistent with this
Supplemental Decision and Order. For the reasons
fully set forth in Leslie Homes, 316 NLRB 123 (1995),
we hold that Babcock & Wilcox, 351 U.S. 105 (1956),
as reaffirmed in Lechmere, supra, applies to non-
employee area standard activities. We note that our
colleagues’ dissent largely addresses the analysis of
Lechmere in Leslie Homes, supra, issued together with
this decision. We, accordingly, have restricted our re-
sponse in this decision to those particulars of the dis-
sent specific to this case. Under Babcock and
Lechmere, a nonemployee union organizer cannot ordi-
narily gain access to an employer’s property for the
purpose of organizing the employer’s employees. The
organizer can gain access only in the exceptional cir-
cumstance where the employees are reasonably acces-
sible only through trespassory means. Applying that
approach to the instant case, the General Counsel has
failed to prove that the intended audience of the
Union’s handbilling and picketing, viz, the Respond-
ents’ customers, were reasonably accessible only
through trespassory means. Accordingly, the Union
was not entitled to access. We need not, and do not,
reach the issue of whether access would be required if
the customer targets of the handbilling and picketing
were reasonably accessible only through trespassory
means. In view of our findings on the access issue, we
find that the Respondents were privileged to demand
that the pickets change locations, and we find that the
Respondents did not unlawfully maintain a lawsuit
against the Union.
I. THE ACCESS ISSUE
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 store property
from Renaissance.
The Makro store is situated in the northeast corner
of Loehmann’s Plaza and is the largest store in the
shopping center.3 There are four entrances to the shop-
ping center: three off Chardon Road (Route 6) the
southern boundary of the shopping center, and one off
Bishop Road (Route 84), a road that runs parallel to
a service road that runs along the eastern boundary of
the shopping center. (The entrance from Bishop is
through the use of a driveway running from Bishop
Road next to another shopping area and ending at an
entrance on the east side of the shopping center.)
There are 19 smaller establishments that occupy an
L-shape to the west of Makro. On the south side of the
plaza, which is bounded by Chardon Road, there are
other establishments (Burger King and Friendly) that
are not part of Loehmann’s Plaza. A large parking lot,
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On December 26, 1989, the Ohio Court of Appeals affirmed the
judgment of the trial court.
composed of primary and secondary parking areas,
faces the 20 Loehmann’s Plaza stores. The primary
(but smaller) parking area faces Makro. The larger sec-
ondary parking area faces the other 19 stores. The
driveway in front of Makro leads into it. The service
road that runs along the eastern side boundary of the
plaza is next to the primary parking area and connects
Chardon Road with the driveway in front of Makro.
Of the three entrances to the Plaza from Chardon
Road, the closest is approximately .25 mile from
Makro, directly south of Makro’s eastern side, and pro-
vides access to Burger King and Friendly. This en-
trance and the western most entrance which is approxi-
mately .4 mile from Makro, both have traffic lights. A
center entrance on Chardon Road approximately .3
mile from Makro does not. The speed limit on
Chardon Road is 35 miles per hour.
Parallel to the service road connecting Chardon
Road to the driveway in front of Makro is Bishop
Road, running north and south. This road has a speed
limit of 35 miles per hour. As noted above, there is
a driveway off Bishop Road, located directly east of
Makro, which leads to Makro and Loehmann’s Plaza.
Bishop Road is about 530 feet from Makro. Two
stores, Reni and Hills (formerly Golden Circle), are lo-
cated on the driveway between the Bishop Road en-
trance and Makro.
On May 4, 1988, Makro opened its new 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 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 store
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.
According to the undisputed testimony of union or-
ganizer, Patricia Baizel, the handbillers and picketers
at Loehmann’s Plaza were either (1) representatives of
the Union; (2) ‘‘volunteer pickets from our stores,’’
i.e., union members who worked at other stores but not
at Makro; and (3) paid pickets who were ‘‘family
friends of members or ourselves or high school stu-
dents, or unemployed people in the neighborhood.’’
Makro’s general manager, Fike, and Attorney
Lardakis told the union representatives to move the
pickets ‘‘from the premises’’ because it was private
property. In the state court proceedings, the parties
stipulated that both Respondents ‘‘asked Local 800
representatives to leave the doorways and to stand at
designated areas at the parking lot entrances (on Makro
property) on May 4, 1988, and on several occasions
thereafter. Union Organizer Baizel also testified that on
May 4, the Makro officials directed the union pickets
to move ‘‘to the grassy knolled area’’ which she un-
derstood was part of the Loehmann’s Plaza/Makro
property. The three entrances to the shopping center
off Chardon Road have grassy areas next to them. 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 property.
Stark told the pickets to go to the center and western
entrances off Chardon Road. The Makro officials told
the Union to place its pickets at the two entrances
closest to Makro. (The closest entrances were the east-
ern and center entrances off Chardon Road.) The
Union again refused. The Respondents filed for injunc-
tive relief in state court on June 6, 1988.
The Union continued the picketing and handbilling
until restrained by a temporary order of the Court of
Common Pleas, Lake County, Ohio, on June 29, 1988.
This order limited 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.
In their state court complaint, the Respondents
sought, inter alia, to enjoin the Union from ‘‘picketing
with more than two (2) individuals at the two (2) en-
trances to or exits from Loehmann’s Plaza parking lot
located closest to the Makro store.’’ On September 16,
1988, the court entered a permanent injunction.4 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 station
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 traffic islands in front of Makro. The Union
usually used the unpaved traffic island directly in front
of the entrance of the store, although it would occa-
sionally use the other islands.
In addition, the Union attempted to picket at all the
entrances on Chardon Road. Even prior to the injunc-
tion, when the Union had extra pickets, it placed them
at the eastern and center entrances. After the injunc-
tion, it continued to place pickets at the east entrance
of Chardon Road, on the Burger King side of the
111LOEHMANN’S PLAZA
5 This was the only Chardon Road entrance at which the Union
tried to handbill.
6 In a later attempt to handbill in preparation for the state court
hearing, one person took a handbill.
7 Loehmann’s Plaza I, supra at 668.
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. Reni’s manager
then advised the Union that his customers were com-
plaining about the signs and asked why Reni was
being picketed (as the local Reni was organized by the
Union). The Union stopped picketing there.
The Union also attempted to picket and pass out
handbills from the center entrance off Chardon Road.5
According to Baizel, in a 1-week effort at handbilling
‘‘no one . . . took a handbill.’’6 Baizel further ex-
plained 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 contradiction, Chardon is a ‘‘very
busy road.’’ As for the western most entrance to the
shopping center off Chardon Road, Baizel described it
as the ‘‘least entered.’’
According to the testimony of Baizel, the picketing
at all three locations off Chardon Road was not effec-
tive. As she explained, ‘‘[y]ou cannot read the wording
on the sign approaching 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 be the people that are stopped for the
light.’’
B. Analysis
Applying the balancing test of Jean Country, supra,
between the property right of the Respondents and the
Section 7 rights of the employees, in our underlying
decision, we found that ‘‘the Section 7 right out-
weighed 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.’’7 In Lechmere, supra, the Court held
that Jean Country, supra, impermissibly recast as a
‘‘multi-factor balancing test’’ the general rule of Bab-
cock & Wilcox, supra, permitting an employer to pro-
hibit nonemployee distribution of union organizational
literature on its property. Id., 502 U.S. at 537. Bab-
cock’s holding as reaffirmed in Lechmere is that Sec-
tion 7 does not protect the trespassory activities of
nonemployee union organizers except in the rare case
where ‘‘the inaccessibility of employees makes inef-
fective the reasonable attempts by nonemployees to
communicate with them through the usual channels.’’
Id. Thus, ‘‘it is only where such access is infeasible
that it becomes necessary and proper to take the ac-
commodation inquiry to a second level, balancing the
employees’ and employers’ right.’’ Id. at 538. (Empha-
sis in original.)
C. Contentions of the Parties
The Respondents and amici National Retail Federa-
tion and Council on Labor Law Equality contend that
the Court’s interpretation in Lechmere of Babcock ap-
plies to nonemployees who are seeking access to the
Respondents’ private property to engage in area stand-
ards handbilling. They contend that the General Coun-
sel has failed to prove a lack of reasonable alternative
means.
The General Counsel now moves for the dismissal
of the allegations in the complaint. He contends that,
applying the standard of Lechmere, the union rep-
resentatives here did not have the right to picket or
handbill the Respondents’ property because the Union
had reasonable alternative means to communicate its
message.
The Charging Party Union and amicus AFL–CIO
argue that the Babcock/Lechmere analysis involved or-
ganizational activity and should not apply to protected
area standards activity. They contend that more liberal
access principles should govern where, as here, a union
is acting on behalf of employees whom it already rep-
resents. Along this same line, the Charging Party fur-
ther argues that Lechmere is inapposite because this
case involves informational picketing advising consum-
ers that Respondent Makro is nonunion and urging a
consumer boycott. Thus, the Charging Party argues
that this picketing is explicitly authorized under the
publicity proviso of Section 8(b)(7)(C). Further, the
Charging Party and amicus AFL–CIO argue, even if
the Babcock/Lechmere analysis does apply, the Re-
spondent violated the Act because the Charging Party
Union had no reasonable alternatives to communicat-
ing with the Respondent’s customers at the Respondent
Makro’s storefront entrances.
The Charging Party further contends that Lechmere
does not apply to the present case because, unlike in
that case, neither Respondent maintains a sufficient
property interest in the property involved to maintain
a trespass action. The Charging Party also now re-
quests the Board to remand the case to the judge to
take additional evidence on the issue of disparate treat-
ment.
D. Discussion
In Leslie, supra, the Board considered the impact of
Lechmere on nonemployee area standards activity.
After reviewing Lechmere and related Court prece-
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Hudgens v. NLRB, 424 U.S. 507, 522 (1976); Sears, Roebuck &
Co. v. San Diego Co. District Council of Carpenters, 426 U.S. 180,
206 (1978).
9 As in Leslie, we assume, without deciding, that the Lechmere
analysis affords the possibility of an exception permitting access to
private property for area standards activity if a union can prove that
an employer’s customers are not reasonably accessible by
nontrespassory methods. Compare Sears, supra at 206 (‘‘Even on the
assumption that picketing to enforce area standards is entitled to the
same deference in the Babcock accommodation analysis as organiza-
tional solicitation, it would be unprotected in most instances.’’) but
cf. John Ascuaga’s Nugget, Inc. v. NLRB, 968 F.2d 991, 998, (9th
Cir. 1992) (inaccessibility exception to the rule that an employer
need not accommodate nonemployee organizers does not apply to at-
tempts to communicate with the general public).
For a complete discussion of Member Cohen’s position on the ap-
plication of Lechmere to area standards activity, see Leslie Homes,
supra at fn. 18.
10 There is no contention here that picketing at these locations
would violate Sec. 8(b)(4)(B).
dent,8 the Board concluded that the Court intended the
Babcock analysis to apply in nonorganizational set-
tings. Accordingly, the general rule is that an employer
may prohibit nonemployee union agents from gaining
access to its private property to engage in area stand-
ard activities, even where those union activities are on
behalf of represented employees.
We now turn to the question of whether the Union
has proven that it had no reasonable alternative means
of communicating with Makro’s customers.9 In
Lechmere, the Court stated that the Babcock exception
requiring access to private property by nonemployee
organizers applied only in rare situations where a
union confronts ‘‘unique obstacles’’ to nontrespassory
communications, as when the location of a plant and
the living quarters of employees ‘‘isolated [them] from
the ordinary flow of information that characterizes our
society.’’ Id., 502 U.S. at 540. The Court emphasized
that the union’s burden of proving the exception is a
heavy one, which cannot be satisfied ‘‘by mere conjec-
ture or the expression of doubts concerning the effec-
tiveness of nontrespassory means of communication.’’
Id. at 540.
Picketing and Handbilling
In our initial consideration of this case, we took into
account the relative strength of the Section 7 rights and
property rights, as well as the question of accessibility
of the customers through nontrespassory means. On re-
consideration in light of Lechmere, we ask whether the
facts here present the rare situation when a union can
reach its intended audience only through trespassory
means.
Applying this Lechmere test, we reverse our earlier
finding and conclude that the General Counsel has
failed to prove that the Union was unable to commu-
nicate with Respondent Makro’s customers at the loca-
tions where the Respondents permitted the Union to
picket10 and handbill.
On May 4, 1988, when the handbilling and picket-
ing commenced at the entrances and exits of Respond-
ent Makro’s store, Makro’s officials told the Union to
move the pickets ‘‘from the premises’’ because it was
‘‘private property.’’ However, as noted above, the Re-
spondents and the Charging Party stipulated in the
state court proceedings that on May 4 both Respond-
ents requested the Union to move its pickets to the
parking lot entrances, which are on private property.
On May 25, these same Respondent Makro officers
and the Respondent Renaissance’s general partner,
Robert Stark, repeated the request that the Union move
its pickets. Stark told the pickets to go to the center
and western entrances off Chardon Road. The Makro
officials told the Union to place its pickets at the two
entrances closest to Makro. Although these Makro offi-
cials did not clarify what specific entrances they had
in mind, the record reflects that the eastern and center
entrances off Chardon Road are the two entrances clos-
est to Makro. In their state court complaint, the Re-
spondents sought to enjoin picketing ‘‘with more than
two (2) individuals at the two (2) entrances to or exits
from the Loehmann’s Plaza parking lot located closest
to the Makro store.’’
As noted above, Respondent Makro requested that
the pickets be located at the two entrances to the shop-
ping center closest to Makro. In addition, since Stark
mentioned the western entrance off Chardon Road, the
Union picketed at all three entrances off Chardon Road
without specific objection by the Respondents. It also
handbilled from the center entrance off Chardon Road.
It did not attempt to picket from the entrance to the
shopping center off Bishop Road, Route 84. There is
no evidence that the Respondents would have objected
to the presence of pickets at the Bishop Road location.
The traditional factors to consider in determining
whether there is a reasonable alternative to the Union’s
choice of picketing and handbilling are effectiveness,
safety, and enmeshment of neutrals. Addressing first
the effectiveness of picketing, we note that prior to the
injunction, the Union placed pickets at the eastern and
center entrances off Chardon Road. Thus, even in the
Union’s view, picketing from these entrances was per-
ceived as having at least some effectiveness.
The Union picketed from both sides of the eastern
entrance off Chardon Road. This entrance has a stop
light. Concededly, according to Baizel, ‘‘You cannot
read [the picket signs] 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.’’ However, the asserted fact that
all people would not be able to read the picket sign
is not dispositive. In Lechmere, 502 U.S. at 539, the
Court explained that the broad proscription on trespass
by nonemployee union agents will apply, even if
113LOEHMANN’S PLAZA
11 In Red Food Stores, 296 NLRB 450, 453 (1989), the Board
found a similar area standards message essentially was a request not
to patronize, which was readily conveyed by pickets.
12 We deny the Charging Party’s request to reopen the record. Nei-
ther the General Counsel nor the Charging Party Union in the under-
lying proceeding contended that the Respondents discriminatorily
prohibited the Charging Party Union from handbilling and picketing
at locations where they have allowed other nonunion handbilling or
Continued
nontrespassory communication is ‘‘less-than-ideally ef-
fective.’’
Here, the evidence shows that picketing at the east-
ern entrance off Chardon Road would have alerted at
least some Makro customers, as they stopped at the
light or waited to enter the shopping center. In addi-
tion, even motorists who were not stopped at the light
would have to slow their speed as they turned into the
entrance. Although they may not have been able to
read the entire picket signs as they did so, they would
at least have been aware of the fact that the Union was
picketing Makro. Further, the Union could have made
the writing on the signs larger and could have included
more of its message by using multiple signs. Thus, al-
though perhaps the entire message contained in the
picket sign and handbill could not have been included
on a readable picket sign, the Union could have in-
cluded sufficient information on the sign to alert the
public of the general nature of its dispute with the Re-
spondents.11
The Union also picketed from the center entrance to
the shopping center off Chardon Road, which does not
have a traffic light. We find that the General Counsel
did not show that picketing at this entrance would not
be effective. Concededly, there is no stop light at this
entrance. However, as discussed above, motorists
would slow their speed and would be able to discern
that the Union was picketing Makro and would be able
to glean at least the gist of the message.
The Union notes that the pickets were on the left
side of the entrance. Thus, if there were exiting cars,
the entering motorist would have a blocked view of the
pickets. However, the Union does not explain why, as
with the eastern entrance off Chardon Road, it could
not have picketed from both sides of the entrance.
The dissent contends that picketing at the Chardon
Road entrances to the shopping center would not pro-
vide a reasonable alternative to trespassory activity be-
cause the customers at Makro have less exposure to
the Makro store than the employees in Lechmere have
to their workplace. We see no basis, however, for find-
ing that unless repeated exposure is shown a union
necessarily lacks alternative means for conveying its
message.
Further, we disagree with the dissent’s statement
that ‘‘specific record evidence demonstrates that the
Union’s picketing and handbilling failed to convey the
Union’s message to entering motorists.’’ In our view,
there is insufficient evidence to support that claim.
Neither, in our view, does the record show that the
Union was conveying its message to ‘‘at best, a minus-
cule fraction of its intended audience.’’ The record
does not specify what percentage of the Union’s in-
tended audience the Union would be able to reach by
picketing at the three entrances off of Chardon Road.
However, Chardon Road is a busy road and it is rea-
sonable to assume, in the absence of any evidence to
the contrary, that a high percentage of Makro’s cus-
tomers enter the shopping mall through one of these
three entrances, and, therefore, would have the oppor-
tunity to read the Union’s picket signs.
As for the western most entrance to the shopping
center off Chardon Road, the Union’s representative
described it as the ‘‘least entered.’’ This entrance also
has a stop light. Therefore, the Union’s opportunities
are the same as they were for the eastern entrances.
Although there are fewer customers here, it is a third
entrance and thus the Union could add to the people
reached at the other two locations.
From the above, we conclude that the General
Counsel has failed to prove that picketing at the
Chardon Road entrances to the shopping center would
not have had some effectiveness in the Union’s trans-
mittal of its message to potential customers of Makro.
We also find that the Union has not established that
picketing at the locations at 502 U.S. Lechmere, at
540–541, the Supreme Court found that the union
could safely display signs from a public property
grassy strip adjoining the shopping center’s parking
lot. The grassy strip involved in that case abutted a 4-
lane highway with a 50-mile-per-hour speed limit. The
picketing here is no less safe than it was in Lechmere.
We recognize that the process of handbilling auto-
mobiles, i.e., having motorists lower their windows,
and receive the handbills, presents problems of effec-
tiveness and safety. However, as discussed above, we
believe that a picket sign can alert customers that the
Union has a dispute with Makro and that the nature of
the dispute concerns area standards. If the motorist
wants to learn more about the dispute, so as to make
an informed decision about whether to patronize
Makro, he/she can park the car and walk a short dis-
tance to receive the handbill.
Finally, we find that the picketing could be con-
ducted without enmeshment of neutral employers. We
recognize that neutral employers at the eastern entrance
off Chardon Road complained that their customers
were confused about which store was being picketed.
This problem could be solved if the Union marked its
picket signs more clearly to say that the dispute was
only with Makro. Thus, the picketing could have been
carried out without enmeshing any neutrals.
Based on the above, we conclude that the Union had
a reasonable alternative for conveying its message.12
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picketing. In fact, at the hearing, the General Counsel expressly dis-
claimed any such allegation of discrimination. Nor does the Charg-
ing Party offer to adduce any newly discovered or previously un-
available evidence. NLRB Rules and Regulations Sec. 102.48(d)(1);
see Washington Street Brass & Foundry, 268 NLRB 338 fn. 1
(1983). We note that Lechmere did not alter the settled rule that an
employer’s discriminatory prohibition of picketing and handbilling is
unlawful. Therefore, the Charging Party’s request is untimely.
We similarly reject the Charging Party’s contentions that the com-
plaint allegations should not be dismissed because the Respondents
lack property rights to maintain trespassory claims against the Union.
Lechmere did not change the rule that a property right can be as-
serted only by the party who possesses the right. See Giant Food
Store, 295 NLRB 330, 332 (1989); Polly Drummond Thriftway, 292
NLRB 331 (1989), enfd. mem. 882 F.2d 512 (3d Cir. 1989). Both
the Charging Party and the General Counsel had the opportunity to
raise these contentions in the underlying proceeding and did not do
so. In fact, in its brief in support of its exceptions to the judge’s
decision, the General Counsel noted that the Respondents asserted a
legitimate property interest. By not making these contentions in the
underlying proceeding, the Charging Party has forfeited its oppor-
tunity to assert them now. We further find no merit in the Charging
Party’s contention that the picketing herein was informational picket-
ing protected under the proviso to Sec. 8(b)(7)(C).
13 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.
14 Member Cohen does not pass on the validity of the Bill John-
son’s, supra, aspect of Loehmann’s Plaza I.
1 Loehmann’s Plaza I, 305 NLRB 663 (1991).
Accordingly, we shall dismiss the relevant allegations
of the complaint.
II. THE LAWSUIT ISSUES
The complaint further alleged 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.13
In Loehmann’s Plaza I, 305 NLRB 663, 671 (1991),
we held that the filing 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. We held that:
[A]t the point of preemption, the special require-
ments of Bill Johnson’s [461 U.S. 731 (1983),] do
not apply. Rather 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. [Fn. omitted.]
Accordingly, if the Board in the unfair labor
practice proceeding finds that picketing or
handbilling on the property in question is pro-
tected by Section 7, and if a preempted state court
lawsuit is aimed at enjoining that Section 7 activ-
ity, it is clear that the lawsuit tends to interfere
[with] (indeed, it is designed to stop) the exercise
of a Section 7 right. [Emphasis added. Id.]
Absent a finding that the picketing and handbilling
on private property is protected, a lawsuit to enjoin
that activity is not unlawful. Since we have found
above that the picketing and handbilling on private
property was not protected, we find that the Respond-
ents’ lawsuit to enjoin it was not unlawful. We, there-
fore, reverse our earlier decision and dismiss the alle-
gation that the Respondents violated Section 8(a)(1) by
their pursuit of their lawsuit seeking to enjoin the
Union’s picketing and handbilling after the complaint
in this proceeding issued on March 30, 1989.14
CONCLUSIONS OF LAW
1. The Respondents, Makro, Inc. and Renaissance
Properties Co., d/b/a Loehmann’s Plaza, have not vio-
lated Section 8(a)(1) of the Act by restricting the
Union’s access to their property by making oral de-
mands that the Union move its pickets and handbillers.
2. The Respondents, Makro, Inc. and Renaissance
Properties Co., d/b/a Loehmann’s Plaza, have not vio-
lated Section 8(a)(1) of the Act by filing and pursuing
a lawsuit seeking injunctive relief in state court as to
the number of the pickets and handbillers.
ORDER
The complaint is dismissed.
CHAIRMAN GOULD, concurring.
I join in the dismissal of the complaint in this case.
See my additional comments set forth in my concur-
ring opinion in Leslie Homes, 316 NLRB 123 (1995).
MEMBERS BROWNING AND TRUESDALE, dissenting.
Contrary to the majority, we would reaffirm the
Board’s prior holding that Respondents Makro and
Loehmann’s Plaza violated Section 8(a)(1) of the Act
by demanding that the Union refrain from area stand-
ards picketing and handbilling near the entrances and
exits to Makro’s store.1 In our view, our colleagues err
in extending the access analysis of Lechmere, Inc. v.
NLRB, 502 U.S. 502 U.S. 527 (1992), to the Union’s
area standards picketing and handbilling at issue here
or to Section 7 activity other than organizational activ-
ity.
We believe that Lechmere, supra, does not apply to
this case and that the Board majority has extended the
reach of the Supreme Court’s holding beyond the par-
ticular facts and circumstances the Court confronted, or
intended to confront. Indeed, the Court’s handling of
the statutory issue before it is the most persuasive ar-
gument in favor of a narrower and more carefully
drawn interpretation of its reach than the majority’s
view. Finally, by extending Lechmere’s implications
115LOEHMANN’S PLAZA
2 Id. at 667–668. The Board also found the Union’s area standards
picketing and handbilling to be clearly protected under Sec. 7 of the
Act and the Respondents’ interest in the property not insubstantial.
Id. at 666.
3 502 U.S. at 537, quoting NLRB v. Babcock & Wilcox Co., 351
U.S. at 112 (emphasis in original).
4 112 502 U.S. at 536 (emphasis added).
beyond the factual and legal questions answered by the
Court through its holding and the supporting reasoning,
the majority both departs from longstanding principles
of judicial interpretation and makes new law based en-
tirely on unspoken policy considerations. In our view,
judicial prudence and strong policy considerations at
the very core of employees’ Section 7 rights support
a reading of Lechmere that limits its holding to organi-
zational activity.
In its original opinion in this case, the Board applied
the balancing test set forth in the pre-Lechmere deci-
sion, Jean Country, 291 NLRB 11 (1988), and found
that the Respondents’ demand that the Union cease
picketing and handbilling near Makro’s store violated
Section 8(a)(1). In that first decision, the Board found
that the Union had no reasonable alternative means of
communicating its message,2 reasoning that the
Union’s audience, Makro’s shoppers, was not readily
identifiable and thus could not reasonably be reached
away from Makro by direct personal contact, tele-
phone, or mail. The Board also concluded that there
was no likelihood that a public media campaign would
reach this audience and, therefore, it would not be rea-
sonable to leave the burden and expense of such a
campaign as the Union’s only recourse. The Board fur-
ther held, based on a careful analysis of Makro’s posi-
tion relative to neutral businesses, public property, and
the type of roads bordering Loehmann’s Plaza, that
picketing and handbilling near the shopping center’s
entrances were not reasonable alternatives for the
Union to transmit its message but were ineffective,
were possibly dangerous, and enmeshed neutral em-
ployers. In sum, the Board found that the Union had
no reasonable nontrespassory means for conveying its
information to Makro’s customers.
The majority, applying the standard enunciated in
Lechmere, now concludes that the General Counsel has
failed to prove that the targets of the Union’s informa-
tional activities, Makro shoppers, were reasonably ac-
cessible only if the Union were able to locate its pick-
ets on Loehmann’s Plaza property near the Makro
store itself.
In our view, our colleagues’ conclusion that the
Union had a reasonable alternative for conveying its
message results from their unwarranted extension of
the Court’s analysis in Lechmere to Section 7 activity
other than organizing, such as the area standards pick-
eting and handbilling at issue in this case. This exten-
sion of Lechmere’s principles is unwarranted for sev-
eral reasons. First, in Lechmere, the Supreme Court ex-
plicitly limited its holding to situations involving orga-
nizing by nonemployee union representatives, and its
rationale is dependent on those specific circumstances.
Second, the Lechmere decision also depends on the
legal principle that the rights of nonemployee organiz-
ers are derivative of employee rights protected by Sec-
tion 7. In our view, however, the rights of non-
employee union representatives and union members
who are engaged in other types of protests, are not de-
rivative. When union representatives and members are
protesting and appealing to the public, they are doing
so on behalf of themselves and the employees whom
they are authorized to represent. As such, they are ex-
ercising their own Section 7 rights and those of their
principals, not the rights of unrelated third parties who
have not yet authorized the action. In addition, the Su-
preme Court’s focus in Lechmere was on the right to
organize and join unions. Other types of protests, such
as the area standards protest involved in this case, in-
volve a much different kind of Section 7 right, the
right to engage in concerted activity for mutual aid and
protection. In exercising that right, nonemployee union
organizers and members are clearly exercising rights
that are personal to them, and thus the Court’s empha-
sis on derivative rights is inapposite. Finally, the
Court’s analysis of reasonable alternative means of
communicating with a finite and identifiable group of
employees of a single employer simply does not apply
when the intended audience is much broader and more
geographically diffuse, as is the general public or the
clientele of a particular store like the one involved in
this case.
1. Lechmere presented the question whether an em-
ployer violated Section 8(a)(1) by denying non-
employee union organizers access to property it con-
trolled. The Court majority in Lechmere found that the
right of such organizers to engage in organizational
handbilling in a shopping center parking lot was gov-
erned by NLRB v. Babcock & Wilcox Co., 351 U.S.
105 (1956). The Court described Babcock’s holding as
follows:
Babcock’s teaching is straightforward: § 7 simply
does not protect nonemployee union organizers
except in the rare case where ‘‘the inaccessibility
of employees makes ineffective the reasonable at-
tempts by nonemployees to communicate with
them through the usual channels.’’3
Consequently, the majority held that, ‘‘at least as ap-
plied to nonemployee organizational trespassing,’’4 the
Board’s access analysis set forth in Jean Country,
supra, was erroneous because it did not strictly follow
Babcock’s test.
Lechmere did not explicitly signal whether its hold-
ing applied beyond the organizational sphere. Its lan-
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Id.
6 502 U.S. at 537–541.
7 Id. at 537.
8 Id. (emphasis added).
9 Id. (emphasis in original).
10 Id. 536–537 at 532 Babcock, 351 U.S. at 113.
11 Id. at 536–537.
12 Id. at 533.
13 Strike and picketing activities also receive protection under Sec.
13 of the Act. See NLRB v. Teamsters Local 639 (Curtis Bros.), 362
U.S. 274, 281 fn. 9 (1960).
guage and logic, however, show that its holding is lim-
ited to ‘‘nonemployee organizational trespassing.’’5
Lechmere by its terms addressed the access rights of
nonemployee union organizers—that is, nonemployee
union representatives seeking to persuade unorganized
employees to support their union through personal con-
tact with them at their workplace. The Court is notably
silent as to any other class of union agent and any
other type of representational activities. Lechmere’s
analysis repeatedly refers to ‘‘nonemployee organiz-
ers’’ or ‘‘nonemployee union organizers.’’6 The deci-
sion’s few references simply to ‘‘nonemployees’’ are,
in context, clearly a shorthand for nonemployee orga-
nizers.
More importantly, the Court’s reasoning in
Lechmere unravels if its holding is extended beyond
nonemployee organizational activity. Lechmere’s ra-
tionale is grounded exclusively on the premise that
Section 7 grants employees the right to ‘‘self-organiza-
tion’’ but does not grant nonemployees the right to or-
ganize employees. Lechmere begins its analysis by
quoting what it deems the ‘‘relevant part’’7 of Section
7, the passage stating that ‘‘[e]mployees shall have the
right to self-organization, to form, join, or assist labor
organizations.’’8 The Court concludes from this lan-
guage and 8(a)(1)’s prohibition on interference with
employees’ exercise of Section 7 rights that ‘‘the
NLRA confers rights only on employees, not on unions
or their nonemployee organizers.’’9 The Court rea-
soned further that, while Babcock restricted an employ-
er’s right to exclude nonemployee union organizers
under certain circumstances, Babcock did so not be-
cause the nonemployee organizers possessed a Section
7 right to organize, but because employees’ ‘‘right of
self-organization depends in some measure on [their]
ability . . . to learn the advantages of self-organization
from others.’’10 Finding that Babcock determined the
‘‘clear meaning’’11 of Section 7 with respect to non-
employee organizational trespass, the Court’s majority
opinion stated:
[W]e explained [in Babcock] that the Board had
erred by failing to make the critical distinction be-
tween the organizing activities of employees (to
whom § 7 guarantees the right of self-organiza-
tion) and nonemployees (to whom § 7 applies
only derivatively). Thus, while ‘‘[n]o restriction
may be placed on the employees’ right to discuss
self-organization among themselves, unless the
employer can demonstrate that a restriction is nec-
essary to maintain production or discipline,’’ 351
U.S. at 113 (emphasis added) (citing Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803
(1945)), ‘‘no such obligation is owed non-
employee organizers,’’ 351 U.S. at 113.12
Therefore, Lechmere’s conclusion that the access rights
of the nonemployee union organizers there were con-
trolled by the stringent Babcock standard is based sole-
ly on Lechmere’s explicit holding that the Section 7
right of employees to self-organization does not apply
directly to nonemployees.
2. When nonemployee union representatives enter an
employer’s property to engage in Section 7 activities
other than organization, however, Lechmere’s reason-
ing, which limited itself to the self-organizing guaran-
tee of Section 7, does not address their activities. Sec-
tion 7 activities other than organization, such as con-
sumer boycott, area standards activity, or support of
economic or unfair labor practice strikes, are not pro-
tected by the Section 7 guarantee of the right to self-
organization, but by Section 7’s guarantee of a right
not treated in Lechmere—the right of employees ‘‘to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.’’13
Thus, the rights of the nonemployee organizers in
Lechmere were viewed as derivative of the Section 7
rights of the employees they were trying to organize—
employees who had not chosen them as representatives
and who may not even have desired the organizers to
invoke their rights in order to communicate with them.
By contrast, when nonemployee union representatives
engage in typical nonorganizational Section 7 activi-
ties—activities protected under the ‘‘mutual aid and
protection’’ language of Section 7—their rights are not
derivative of those of the audience they are trying to
reach. Indeed, often that audience consists of an em-
ployer’s customers, who have no Section 7 rights.
Rather, the rights of nonemployee union representa-
tives engaged in nonorganizational Section 7 activities
are their own rights or those that arise from their role
as the agents of employees who have already exercised
their Section 7 right to select a labor organization as
their representative. Thus, the Section 7 rights of non-
employee union agents engaged in ‘‘mutual aid and
protection’’ activities stand on a completely different
footing under the statute than those of nonemployee
union organizers.
By engaging in nonorganizational Section 7 activi-
ties, nonemployee union representatives try to gain or
preserve benefits, directly or indirectly, for themselves
117LOEHMANN’S PLAZA
14 Giant Food Markets, 241 NLRB 727, 728 (1979) (emphasis
added, footnote omitted), enf. denied on other grounds 633 F.2d 18
(6th Cir. 1980).
15 Sears, Roebuck & Co. v. San Diego County District Council of
Carpenters, 436 U.S. 180, 206 fn. 42 (1978).
16 437 U.S. at 565 (1978) (footnote omitted).
17 See Gorman, Union Access to Private Property: A Critical As-
sessment of Lechmere, Inc. v. NLRB, 9 Hofstra Lab. L.J. 1, 23
(1991).
We respectfully disagree with Sixth Circuit’s recent statement in
NLRB v. Great Scot, Inc., 39 F.3d 678 (1994), that nonemployee
area standards picketing warrants less protection than nonemployee
organizational activity. As noted above, area standards activity,
whether undertaken by employees or nonemployees, furthers impor-
tant employee interests and is protected by a different portion of Sec.
7 than was considered in Lechmere. See also Giant Food Markets
v. NLRB, 633 F.2d 18, 23 (6th Cir. 1980) (‘‘area standard
picketing[’s] . . . mere lack of longevity should make it no less pro-
tected at this juncture.’’)
18 Giant Food Markets, supra, 241 NLRB at 728. When serving
as organizers, nonemployee union agents also act on behalf of the
employees they represent and should be viewed as directly exercis-
ing their members’ Sec. 7 rights. Further, as employees of the union,
union representatives possess their own Sec. 7 rights. The majority
in Lechmere, however, simply failed to consider either of these bases
for concluding that nonemployee union organizers directly exercise
Sec. 7 rights when trying to communicate their organizational mes-
sage to other employees. See Estlund, Labor, Property, and Sov-
ereignty After Lechmere, 46 Stanford L. Rev. 305, 325–330 (1994).
We cannot accept our colleagues’ suggestion that, in failing to
consider access rights under the ‘‘other concerted activity for the
purpose of collective bargaining or other mutual aid or protection’’
portion of Sec. 7, Lechmere implicitly rejected union agents’ access
under that language in all circumstances. The rights protected by that
language, recognized by the Court in Eastex, supra, are too substan-
tial for the Court to have totally dismissed them in the access con-
text without analysis or even acknowledgment. Had the Court given
consideration to that portion of Sec. 7 in Lechmere, it no doubt
would have so stated. The Lechmere Court’s focus solely on the por-
tion of Sec. 7 granting employees the ‘‘right to self-organization, to
form, join, or assist labor organizations’’ reflected that passage’s ob-
vious relevance, previously recognized in Babcock, supra, as the cor-
nerstone of access rights for the purpose of engaging in organiza-
tional activities. The fact that the Court repeatedly and specifically
limited its analysis and its holding to situations involving access of
nonemployee organizers for the purpose of organizing the employ-
er’s employees supports this conclusion, and puts to rest our col-
leagues’ suggestion that the Court meant to hold, sub silentio, that
‘‘trespassory nonorganizing activity would never be protected.’’
or the employees whom they represent. For example,
the Board has articulated the protected nature of area
standards activity, such as that at issue in this case,
and the source of that protection:
Area standards picketing is engaged in by a
union to protect the employment standards it has
successfully negotiated . . . from the unfair com-
petitive advantage that would be enjoyed by an
employer whose labor cost package was less than
those of employers subjected to the area contract
standards. Failure to protect these standards could
result in an undermining of wage and benefit
gains in such areas. Therefore, in its attempt to
protect the area standards, a union acts not only
in its own interest, but also in the interest of em-
ployees of employers with whom it has negotiated
more beneficial employment standards.14
Indeed, the Supreme Court has recognized that ‘‘the
rationale for protecting area-standards picketing is that
a union has a legitimate interest in protecting the wage
standards of its members who are employed by com-
petitors of the picketed employer.’’15 Thus, area stand-
ards picketing directly supports one of the other em-
ployee rights explicitly enumerated in Section 7: the
right to bargain collectively. The Supreme Court simi-
larly recognized in Eastex, Inc. v. NLRB, 437 U.S. 556
(1978), that the exercise of Section 7 rights legiti-
mately encompasses matters beyond employees’ own
work places. The Court there stated:
Congress knew well enough that labor’s cause
often is advanced on fronts other than collective
bargaining and grievance settlement within the
immediate employment context. It recognized this
fact by choosing, as the language of § 7 makes
clear, to protect concerted activities for the some-
what broader purpose of ‘‘mutual aid or protec-
tion’’ as well as for the narrower purposes of
‘‘self-organization’’ and ‘‘collective bargain-
ing.’’16
When engaging in such Section 7 ‘‘mutual aid or pro-
tection’’ activities as the authorized agents of the em-
ployees they represent, nonemployee union agents
stand in the shoes of those employees as the represent-
atives the employees have chosen to act on their be-
half. Indeed, the very genesis of the NLRA was Con-
gress’ view that industrial stability and labor peace,
which became the Act’s underlying purposes, would be
furthered by enabling employees to have their interests
represented by an agent of their own choosing—usu-
ally a union. A union, of course, can act only through
its agents. Consequently, the nonemployee union
agents’ Section 7 rights to engage in activities for the
mutual aid and protection of employees they represent
are not merely derivative but, rather, constitute the
very rights of the employees they represent.17 As the
Board has recognized, ‘‘Employees have a right to
protect advancements they have made, and their union
as their representative has a right to protect their inter-
ests.’’18
The rights of union members who are involved in
the protests are even more directly implicated. For ex-
ample, in this case, several of the picketers and
handbillers were union members who were com-
pensated for their time by the Union. The record does
not reveal if these union members were employed by
other employers who were competitors of the target
employer, Makro. If they were, then by participating in
the area standards protest, they were acting together
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 424 U.S. at 522, quoting Babcock, 351 U.S. at 112.
20 502 U.S. 534 (emphasis added).
21 As Professor Roger Hartley has observed, ‘‘The result obtained
in Lechmere . . . does not necessarily follow with respect to con-
sumer picketing and handbilling. The legal calculus is quite different
because the communication dynamics are quite different.’’ Hartley,
Foreword: The Supreme Court’s 1991–1992 Labor and Employment
Law Term, 8 Labor Lawyer 739, 742 (1992) (Foreword).
22 Indeed, Professor Hartley articulated the communication dynam-
ics of shopping center consumer picketing as follows:
Potential patrons at one particular store located in a mall are not
a clearly defined group. Hence, they cannot effectively be
reached by means of targeted television, radio, and newspaper
advertising. Nor can a union effectively gain access to this
group of mall patrons by picketing public areas surrounding the
mall: the Board [on remand in Hudgens, 230 NLRB 414
(1977),] listed several reasons, including the reality that ‘‘im-
pulse buying’’ is the dominant consumer model at shopping cen-
ters. Patrons typically enter the mall first and then decide where
to shop. [Foreword, 8 Labor Lawyer at 743.]
These dynamics led Professor Hartley to pose the following ques-
tion:
Absent newly uncovered data on consumer buying habits, what
principled basis is there for the Board and the courts to alter
the previous view that unions may gain access to shopping cen-
ters, and other commercial property, where it is difficult, if not
impossible, to identify in advance the consumers they seek to
reach?
for their own mutual aid and protection, and acting to-
gether to protect their own right to bargain collec-
tively, by protesting the erosion of the standards col-
lectively bargained by the Union. Even if they were
not, as union members, they were acting to protect
these standards in the event that they did become em-
ployed in the industry. Either way, they certainly were
not exercising anyone else’s rights but their own by
engaging in this area standards protest.
While the Supreme Court did not address access
rights to engage in ‘‘concerted activities for collective
bargaining or other mutual aid and protection’’ in
Lechmere, it previously provided an access analysis
encompassing such activities in Hudgens v. NLRB, 424
U.S. 507 (1976). In Hudgens, the Court ordered the
Board to consider the lawfulness of the expulsion of
economic strike picketers from a shopping mall under
the Act, rather than under the First Amendment. In re-
manding, the Court declared that Babcock ‘‘established
the basic objective under the Act: accommodation of
§ 7 rights and private property rights ‘with as little de-
struction of one as is consistent with the maintenance
of the other.’’’19 Hudgens further stated that the
‘‘locus of that accommodation, however, may fall at
differing points along the spectrum depending on the
nature and strength of the respective 7 rights and pri-
vate property rights . . . .’’ Id. Hudgens noted factors
that might be relevant in striking the proper balance:
the type of Section 7 activity undertaken, whether it
was being carried on by employees or ‘‘outsiders,’’
and whether the private property in question was that
of the employer or of a third party. Although invoking
the principle of Babcock, Hudgens notably refrained
from reiterating that access would be warranted only
when a union lacked a reasonable alternative means of
communication.
Lechmere stated that Hudgens did not ‘‘intend[] to
repudiate or modify Babcock’s holding that an em-
ployer need not accommodate nonemployee organizers
unless the employees are otherwise inaccessible.’’20 By
the same token, Lechmere did not purport to overrule
Hudgens. Thus, Lechmere left intact Hudgens’ ‘‘points
along the spectrum’’ analysis regarding nonorga-
nizational access.
3. A further reason for not extending the Lechmere
rationale to nonorganizational activity is that its em-
phasis on the need to show the availability of reason-
able alternative means of communication was ground-
ed, in large measure, on the nature of the audience that
the nonemployee organizers intended to reach in that
case. In holding that the union must show that it lacks
reasonable alternative means of communication before
the Board could even undertake to balance its right to
communicate with employees against the employer’s
property rights, the Court quoted the language of Bab-
cock, which stated that the union must show that ‘‘‘the
location of a plant and the living quarters of the em-
ployees place the employees beyond the reach of rea-
sonable union efforts to communicate with them.’’’
Lechmere, 502 U.S. U.S. at 539, quoting Babcock, 351
U.S. at 113 502 U.S. at 539, 76 S.Ct. at 684 (emphasis
in original). The Court emphasized that ‘‘Babcock’s
exception was crafted precisely to protect the § 7 rights
of those employees who, by virtue of their employ-
ment, are isolated from the ordinary flow of informa-
tion that characterizes our society.’’ Id. at 849. Mani-
festly, therefore, the Court’s analysis is directed to the
availability to nonemployee union organizers of rea-
sonable means to reach employees who are located on
an employer’s premises. This is a finite and easily
identifiable audience, and the considerations that apply
to that audience are much different than those that
apply to the much more diffuse audience that is the
target of other types of union activity, such as con-
sumer boycotts and area standards protests.21
The unique problems associated with an audience
that is not limited to employees of an identifiable em-
ployer are well illustrated by the facts of this case. The
union’s situation in Lechmere could hardly be further
removed from the Union’s aims and circumstances
here. In contrast to the identifiable, discrete, and rel-
atively small audience that the union was trying to
reach in Lechmere, here the Union sought to commu-
nicate with the much larger and more amorphous audi-
ence of potential and actual Makro shoppers, not one
of whom could be identified and approached except
when entering or exiting Makro’s store.22 Because the
119LOEHMANN’S PLAZA
Foreword, 8 Labor Lawyer at 743 (emphasis added); see also Note,
Consumer Picketing after Lechmere, Inc. v. NLRB: The Phenomenon
of ‘‘Impulse Buying,’’ 43 Catholic U. L. Rev. 279, 304–310 (1993).
23 As Professor Hartley has observed, both Lechmere and Babcock
& Wilcox state at some points that whether the nontrespassory means
available to a union to reach the employees is ‘‘reasonable’’ is meas-
ured by the ‘‘effectiveness’’ of the resulting communication, while
elsewhere their wording suggests that a union may not enter an em-
ployer’s property ‘‘other than when employees literally are beyond
the union’s reach due to their isolation from normal contacts.’’ Fore-
word, 8 Labor Lawyer at 759. Professor Hartley concludes, however,
that:
Lechmere . . . did not abandon completely the notion that the
effectiveness of the communication is a relevant consideration
. . . . It speaks in terms of the feasibility of the union gaining
physical access to those it seeks to inform but also makes plain
that access alone is not determinative: the access must be such
that the resulting communication is effective. [Id. at 759–760
(emphasis added).]
In isolating only Lechmere’s passages that suggest solely a phys-
ical proximity test for access, our colleagues articulate an erroneous
and unwarranted standard.
Union did not possess the names and addresses of
Makro’s customers, it could not contact them by mail,
telephone, or home visits. Further, Makro’s customers
undoubtedly shopped at Makro much less frequently
than the employees in Lechmere entered and departed
their employer’s store in Lechmere which was, after
all, their workplace. Thus, Makro’s customers had
much less exposure to the picketing at the shopping
center entrances than did the employees in Lechmere
and, consequently, were less likely to be cognizant of
it. Moreover, in the present case specific record evi-
dence demonstrates that the Union’s picketing and
handbilling at the shopping center failed to convey the
Union’s message to entering motorists. In sum, al-
though the union in Lechmere was able to convey its
message to at least 20 percent of its audience whose
names and addresses the union possessed, in the
present case the Union was able to convey its message
to, at best, a minuscule fraction of its intended audi-
ence.23
In addition to these factors, the alternative of
handbilling or picketing at the entrances to the shop-
ping center was not reasonable, for other reasons that
are directly related to the nature of the audience. The
Union could not reasonably target that audience at
those entrances without also reaching customers of
other stores at the plaza, and thereby enmeshing those
neutral employers in its dispute with Makro. A hand-
bill or picket sign message that is targeted at the em-
ployees of a particular employer does not pose the
same danger of enmeshing neutrals.
In short, both the limited nature of the audience
(confined to shoppers at one particular store), and the
fact that it cannot be readily identified and is geo-
graphically diffuse, make it much more difficult to
reach, without access to the targeted employer’s prop-
erty, than the audience that the Supreme Court ad-
dressed in Lechmere. The Sixth Circuit described these
circumstances well in Giant Food Markets v. NLRB,
633 F.2d 18 (1980):
It may be assumed that, in general, it will be
easier to communicate with a specific, discrete
number of employees by means other than intru-
sion on private property than to communicate
with potential consumers of a large retail store lo-
cated on a major thoroughfare in a metropolitan
area. . . .
If area standards picketing is protected under
section 7 of the NLRA, no matter how long the
protection has existed, area standards pickets must
be allowed a reasonable means of communicating
with the consumers. When the consumers poten-
tially come from a large metropolitan area and
cannot be categorized as a specific group patron-
izing a specific type of store, expensive, extensive
mass media or mailer campaigns should not be re-
quired. If reasonableness is a criterion for deter-
mining whether or not an alternative means of
communication exists, the union should not be
forced to incur exorbitant or even heavy expenses.
A mass media campaign would also diffuse the
effectiveness of the communication by being
physically removed from the actual location of the
store whose policies are at issue and would pre-
vent any personal contact between the union and
the intended audience. [Id. at 24–25.]
It is for these reasons, we would submit, that the
Court’s requirement that a strict inaccessibility test
must be applied in every case where the union seeks
access should be limited to the circumstances to which
the Court limited it in the Lechmere case itself: access
by union organizers to an employer’s property for the
purpose of organizing that employer’s employees.
4. In applying Lechmere to the area standards pick-
eting and handbilling at issue in this case, our col-
leagues rely on Leslie Homes, 316 NLRB 123, issued
today. In Leslie Homes, our colleagues ‘‘discern no
reason to assume’’ that Lechmere’s reasoning applies
only in organizing cases ‘‘given the Court’s concern in
Lechmere with protecting employers’ private property
rights.’’ We believe our colleagues’ approach to
Lechmere’s application errs in two respects. First,
Lechmere is a case that construes rights conferred by
the National Labor Relations Act, as amended, and its
concern with private property rights is peripheral to its
construction of those rights protected by the Act.
Lechmere’s reasoning proceeds from an analysis of
only one of several rights guaranteed by the Act and
of a discrete portion of the Act’s full range, and it con-
siders whether those elements grant certain rights to
nonemployee union organizers. Although the Court in
Lechmere did express some concern for private prop-
erty rights, it was construing Section 7 rights of em-
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Because Hudgens makes plain that access to private property
may be appropriate for activity involving a variety of Sec. 7 rights,
participants, and audiences, our colleagues err in failing to squarely
reject the Ninth Circuit’s suggestion in John Ascauaga’s Nugget,
Inc. v. NLRB, 968 F.2d 991 (9th Cir. 1992), that, after Lechmere,
access to private property can never be granted for the purpose of
communicating with an employer’s customers, regardless of whether
the union lacks any reasonable nontrespassory means of reaching
them.
25 Contrary to our colleagues, we understand, in context,
Lechmere’s statement that Sears laid to rest any question whether
Central Hardware, 407 U.S. 539 (1972), and Hudgens changed Sec.
7 law as simply reiterating Lechmere’s prior statement that those
cases did not ‘‘repudiate or modify Babcock’s holding that an em-
ployer need not accommodate nonemployee organizers unless the
employees are otherwise inaccessible.’’ 502 U.S. at 534. Central
Hardware, like Babcock, concerned nonemployee organizers’ access
to private property and, as noted above, Sears, a preemption case
that concerned access only tangentially, also applied, for the purpose
of discussion, the test applicable to access by nonemployee organiz-
ers.
26 502 U.S. at 538, quoting NLRB v. Babcock & Wilcox Co., 351
U.S. at 112.
ployees, and did not elaborate any aspect of property
law or constitutional law regarding property. Contrary
to our colleagues, then, we find that Lechmere’s out-
come cannot be read as a broad assessment of em-
ployer property interests that applies, per se, to all
types of trespassory access. Indeed, Lechmere specifi-
cally acknowledged that the Act imposes some limita-
tions on an employer’s enjoyment of its property inter-
ests in noting that, even on their own property, em-
ployers may not restrict employees’ rights to discuss
self-organization unless such a restriction is shown to
be necessary to maintain production or discipline.
Further, and more troubling, the majority’s ap-
proach, in our view, is an abdication of the Board’s
role as the protector of employee rights to organize, to
bargain collectively, and to engage in concerted activ-
ity for mutual aid and protection. The Board is the
only agency that is charged with protecting these rights
guaranteed in Section 7 of the Act. If we are not vigi-
lant in doing so, no other body will take up the cudg-
els. In any event, the Act does not charge the Board
with diminishing the scope of protected activity based
on a ‘‘sense’’ that the Supreme Court is ‘‘concerned’’
for employers’ property rights. Especially in view of
the fact that the language of the Lechmere decision
itself specifically limits its holding to situations involv-
ing nonemployee organizers seeking access to an em-
ployer’s property for the purpose of organizing that
employer’s employees, it is our view that we abdicate
our responsibilities as protectors of Section 7 rights by
expanding the rationale beyond the bounds prescribed
by the Court itself.
Our colleagues additionally conclude that Lechmere
applies in nonorganizational settings because of the
Court’s previous indications that Babcock applies in
such settings. This reasoning ignores Hudgens’ recast-
ing of the Babcock test when applied in nonorganiza-
tional settings.24 Moreover, contrary to our colleagues’
view, Sears, Roebuck & Co. v. San Diego County Dis-
trict Council of Carpenters, 436 U.S. 180 (1978), does
not advance their argument that the Babcock specific
lack of alternative means standard applies to area
standards picketing by nonemployee union representa-
tives. Sears’ access discussion cannot be regarded as
conclusive, because Sears concerned a preemption
issue and involved access only tangentially. Sears as-
sumed for the purpose of discussion that access for
area standards picketing would be accorded the same
treatment as access for organizational solicitation.
Sears’ statements concerning access for area standards
picketing were predicated on that assumption, which
did not constitute a holding. Further, although Sears
suggested that nonemployee access for area standards
picketing warranted less protection than that for the
‘‘core’’ activity of organizational solicitation, this can
no longer be regarded as authoritative. Lechmere
teaches that the Act protects employees’ rights to orga-
nize themselves but that organizational efforts by non-
employees are not directly protected. Thus, after
Lechmere, organizational activity by nonemployees
must be viewed as farther down the spectrum of Sec-
tion 7 rights than previously thought. Consequently,
contrary to our colleagues, we conclude that measuring
access for area standards activity against that granted
for organization by nonemployees demonstrates little,
for, after Lechmere, it involves comparing directly pro-
tected activity with indirectly protected activity. Dif-
ferences in outcome may be attributable, at least in
part, to the greater difficulty in reaching the audience
that area standards activities seek to address. See Giant
Food Markets v. NLRB, supra 633 F.2d at 24 (property
rights may have to yield more often to area standards
picketing because focus of inquiry is intended audi-
ence). Thus, there is no warrant to import Lechmere’s
reinterpretation of Babcock into the nonorganizational
sphere.25
Our colleagues’ final and most strained contention is
that, by quoting Babcock’s general rule that ‘‘an em-
ployer may validly post his property against
nonemployee distribution of union literature,’’ but
omitting the clause ‘‘if reasonable efforts by the union
through other available channels of communication
will enable it to reach the employees with its mes-
sage,’’26 Lechmere implied that this rule extends be-
yond the organizing context. Treating the Court’s par-
tial quotation of a sentence from a prior decision as si-
lently overruling the content of the unquoted portion is
not a responsible interpretation of the Court’s lan-
guage. This is particularly true where, as here, in the
paragraph immediately preceding this quotation,
Lechmere plainly and unequivocally characterized Bab-
cock’s meaning as encompassing the content of the
121LOEHMANN’S PLAZA
27 Id. Emphasis in original.
28 Babcock, 351 U.S. at 112.
29 Hudgens, 424 U.S. at 522.
30 291 NLRB 11 (1988).
31 See, for example, Montgomery Ward, 265 NLRB 60 (1982); Se-
attle-First National Bank, 243 NLRB 898 (1979), enfd. 651 F.2d
1272 (9th Cir. 1980); Giant Food Markets, 241 NLRB 727 (1979),
enf. denied 633 F.2d 18 (6th Cir. 1980).
clause omitted in the language our colleagues cite.
That prior paragraph stated:
Babcock’s teaching is straightforward: § 7 simply
does not protect nonemployee union organizers
except in the rare case where ‘‘the inaccessibility
of employees makes ineffective the reasonable at-
tempts by nonemployees to communicate with
them through the usual channels.’’27
Thus, any notion that Lechmere indicated an abandon-
ment of the language that employees must be reachable
by the union through other available channels is con-
tradicted by the very language of Lechmere itself.
5. Because, in our view, the Lechmere strict inacces-
sibility test simply has no application to communica-
tion by union representatives and members which has
purposes other than organizing an employer’s employ-
ees, we would apply an access test for these types of
communications which takes into account the Supreme
Court’s admonition in Babcock that Section 7 and
property rights be accommodated ‘‘with as little de-
struction of one as is consistent with the maintenance
of the other,’’28 as further clarified by the instruction
in Hudgens that, in making that accommodation, the
Board should keep in mind that the ‘‘locus of that ac-
commodation . . . may fall at differing points along
the spectrum depending on the nature and strength of
the respective 7 rights and private property rights.’’29
With those admonitions in mind, we would seek to de-
termine in every case involving union protests which
are directed at purposes other than organizing the em-
ployees of the employer on whose property the union
is seeking access, whether the union representatives or
members had reasonable alternative means of commu-
nicating their message to their intended audience. In
making these determinations, we would consider the
nature of the audience to whom the message is tar-
geted and the impediments that the union faces in get-
ting its message to that audience without the access to
the property that it is seeking. In addition, we would,
in every case, factor in the nature and strength of the
employer’s property interest versus the importance of
the Section 7 right asserted by the union. This is simi-
lar to the analysis which the Board applied to union
protests which were directed at either the general or
the consuming public prior to its Jean Country30 anal-
ysis, and prior to Lechmere.31
Applying that analysis to the facts of this case, we
would reaffirm the Board’s prior conclusion that the
Union had no reasonable alternative means of commu-
nicating its area standards protest to its intended audi-
ence, the customers and potential customers of the
Makro store. That audience was not readily identifiable
and thus could not reasonably be reached away from
Makro by direct personal contact, telephone, or mail.
There was also little likelihood that a public media
campaign would reach this audience, and therefore it
would not be reasonable to leave the burden and ex-
pense of such a campaign as the Union’s only re-
course.
In addition, we agree with the Board’s previous con-
clusions that picketing and handbilling near the shop-
ping center’s entrances was not a reasonable alternative
for the Union, but was ineffective, was possibly dan-
gerous, and enmeshed neutral employers. Picketing at
the Chardon Road entrances was completely ineffec-
tual, because the occupants of moving cars could not
read the picket signs, which were necessarily too small
to contain all the information that the Union wished to
convey. Handbilling at the Chardon Road entrances
was just as fruitless, because cars using Chardon Road
moved quickly, and their windows were closed. The
leafletters were also, by necessity, on the drivers’ right,
so that a driver could not take a leaflet without stop-
ping the car, reaching across the seat, and unrolling the
passenger side window—an operation that would sure-
ly interfere with the rapid flow of traffic and even en-
danger the Makro shopper. Additionally, as the Board
previously found, picketing at the shopping center en-
trances was a safety hazard to both the picketers and
drivers because of the speed of the entering vehicles.
Furthermore, by picketing at the Chardon Road en-
trances, the Union faced a Hobson’s choice, as it
prompted complaints from neutral businesses wherever
it went. When it picketed at the east entrance, the
Burger King manager complained. When the pickets
moved away from Burger King to the other side of the
entrance, the manager of Reni, another store in the vi-
cinity, complained that his customers were asking if
Reni was being picketed, because the pickets were
near one of its signs. Consequently, the Union ceased
picketing at that location. As the Board previously
found, picketing at the other entrances would likely re-
sult in similar enmeshment of neutral employers.
The conclusion we would reach is also supported by
the nature and relative strength of the property rights
asserted by Loehmann’s Plaza and Makro. Their park-
ing lot is open to the public, and the public routinely
uses it for shopping purposes. Although it is true that
the fact that the public is invited on their property does
not give members of the public the right to use it in
any way they see fit, this fact does serve to distinguish
this case from those involving company premises that
are not open to the public, and it blunts the Respond-
ents’ argument that they need to restrict access. Espe-
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 See, e.g., Giant Food Markets, supra at 728, citing Houston
Building Trades Council (Claude Everett Construction), 136 NLRB
321 (1962).
33 Decisions of the circuit courts that have addressed this issue
since Lechmere do not, in our view, provide persuasive authority
that the Lechmere strict inaccessibility approach should be applied
outside the nonorganizational sphere. In our view, Davis Super-
markets v. NLRB, 2 F.3d 1162 (D.C. Cir. 1993), and John
Ascauaga’s Nugget, Inc. v. NLRB, 968 F.2d 991 (9th Cir. 1992),
were decided based on an overly expansive reading of the Lechmere
Court’s statement that the Act ‘‘confers rights only on employees,
not on unions or their nonemployee organizers.’’ Lechmere, 502
U.S. at 532. In addition, in Davis Supermarkets, the D.C. Circuit
upheld the Board’s finding of a violation, albeit based on the alter-
native rationale that some of the picketers denied access were em-
ployees. In Oakwood Hospital v. NLRB, 983 F.2d 698 (6th Cir.
1993), a divided panel denied enforcement of the Board’s holding
that the hospital’s exclusion of a nonemployee union organizer from
its cafeteria violated the Act. The Sixth Circuit disagreed with the
Board that the hospital’s treatment of the organizer was discrimina-
tory because the cafeteria was open to the public. Regardless of the
merits of the court’s conclusion that this was not discriminatory
treatment, that case, like Lechmere itself, clearly involved the access
rights of a nonemployee union organizer, and thus does not implicate
the issues raised in this case.
34 Member Browning would also find that the Respondents’ pur-
suit of a state court lawsuit to enjoin the Union’s picketing and
handbilling violated Sec. 8(a)(1) of the Act. Member Browning
agrees with the view Justice Blackmun set forth in his concurring
opinion in Sears, Roebuck & Co. v. San Diego County District of
Carpenters, 436 U.S. 180 (1978), that state court jurisdiction is pre-
empted once the union files an unfair labor practice charge. In the
absence of a Board majority for that position, however, Member
Browning would apply the Loehmann’s Plaza I rule that the General
Counsel’s complaint triggers preemption. See Riesbeck Food Mar-
kets, 315 NLRB 940 fn. 14 (1994).
cially in view of the fact that there is no allegation or
evidence of violence or interference with ingress or
egress at Makro or any other stores, the fact that the
public is invited onto the property significantly dimin-
ishes the strength of the Respondents’ asserted prop-
erty rights in this case. See Giant Food Markets, supra.
In considering the nature and strength of the Union’s
asserted interest, we would not here attempt to ‘‘rank’’
Section 7 rights in terms of importance. Suffice it to
say that the interest of the Union and its members in
publicizing its assertion that Makro was undercutting
negotiated area standards is a right that is clearly pro-
tected by Section 7 of the Act,32 and, in our view,
plainly outweighs the diminished private property in-
terest of Loehmann’s Plaza and Makro. In view of the
lack of any reasonable alternative means available to
the Union and its members to publicize their dispute,
we agree with the Board’s previous conclusion that the
Respondents’ demand that the Union cease picketing
and handbilling near Makro’s store violated Section
8(a)(1) of the Act.33
In summary, because we believe that our colleagues
err in applying the holding and analysis in Lechmere
to nonorganizational activity, and further err in dis-
missing the complaint in this case, we respectfully dis-
sent.34