Oakland Mall

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 832 (N.L.R.B. 1991)

832
304 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We agree with the judge that the Sec. 7 activity engaged in by the Union
was ‘‘at the very least’’ as protected as the Sec. 7 activity engaged in by the
union in Jean Country, 291 NLRB 11 (1988), which the judge incorrectly
identified as ‘‘area standards’’ activity.
In adopting the judge’s finding that Respondent Macomb Mall violated the
Act, we also note Union Organizer Lowran’s credited testimony that he at-
tempted and was unable to obtain insurance on behalf of the Union conform-
ing to Sears’ demands.
3 The Union’s primary dispute was with Ryder DPD (not a party to this pro-
ceeding). Ryder previously had a contract with Sears under which Ryder pro-
vided home delivery services to Sears. Ryder had employed about 80 to 100
driver employees to perform this contract, who had been represented by the
Union. Sears subsequently canceled its home delivery services contract with
Ryder, and Ryder in turn laid off the 80 to 100 driver employees. The Union
handbilled the Sears stores in question in an attempt to get customer sympathy
and support for the Union’s efforts to get it to reinstate Ryder for home deliv-
ery services. The handbills themselves requested customers not to shop at
Sears, advised them that Sears no longer used a company (not identified) that
employed union members to deliver Sears merchandise, informed them that
100 union members had lost their jobs as a result of Sears no longer using
that company, and asked for the customers’ help in getting the employees’
jobs back. The handbillers were mostly former Ryder employees. None were
employees of Sears.
4 Although our colleague asserts that the judge ascribed undue weight to the
Union’s Sec. 7 rights, he nevertheless does acknowledge that the Union’s con-
duct is, in the final analysis, protected by the Act. Thus, the fundamental dis-
agreement between our colleague and us is over the consequences of the
Union’s failure actually to attempt to handbill from the perimeter locations to
which it had been relegated.
5 Jean Country, 291 NLRB 11, 13 (1988).
6 Id. See also Target Stores, 300 NLRB 964 fn. 2, 970 (1990); Best Co.,
293 NLRB 845 (1989).
7 The cases relied on by our colleague in this context are inapposite. Provi-
dence Hospital, 285 NLRB 320 (1987), involved, in relevant part, the reason-
ableness of picketing, not handbilling, near a busy highway. In Skaggs Cos.,
285 NLRB 360 (1987), the Board found that as a reasonable alternative to
handbilling on the shopping center’s parking lot in front of the primary em-
ployer’s private store, the union reasonably could have communicated its area
standards message to the public by ‘‘handbilling and picketing’’ (emphasis
added), on the public sidewalk around the perimeter of the shopping center’s
property. In the instant case, however, as both the judge and our colleague
recognize, picketing (as opposed to handbilling) to convey the Union’s second-
ary consumer boycott message would have subjected the Union to an unfair
labor practice charge. In any event, even in Skaggs, the Board expressly noted
that the union would not necessarily have to show that it actually attempted
and failed to communicate its message from the public sidewalk in order to
disprove the reasonableness of that alternative. Also in Skaggs, the Board
noted that there was no evidence that two other roads servicing the shopping
center were not reasonable alternative means to the union’s access to the re-
spondent’s property. In L & L Shop Rite, 285 NLRB 1036 (1987), the record
established that the union actually had handbilled and picketed automobiles
from the sidewalk adjacent to the public roads surrounding the shopping cen-
ter, and the Board found that handbilling at that location ‘‘would supplement
Oakland Mall, Ltd. and Sears, Roebuck and Co.
and Local 243, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO
Macomb Mall Associates, a Limited Partnership
and Sears, Roebuck and Co. and Local 243,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 7–CA–28367 and 7–
CA–28446
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 2, 1989, Administrative Law Judge Michael
O. Miller issued the attached decision. Respondent
Macomb Mall Associates filed exceptions and a sup-
porting brief, Respondent Sears, Roebuck and Com-
pany filed exceptions and supporting arguments, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions and to
adopt the recommended Order.2
The judge found, inter alia, and we affirm, that Re-
spondent Sears (Sears) violated Section 8(a)(1) of the
Act by demanding that the Union cease or refrain from
engaging in protected nonemployee customer boycott
handbilling, aimed solely at Sears’ customers and con-
ducted on its property at the entrances to its Oakland
Mall and Macomb Mall stores.3
Our colleague finds that Sears did not unlawfully
deny the Union access to its property, essentially on
the grounds that the General Counsel has not estab-
lished that the Union lacked reasonable alternative
means of communicating its message to Sears cus-
tomers.4
Our colleague focuses on the fact that the Union did
not actually attempt to handbill automobile traffic as it
passed in front of the malls on the surrounding road-
ways and heavily traveled, 30- to 40-mile-per-hour di-
vided thoroughfares surrounding the malls, or as that
traffic turned from those roadways and thoroughfares
and entered the mall parking lots. Thus, in contending
that Sears lawfully prohibited the Union from engaging
in handbilling on its property at the mall locations in
question, our colleague relies on the absence of affirm-
ative evidence of failed handbilling, at the perimeters
of the malls, that would have conclusively established
in our colleague’s eyes that such perimeter handbilling
could not have been effectively and safely carried on.
But it is well settled that, in showing that ostensible
alternative means of reaching an audience are not rea-
sonable alternatives, the General Counsel is not nec-
essarily required to show that the party engaging in the
Section 7 conduct actually attempted those alternative
means and found them futile.5 All that is required is
a clear showing, based on objective considerations,
that reasonably effective alternative means were not
available in the circumstances.6 We find, in agreement
with the judge and for the reasons fully discussed by
him, that the General Counsel has made such a show-
ing here.7
833OAKLAND MALL
the Union’s picketing as a means to convey its message.’’ Id. at 1039 (empha-
sis added). Again, in the instant case picketing to convey the Union’s message
is not a lawful alternative. Finally, in Homart Development Corp., 286 NLRB
714 (1987), the unions engaged in secondary handbilling at a shopping mall
(Fiesta Mall) housing a department store which was utilizing a nonunion gen-
eral contractor and subcontractors to build an additional store at another mall
(Westridge Shopping Mall). Testimonial opinions varied about the relative
safety of handbilling at the highway entrances to the Fiesta Mall. But beyond
the controversial evidence of handbilling safety in Homart, the unions were
able to effectively handbill at one public property entrance to Fiesta Mall for
approximately 1 month. Almost immediately thereafter, the unions began com-
municating their message by picketing at the Westridge Shopping Mall where
the general contractor and subcontractors were actually constructing the new
store. Further, the pertinent principle of Jean Country, supra—which issued
after Homart—remains unchallenged and is applicable to the instant case: the
General Counsel is not necessarily required to show that the party engaging
in Sec. 7 conduct actually attempted alternative means of communication in
order to establish their futility.
Thus, while it might be true, as our colleague suggests, that the ‘‘best’’ way
to determine the efficacy of an alternative means of communication is to at-
tempt it, it is clearly not the only way, and, more importantly for the purposes
of our decision herein, it is certainly not, under the Act, the necessarily re-
quired way.
8 We do, however, note particularly that the judge found, inter alia, that the
distribution of handbills to passing automobiles from the public easements
around the perimeter of Oakland and Macomb Malls, and from the traffic me-
dians and ‘‘jughandles’’ in the thoroughfares abutting the malls, would have
been both fruitless and dangerous because of the speed of the traffic. We agree
with the judge’s assessment of these circumstances. See Sentry Markets, 296
NLRB 40 (1989), enfd. 914 F.2d 113 (7th Cir. 1990); W. S. Butterfield Thea-
tres, 292 NLRB 30 (1988).
9 In reaching this result, we note our colleague’s assertion that ‘‘a union is
held to a higher standard’’ in attempting to establish an absence of reasonable
alternative means to access to the property of a secondary employer. Our col-
league’s reliance on Hardee’s Food Systems, 294 NLRB 642 (1989) and Fed-
erated Department Stores, 294 NLRB 650 (1989) as support for this assertion
is unavailing on two counts. First, that assertion is neither expressed nor im-
plied in either of those cases. Second, neither case is apposite to the situation
presented in the instant case.
In Hardee’s, the secondary handbilling which Hardee’s lawfully prohibited
on its private property was conducted at its three Terre Haute, Indiana stores.
These stores were 15 miles from Hardee’s Brazil, Indiana store that was the
actual situs of the union’s primary dispute with Hardee’s nonunion contractor,
who was at that time engaged in construction work only at the Brazil store,
and not at the Terre Haute stores. Indeed, at the same time that the union was
being prohibited by Hardee’s from engaging in secondary handbilling at the
three stores in Terre Haute, where the primary employer was not even present,
the union was being permitted by Hardee’s to engage in continued primary
handbilling of Hardee’s nonunion contractor at the Brazil store itself, where
the contractor was presently working.
In the instant case, by way of contrast with Hardee’s, the secondary
handbilling which Sears has unlawfully prohibited at its Oakland Mall and
Macomb Mall stores was being conducted at what the judge has aptly charac-
terized as ‘‘the fulcrum of the dispute, Sears, whose actions, directly or indi-
rectly, brought about [the union members’] unemployment and could similarly
bring about their re-employment.’’
In Federated Department Stores, the secondary handbilling which Richway
lawfully prohibited at its Palm Beach Lakes and Military Trails stores did not
even commence until after the primary employers (Richway’s nonunion con-
struction contractors) had completely finished their work on the Palm Beach
Lakes and Military Trails projects and had gone from those jobsites. Indeed,
the union in Federated Department Stores apparently made no effort to engage
in primary or secondary handbilling or picketing at any location where the pri-
mary employer contractors were actually engaged in their work.
In the instant case, in sharp contrast to Federated Department Stores, Sears’
merchandise sold at both its Oakland Mall and Macomb Mall stores was being
delivered to customers by Sears’ nonunion replacement for Ryder during the
same time period that the Union was attempting to engage in its secondary
handbilling at those stores—‘‘the fulcrum of the dispute.’’
1 351 U.S. 105 (1956).
Thus, we fully endorse—and see no need to restate
or set forth here—the judge’s thorough analysis of the
‘‘reasonable alternative means’’ aspect of this case (set
forth in secs. II,B,4; II,C,5; and II,D,4 of his attached
decision.8 Consequently, we affirm the judge’s well-
reasoned finding that the Union had no reasonable al-
ternative means to handbilling at Sears store entrances,
on or (in the case of Sears mall entrance at Macomb
Mall) immediately adjacent to Sears’ property, to com-
municate its message.9
Finally, we note that our decision herein compels no
relinquishment of property rights. It directs only an ac-
commodation of the recognized private property rights
of Sears with the equally recognizable Section 7 rights
of the Union. Jean Country, supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Sears, Roebuck and Co.,
Troy and Roseville, Michigan; Macomb Mall Associ-
ates, Roseville, Michigan; and Oakland Mall, Ltd.,
Troy, Michigan, their officers, agents, successors, and
assigns, shall take the action set forth in the Order.
MEMBER OVIATT, dissenting.
Unlike my colleagues, I conclude Sears did not un-
lawfully deny the Union access to its property. In my
view the General Counsel has failed to meet his bur-
den under NLRB v. Babcock & Wilcox Co.,1 of prov-
ing that the Union lacked reasonable alternative means
of communicating with customers of Sears. Con-
sequently, I find that the Union’s right to engage in
lawful secondary handbilling need not be accommo-
dated at the expense of the Respondent’s property
rights.
The Union’s primary dispute is with Ryder DPD,
which laid off trucking employees represented by the
Union after Sears canceled its contract with Ryder for
home delivery services in July 1988. Sears replaced
Ryder with Leaseway Trucking, which had no contract
with the Union, and which hired only a few of the
laid-off Ryder employees. The Union responded with
a handbilling campaign directed at Sears’ customers at
the Oakland and Macomb Malls in Troy and Roseville,
Michigan, respectively. The handbills, which urged
Sears to reinstate the Ryder contract to win back mem-
bers’ jobs, contained the following message:
ATTENTION SHOPPERS
PLEASE do not shop at this . . .
Sears & Roebuck Store!
Sears no longer uses a Company that employs
Local 243 Members to deliver merchandise.
As a result, (100) One Hundred Members of
Local 243 have lost their jobs. Our members need
your help to get their jobs back.
Thank you. . .
Teamsters Local No. 243
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to distributing the handbills, the former
Ryder employees asked customers to speak on their
behalf to Sears management.
Both handbilling locations are in enclosed malls.
Sears occupies Oakland Mall along with three other
major department stores, 140 specialty shops, and
common areas with trees, plants, and benches. Sears is
the largest store in the mall. There is one entrance to
Sears from inside the mall, and eight entrances with
double or quadruple doors from the sidewalk surround-
ing Sears. Sears owns, provides security for, and pays
taxes on its own building and surrounding sidewalks,
the area adjacent to the mall entrance 12 feet into the
mall, and the parking lot adjacent to the store. No-
solicitation/no-distribution signs are posted to the
nonmall entrances, and these rules have largely been
enforced. Sixty-five percent of Sears customers enter
the mall through two of the five car entrances, and the
remaining customers use the three other entrances. A
hard-surfaced public easement 15 to 20 feet wide and
maintained by the city of Roseville, Michigan, sur-
rounds the mall.
On August 2, 1988, Union Organizer Thomas
Ziembovic and six laid-off Ryder employees distrib-
uted handbills at the mall entrance to Sears and at two
of the exterior entrances. Sears Operations Manager
Marshall Dyke requested that the handbillers leave the
mall entrance and, when they moved to two parking
lot entrances, that they leave those entrances as well.
When the latter request was ignored, Dyke called the
police. The police arrived and ordered the handbillers
off Sears property. The police told the handbillers that
they could handbill on the easement around the prop-
erty, but that if they obstructed traffic or disobeyed po-
lice orders they would be arrested. Mall officials also
denied Ziembovic’s request for permission to handbill
at the Sears entrance to the mall.
Macomb Mall, which is also enclosed, consists of a
Sears store, 2 or 3 smaller department stores, and 90
specialty shops. Sears owns and controls the property
from its mall entrance to the easements surrounding its
parking lot. Twenty percent of the Sears shoppers use
the mall entrance; 80 percent use exterior doors. There
are also uniformly enforced no-solicitation/no-distribu-
tion signs.
On August 9, 1988, the Union distributed handbills
at all three exterior entrances to Sears’ Macomb Mall
store as well as at the mall entrance to Sears. At the
direction of a Sears supervisor, two handbillers at the
customer service parking lot entrance were told that
the police would be called. The handbillers left.
Handbillers at other entrances refused to leave, how-
ever. When Sears called the police and the police told
the handbillers that they would be arrested, the
handbillers left. Union Business Representative Greg-
ory Lowran asked the police where the Union could
handbill and was directed to the public easement. The
police told Lowran that, if the handbillers went off the
easement and onto the street, they would be arrested
for obstructing traffic.
The Union did not attempt to handbill at Oakland
Mall at the public easement around the parking lots,
the public easement portion of the medians in en-
trances off the main road adjacent to the mall parking
lots, or the median strips and jughandles on either of
the adjoining roads. Nor did the Union attempt to
handbill at Macomb Mall from the public easement to
which it had been directed by the police, or the median
strips of the abutting roads.
My colleagues adopt the judge’s finding that the Re-
spondent’s property interest must yield at both
handbilling sites to accommodate the Union’s right to
communicate its message to the public. In my view,
the judge’s analysis is flawed. First, he ascribes undue
weight to the Union’s Section 7 rights. Second, he
holds the General Counsel to a much too lax a stand-
ard in meeting his burden of showing there were no
reasonable alternative means of communicating the
Union’s message.
While the judge acknowledged that the Section 7
right exercised here is ‘‘not at the stronger end of the
‘spectrum’ of Section 7 rights,’’ he erroneously com-
pared the Union’s interest both to ‘‘struck product’’
consumer handbilling, which, according to the Su-
preme Court’s decision in NLRB v. Fruit Packers
Local 760 (Tree Fruits), 377 U.S. 58 (1964), is per-
missible under the Act, and to area standards
handbilling, found worthy of protection against sub-
stantial impairment in Jean Country, 291 NLRB 11
(1988). Neither comparison is apposite. In Tree Fruits,
the Supreme Court distinguished the consumer-directed
publicity, which it there found to be protected when
‘‘employed only to persuade customers not to buy the
struck product [where] the union’s appeal is closely
confined to the primary dispute,’’ from ‘‘consumer
picketing . . . employed to persuade customers not to
trade at all with the secondary employer [where] the
latter stops buying the struck product, not because of
a falling demand, but in response to pressure designed
to inflict injury on his business generally.’’ 377 U.S.
at 72. Here, as in the latter situation, the Union’s hand-
bills plainly urged customers to stop shopping at Sears’
stores. The Union thus ‘‘create[d] a separate dispute
with the secondary employer.’’ Id. Nor is the Union’s
activity strictly analogous to picketing in Jean Coun-
try, where the Union’s immediate goal was to persuade
potential customers not to patronize the primary em-
ployer, the nonunion store it was picketing.
The Union’s dispute is with Ryder DPD, which laid
off its employees after its contract with Sears for deliv-
ery services had been canceled. Because the
handbilling is directed not at Ryder, but at a secondary
835OAKLAND MALL
2 See Edward J. Debartolo Corp. v. Florida Building Trades Council, 485
U.S. 568 (1988).
3 Thus, when a union has both a primary and secondary target at numerous
locations, the Board examines whether the union can effectively communicate
its protest against the primary employer before demanding access to establish-
ments having a more remote connection to the primary dispute. See, e.g.,
Hardee’s Food Systems, 294 NLRB 642, 643–644 (1989); Federated Depart-
ment Stores, 294 NLRB 650, 652 (1989). In this case, try as my colleagues
may to cast Sears as the ‘‘fulcrum’’ of this dispute, Ryder is, as they acknowl-
edge, the primary, and Sears is plainly a secondary employer.
4 See, e.g., Providence Hospital, 285 NLRB 320 (1987) (45 m.p.h.); Homart
Development Corp., 286 NLRB 714 (1987) (40 m.p.h.); Skaggs Co., 285
NLRB 360 (1987) (35 m.p.h.).
5 Lechmere, Inc. v. NLRB, 914 F.2d 313 (6th Cir. 1990) (Judge Torruella
dissenting).
6 See also L & L Shop Rite, 285 NLRB 1036, 1039 (1987), in which the
Board noted that ‘‘[a]lthough only between 5 percent and 25 percent of the
motorists entering paused to accept handbills, at least those desiring to receive
the handbills had a reasonable opportunity to do so.’’
7 Babcock & Wilcox, 351 U.S. at 113.
8 See L & L Shop Rite, supra at 1039.
9 See Farah Mfg. Corp., 187 NLRB 601, 617 (1970), enfd. 450 F.2d 942
(5th Cir. 1971) (‘‘One would think that the best way to determine the efficacy
of such an effort [at alternative means of communication] would be to make
it.’’).
employer, Sears, its status on the spectrum of Section
7 rights is weak. It is conduct that is lawful only be-
cause its medium is handbilling rather than picketing.2
The secondary nature of the Union’s conduct has
significance also in evaluating the extent to which the
General Counsel has met his burden of proving that
the Union lacked reasonable alternative means of com-
municating with the public. A union is held to a higher
standard before we may compel its entry onto the
property of a secondary employer.3 Here, the judge
grounded his finding that the Union lacked adequate
alternatives on (1) the speed of traffic on the roads sur-
rounding the malls and the lack of traffic lights at
some entrances; (2) difficulties in reaching drivers with
handbills where handbillers were necessarily stationed
on the passenger side of vehicles, and drivers would
be unable to accept literature even if the cars could
come to a complete stop and had car windows open;
(3) the handbillers’ risk of arrest for obstructing traffic
by standing in median strips or jughandles at parking
lot entrances; (4) the handbillers’ inability to distin-
guish Sears shoppers from others entering the malls;
and (5) the risk of enmeshment of neutral employers
also located in the malls.
I am not persuaded that these obstacles so impeded
the Union’s ability to deliver its message that they jus-
tify compelling Sears to relinquish its property rights.
First, the speed limits on the highways surrounding the
malls are no greater than those in effect at other busi-
nesses where the Board has found forced access to
property unwarranted.4 Second, the General Counsel
offered no evidence that drivers without passengers
were so prevalent at the parking lot entrances to the
malls that it was impractical for the Union to try to de-
liver handbills to cars through the passenger windows.
In the absence of that evidence, it has not been estab-
lished that passengers, who are less prone to distrac-
tion than drivers entering the malls, do not offer the
Union the necessary ‘‘reasonable’’ opportunity to con-
vey its message from the perimeter of the malls.
Especially in view of the weak Section 7 interest at
issue in this case, I am not persuaded that the Union
has not had a reasonable opportunity to communicate
with its audience. Perhaps some of the factors enumer-
ated by the judge would have contributed to a less-
than-100-percent acceptance rate among customers of
Sears entering the mall parking lots by car. Even
Board access orders, however, do not guarantee that
any percentage of the public will accept handbills.
They provide only for a reasonable opportunity to get
the Union’s message across.5 In Greyhound Lines, 284
NLRB 1138 (1987), for example, a union was lawfully
denied access to the interior of a bus terminal to picket
and handbill customers of a restaurant enclosed within
the terminal, where the vast number—but not all—of
the restaurant patrons were off-the-street customers
who could be reached from outside the terminal.6
Further, it is not known on this record what measure
of success the Union might have had if it had at-
tempted to handbill at driveway entrances. The law
may not require a union to attempt unreasonable alter-
native means of communication, but perimeter
handbilling is certainly among ‘‘[t]he usual methods of
imparting’’ the type of information the union seeks to
convey to the public.7 It has been established, for ex-
ample, in a shopping center situation, that a driveway
entrance heavily congested with traffic might create
some degree of traffic backup, but not so great as to
cause the police to intervene to ensure public safety.8
Here, the Union has not made a record of tried-and-
failed attempts at handbilling the entrances to the two
malls to meet its alternative-means burden under Bab-
cock & Wilcox. Thus, it has failed to justify its claim
to access to the Respondent’s private property.9 With-
out such a record, and in view of the weak nature of
the Union’s Section 7 interest, I cannot join my col-
leagues in compelling access to the Respondent’s pri-
vate property.
Tinamarie Pappas, Esq., for the General Counsel.
Douglas A. Witters, Esq. (Clark, Hardy, Lewis, Pollard &
Page, P.C.), of Birmingham, Michigan, for Respondent
Oakland Mall, Ltd.
Peter B. Kupelian, Esq. (Tucker & Rolf), of Southfield,
Michigan, for Respondent Macomb Mall Associates,
Hy Bear, Esq., of Chicago, Illinois, for Respondent Sears,
Roebuck and Co.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. These
consolidated cases were heard in Detroit, Michigan on Janu-
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The unopposed motions to correct the transcript are granted. 2 All dates hereinafter are 1988 unless otherwise specified.
ary 25, 26, and 27, 1989, based on unfair labor practice
charges filed on August 18, and September 9, 1988, by Local
243, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (the
Union), complaints issued by the Regional Director of Re-
gion 7 of the National Labor Relations Board (the Board),
on September 27, and October 24, 1988, and an order con-
solidating cases which issued on October 26, 1988. The com-
plaints allege that Oakland Mall, Ltd., Macomb Mall Associ-
ates, a Limited Partnership, and Sears, Roebuck and Co. (in-
dividually referred to as Oakland Mall, Macomb Mall, Sears,
and collectively as Respondents), prohibited the Union from
engaging in handbilling activities on property owned by each
of them, in violation of Section 8(a)(1) of the National Labor
Relations Act (the Act). Respondents’ timely filed answers
deny the commission of any unfair labor practices.
All parties were afforded the opportunity to examine and
cross-examine witnesses, introduce evidence, argue orally,
and submit posthearing briefs. Briefs were submitted on be-
half of all parties.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the parties’
briefs, I make the following
FINDINGS OF FACT
I. THE EMPLOYERS’ BUSINESSES AND THE UNION’S
LABOR ORGANIZATION STATUS—PRELIMINARY
CONCLUSIONS OF LAW
Oakland Mall, a Michigan corporation, is engaged in the
operation of a retail shopping center in Troy, Michigan. In
the course and conduct of its business operations, it annually
derives gross revenues in excess of $500,000 and purchases
and causes to be shipped to its Troy, Michigan place of busi-
ness, goods and materials valued in excess of $50,000 di-
rectly from points located outside the State of Michigan.
Oakland Mall admits and I find and conclude that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Macomb Mall, a Michigan corporation, is engaged in the
operation of a retail shopping center in Roseville, Michigan.
In the course and conduct of its business operations, it annu-
ally derives gross revenues in excess of $500,000 and pur-
chases and causes to be shipped to its Roseville, Michigan
place of business, goods and materials valued in excess of
$50,000 directly from points located outside the State of
Michigan. Macomb Mall admits and I find and conclude that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Sears, a New York corporation, is engaged in the retail
sale and distribution of clothing, household goods, appliances
and related items at its stores which are located throughout
the United States, including stores in Troy and Roseville,
Michigan, the only facilities involved in the instant proceed-
ings. In the course and conduct of its business operations at
each of the Michigan stores involved herein, it annually de-
rives gross revenues in excess of $500,000, and annually pur-
chases and receives goods and materials valued in excess of
$50,000 which were shipped directly from points located out-
side the State of Michigan. Sears admits and I find and con-
clude that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondents have stipulated, and I
find and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background—The Union’s Dispute and Object
For a number of years, Sears had a contract with Ryder
DPD to provide home delivery services. Ryder’s 80 to 100
employees were represented by the Union. When Sears can-
celled its contract with Ryder in July of 1988,2 retaining
Leaseway Trucking in its place, the Ryder employees were
laid off. Leaseway hired only a few of those employees and
has no agreement with the Union.
In August, the Union decided to handbill the Sears stores
in the Oakland and Macomb Malls in an effort to win cus-
tomer sympathy and support for its efforts to get Sears to re-
instate Ryder and thereby return its members to the jobs
which they had lost. The handbill, distributed on each in-
stance described hereafter, read:
ATTENTION SHOPPERS
PLEASE do not shop at this . . . Sears & Roebuck
Store!
Sears no longer uses a Company that employs Local
243 Members to deliver merchandise.
As a result, (100) One Hundred Members of Local
243 have lost their jobs. Our members need your help
to get their jobs back.
THANK YOU . . .
TEAMSTERS LOCAL NO. 243
In each instance, the handbillers were instructed not to
roam about or prevent anyone from entering the store, to be
polite and to tell anyone who asked that they were trying to
get their jobs back. There is no evidence in this record that
the handbilling was conducted in any way inconsistent with
these instructions. While the handbills asked shoppers to re-
frain from shopping in the Sears’ stores, the Union witnesses
professed to be asking customers to speak on their behalf
with Sears’ management. The handbillers, who were, for the
most part, former Ryder employees, were given no instruc-
tions regarding their presence on, or avoidance of, private
property.
The handbilling was directed solely at Sears’ customers;
there was no attempt to organize or otherwise reach the em-
ployees of Sears, Oakland Mall, or Macomb Mall, whether
unionized or not. Neither of the Malls was involved in the
underlying dispute. There were no signs or sandwich boards
used and there was no picketing.
B. Sears and Oakland Mall
1. The properties
Oakland Mall is located at the junction of 14 Mile and
John R Roads in Troy, Michigan, just off of Interstate 75.
It is an enclosed mall, consisting of three major department
837OAKLAND MALL
3 Ziembovic testified that there was no handbilling at the mall entrance;
Dyke, however, observed handbillers there and ordered them off of the prop-
erty. I credit Dyke who had no reason to fabricate this testimony. With six
or more employees handbilling different points around Sears, it is distinctly
possible that some of them chose, on their own and without Ziembovic’s
knowledge, to handbill at the mall entrance. It appears, from subsequent
events, that they did not tell Ziembovic of their confrontation with Dyke.
stores, Sears, Pennys, and Hudsons, located at the ends of
wide, street-like aisles, complete with trees, plants and
benches. About 140 smaller specialty shops line the aisles.
Sears, the largest store in the mall, was built before the mall
as a free standing store and is now joined at the mall’s east-
ern wall. There is a single wide entrance into Sears from the
inside of the mall on the ground floor. There are also ap-
proximately eight entrances, consisting of either double or
quadruple doors, into the various departments from the side-
walk surrounding Sears. Sears owns, provides security for,
and pays taxes on its own building, the sidewalks around it,
the area adjacent to the mall entrance extending 12 feet into
the mall, and the parking lot adjacent to the Sears store, ex-
tending at least several hundred feet, to the public easement
between the parking lot and the roads.
While there are no signs or other markings indicating the
ownership or the property lines, there are no-solicitation
signs at each of the Sears entrances. Those signs, consistent
with Sears’ policies, read:
NOTICE TO THE PUBLIC
SOLICITATION OR DISTRIBUTION OF HANDBILLS—CIRCU-
LARS, ETC. PROHIBITED ON THESE PREMISES WITHOUT
PRIOR PERMISSION.
SEARS ROEBUCK AND CO.
Pursuant to this policy, Sears at Oakland Mall has not per-
mitted any solicitations, even for charitable purposes, except
for a limited number of Christmas bell ringers, to be con-
ducted on its property.
Surrounding the mall are parking lots; the portion owned
and maintained by Sears has a capacity of more than 3000
cars, the portion owned and maintained by Oakland Mall has
space for about 8800 cars. Abutting the parking lots are pub-
lic easements, paved or grass-covered, which are between 12
and 20 feet wide. Both 14 Mile and John R Roads are heav-
ily traveled, divided thoroughfares, six and four lanes respec-
tively, with 40-mile-per-hour speed limits.
Along 14 Mile Road, to Oakland Mall’s south, there are
two entrances to the parking lots. The easternmost entrance,
designated entrance number 1, follows the property line be-
tween Sears and the mall. It serves both lots and is used by
customers going to either the mall in general or Sears in par-
ticular. It is the most convenient entrance for customers ap-
proaching Sears from 14 Mile Road. Overhead is a sign
pointing to Sears with no designation of the mall or other
stores on it. There does not appear to be a median strip, on
either public or private property, in the center of that en-
trance driveway. There is a narrowing of the median strip on
14 Mile Road, referred to as a ‘‘jughandle,’’ and a traffic
light to facilitate east bound traffic in crossing the west
bound lane to enter the parking lot at entrance number 1. To
the west is an entrance to the mall parking lot, with a sign
identifying Oakland Mall, Sears and Hudsons, used by cus-
tomers destined for any of the stores. At the junction of 14
Mile and John R Roads there is a pylon sign, identifying
Oakland Mall, Sears, Hudsons and Pennys.
Along John R, which runs north and south, there are five
entrances to the parking lots. Four of these enter into Sears’
property. Only the southern (number 2) and northern (num-
ber 5) entrances have median strips, small portions (8 feet)
of which extend into public property. There is a traffic light
at entrance number 2, and a jughandle which can accommo-
date about 10 cars. There are also two buses which stop
along John R, at entrance number 2, and another which en-
ters the parking lot and stops at the Pennys store.
Most (approximately 65 percent) automotive traffic enters
the Sears’ parking lots through entrance number 1, along 14
Mile Road, and entrance number 2, off of John R. The re-
mainder of the traffic is fairly well distributed among the
other three entrances. Sears does not prohibit persons intend-
ing to shop at other stores in the mall from using its parking
lot or the entrances thereto; neither does Oakland Mall pro-
hibit Sears’ customers from using its parking lot and its en-
trances.
About 80 percent of Sears’ customers enter that store
through the exterior doors; the remainder enter from the
mall. Some customers destined for other stores in the mall
enter and cross through Sears. Sears contends that most of
its customers are ‘‘single item shoppers’’ who come to the
mall solely to shop at Sears, entering and using the parking
lots nearest the Sears department in which they intend to
shop.
Sears and Oakland Mall are open for all but 3 days a year;
Sears’ hours are slightly longer than those of the mall stores
but, when Sears is open, customers can enter the mall
through Sears’ mall entrance.
2. Attempts to handbill Sears at Oakland Mall
On August 2, Thomas Ziembovic, an organizer for the
Union, together with about six laid-off Ryder employees,
began handbilling at the Sears at Oakland Mall. Handbillers
were stationed at the mall entrance, the entrance from the
parking lot to the women’s department and by the entrance
to the service department; all were on Sears’ property. At
about 2 p.m., Marshall Dyke, Sears’ operating manager for
that store, was directed by his unit manager to determine if
there were handbillers and solicitors at the store’s entrances.
He proceeded to the mall entrance where he encountered two
persons passing out the Union’s handbill. He told them that
this activity was not allowed and that they were on Sears’
property. They left, stating that they had not realized it was
Sears’ property.3
Dyke proceeded through the store to the women’s depart-
ment, observing handbills that customers had placed on the
cash registers and end caps. He found three men handbilling
at the women’s department entrance and, when he told them
that their conduct was not permitted, was referred to
Ziembovic. He repeated his admonition to cease the distribu-
tion, referring to Sears’ no-solicitation rule, and threatened to
call the police if they did not leave. Ziembovic told him ‘‘to
do what he had to do’’ and the handbilling continued.
About 1 or 2 hours later, the Troy police arrived. They
spoke with Dyke and accompanied him to where Ziembovic
and the Ryder employees were handbilling. At Dyke’s re-
quest, the police ordered Ziembovic and the employees to
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 That Mossman took the telephone call from Ziembovic at his office lo-
cated at some distance from the mall, rather than at the mall as alleged in
the complaint, is irrelevant and not a material variance from the pleadings.
leave Sears’ property. When Ziembovic stated that they
wanted to continue handbilling, the police officer replied that
they could handbill at the easement around the property.
However, Ziembovic was told that if they obstructed traffic
or refused to follow police orders, they would be arrested.
3. Attempts to handbill in Oakland Mall
About mid-afternoon on August 2, Ziembovic, accom-
panied by one of the Ryder employees, went to the Oakland
Mall office where he spoke with Don Pyden, mall manager.
He told Pyden that the Union wanted to handbill Sears’ cus-
tomers at the entrance to Sears from the mall. According to
Ziembovic, Pyden refused his request, stating that the Union
could handbill at any of the Sears exterior entrances, those
being Sears’ property, but could not handbill anywhere in the
mall, including the area around the mall entrance, which, he
erroneously claimed, was mall property. He allegedly threat-
ened to call the police if the Union handbilled on the mall’s
private property. And, although Ziembovic did not express
any interest in placing handbills on cars in the parking lots,
Pyden allegedly added that the Union was not to do so be-
cause it would cause littering.
Pyden claimed to have merely said that, ‘‘I would rather
he would not . . . pass out handbills,’’ denying that he had
refused permission to do so and denying that he made any
reference to the parking lots. Pyden testified that he had no
authority over Sears property within the mall; however, he
did not tell the Union that Sears was the owner of the first
12 feet outside its mall entrance. The Union made no further
effort to handbill at the mall entrance.
Some time thereafter, Ziembovic called Douglas Mossman,
one of the mall’s principals, and repeated his request to
handbill at Sears’ mall entrance. According to Ziembovic,
Mossman refused his request, stating that Sears owned its
own property but not identifying the property line as being
within the mall. He also rejected Ziembovic’s query about
placing handbills on cars in the parking lot, allegedly stating
that he would make sure they ended up on the ground, con-
stituting littering.
Like Pyden, Mossman claimed to have told Ziembovic that
he only preferred that the Union not handbill on mall prop-
erty. He further claimed to have identified the Sears’ prop-
erty line and to have stated that the Union could handbill on
Sears property and could distribute its handbills in the mall’s
parking lot as long as the handbills were not left on car
windshields, where they would cause a littering problem.4
Notwithstanding that General Counsel failed to call the
employee who had accompanied Ziembovic to Pyden’s office
to corroborate Ziembovic’s testimony, I am inclined to credit
his recollection as against both Pyden and Mossman. It is not
plausible that a union which was serious enough about a dis-
pute to prepare a handbill, bring employees together to dis-
tribute it, continue its distribution on Sears’ property even
when ordered off and seek permission to make that distribu-
tion on what it believed to be mall property would have re-
frained from doing so had it merely been told, ‘‘We would
rather you didn’t.’’ Given such noncommittal answers as
Pyden and Mossman claimed, Ziembovic would have gone
ahead with the distribution. That he refrained from doing so,
in the circumstances of this case, evidences that he was or-
dered not to do so.
On August 10, the Union wrote both Pyden and Douglas
Mossman, ‘‘requesting permission to handbill at the Sears’
entrances at the Oakland Mall.’’ Neither letter was answered.
Both Mossman and Pyden testified that they did not reply
because they interpretted the letter to be seeking permission
to handbill on Sears’ property, not Oakland Mall’s.
4. The Union’s alternatives
The Union did not return to handbill at the Oakland Mall
Sears after August 2. Neither did it attempt, on that or any
other day, to distribute its handbill from the public easement
around the parking lots, the public easement portion of the
medians in entrances numbers two and five off of John R
Road or the median strips and jughandles on 14 Mile or John
R Roads, areas which Respondent Sears contends are suitable
for the Union’s distribution.
In addition to the speed of the traffic around the Mall
making distributions at the roads ineffective or dangerous,
Ziembovic pointed out that a person attempting to pass out
literature from the easements along the adjacent roads would
be on the passenger side of any passing car, making it vir-
tually impossible to hand a leaflet to a driver even if the car
slowed down and the window was open. Standing on the me-
dian in those roads, or on the jughandles, might enable a dis-
tributor to reach a driver who had slowed or stopped to turn
into the mall but risked arrest for obstructing traffic, as
threatened by the police. Similarly, an attempted distribution
from the medians in entrances numbers two and five would
have required a distributor to stand within approximately 8
feet of public easement and would have required a driver to
stop immediately upon turning into the driveway in order to
accept a handbill, thus risking an accident for himself and
posing a risk of arrest for the distributor. Moreover, if it had
attempted to make its distribution from this point, or from
the medians, jughandles and easements which were in, along-
side of or at the junction of the two roads, where charitable
solicitations have taken place, the Union would not have
been able to distinguish between those shoppers going to
Sears and those going elsewhere.
C. Sears and Macomb Mall
1. The properties
Macomb Mall is located in Roseville, Michigan, bounded
by Masonic Boulevard on the south, Beaconsfield on the
west, and Gratiot Avenue on the east. Gratiot is a divided
multilane thoroughfare, with a 35-mile-per-hour speed limit,
with one entrance into Sears’ parking lot just north of the
junction of Gratiot and Masonic. There is a traffic light and
jughandle at that entrance. Two additional entrances to the
mall’s parking lot, further away from the Sears store, also
come off of Gratiot. There are three entrances to the Sears
parking lot off of Masonic, a 30-mile-per-hour roadway,
none of which are protected by traffic lights, and two off of
Beaconsfield, one of which enters upon the Sears lot and an-
other which goes into the mall’s lot further north. There are
bus stops in the mall parking lots and another along Gratiot.
About 40 percent of drivers heading into the Sears lot use
the first entrance on Gratiot with the balance divided roughly
839OAKLAND MALL
5 It is immaterial whether he delivered the envelope to Nancy Lamphear, as
he testified he had done, or to Janet Lewis or Debbie Eavers as Lamphear’s
testimony would indicate. All three had authority to order the Union not to
handbill without completing the Mall’s application requirements.
evenly among the other entrances. The mall is surrounded by
a public easement, 15 to 20 feet wide and hard surfaced,
which is maintained by the city.
Macomb Mall consists of an enclosed structure of approxi-
mately 940,000 square feet, surrounded by acres of parking
lot. Sears, the largest store in Macomb Mall, and the mall
itself, were built and opened for business simultaneously. In
addition to Sears, the mall contains 1 or 2 smaller depart-
ment stores and about 90 specialty shops, occupying leased
space. The department stores are at the ends of the mall’s
street-like aisles along which are the specialty shops.
The entire mall, including Sears, is open to the public 362
days a year, for substantial portions of each day. Sears hours
are slightly longer than those of the other stores in the mall.
Sears owns and controls the property on which it sits,
from the mall entrance to the easements around its parking
lot. Sears’ parking lot holds about 1500 cars and, according
to Sears’ witnesses, Sears shoppers tend to be single item
shoppers who park and enter nearest the department in which
they intend to shop. Macomb Mall’s parking lot holds about
4600 cars. Sears shoppers are not precluded from parking in
the Mall’s lot and entering the mall through any of its doors.
Conversely, customers for other stores may park in Sears’ lot
and enter through Sears.
About 20 percent of Sears customers enter that store from
the mall. The remainder enter from the sidewalk around
Sears through doors into the various departments. These en-
trances vary from single door width at the automotive depart-
ment, to double doors into the catalogue, optical/financial,
and sporting goods departments, with a four-door-wide en-
trance to the women’s wear department. The mall entrance
is wide enough for several people to enter or leave, side by
side.
2. No-solicitation rules
As at Oakland Mall, Sears has a no-solicitation rule in ef-
fect at Macomb Mall and signs, identical to those at Oakland
Mall, are posted at each entrance. At the time of these
events, several of the permanent signs may have come down
and been replaced by temporary signs in the vestibules. Sears
rigidly enforces this rule at Macomb Mall, not even allowing
Christmas bell-ringers on its property.
Macomb Mall also has a policy with respect to nontenant
activities, including solicitations, petitioning, and vending.
That policy requires that an interested organization first com-
plete an application describing the activity, sign both a
‘‘Hold Harmless & Indemnification Agreement’’ and an
agreement to abide by the rules established for such activi-
ties, and provide a certificate of insurance establishing that
Macomb Mall has been named as an additional insured under
a liability policy carrying a minimum coverage of $500,000
for each occurrence of bodily injury. Similar insurance is re-
quired of the mall tenants. After meeting these requirements,
numerous organizations have held shows, exhibits, and fund-
raisers in the mall.
Sheldon Peven, Macomb Mall’s insurance consultant, re-
views the Mall’s insurance requirements and the policies pro-
vided under it. He testified that he deems this to be an advis-
able practice for the Mall, one which the Mall has histori-
cally required, in order to protect the mall and its tenants
from liability arising from accidents and altercations. In addi-
tion to securing insurance coverage, Macomb Mall uses the
application procedure to schedule events and avoid conflicts.
The policy has uniformly been required of all outside groups,
including those making charitable solicitations or educational
presentations.
3. Handbilling at Sears at Macomb Mall
The Union began handbilling Sears at Macomb Mall on
August 9. The handbilling continued on the morning of Au-
gust 10, with handbillers at the interior mall entrance and at
exterior entrances on all three sides of the Sears store. The
handbilling at the customer service entrance, one of the
busier doors, was observed by the store’s manager, Gary
Crawford, who directed Margaret Lauretti, the loss preven-
tion supervisor, to exclude them. She told the two men at
that door that they were on private property and would have
to leave or the police would be called. They left. However,
when similar instructions were given to handbillers at other
doors, they refused to leave. Sears called the local police and
the handbillers left when ordered to do so under threat of ar-
rest. The Union returned about September 7 and resumed
handbilling at the mall entrance and at several of the exterior
doors. Once again, Sears’ supervisors or managers ordered
them to vacate Sears’ property and called the police when
the handbillers refused. The police, threatening arrest, or-
dered them to leave and the Union complied.
When ordered by the police to leave Sears’ property,
Gregory Lowran, the Union’s business representative, asked
where their activity would be permissible. He was told that
they could go to the easements around the property. How-
ever, the police told him, if the handbillers went off the ease-
ment and handbilled in the street, they would be arrested for
obstructing traffic. The Union left and has not attempted to
handbill at Sears in Macomb Mall since early September.
4. Handbilling in Macomb Mall
As noted above, the Union commenced its handbilling ac-
tivity at the Sears store in Macomb Mall on August 9, with
several handbillers on mall property at the Sears entrance and
others on Sears’ property outside the Mall. During the course
of that activity, the handbillers who had been at the mall en-
trance were told to stop their distribution. They called
Lowran and reported that someone from the Mall had said
they needed permission in order to continue. He directed
them to disregard the order and continue, which they did for
a brief period longer, until they ran out of bills.
Upon hearing from the handbillers, Lowran called
Macomb Mall’s office. Speaking with Janet Lewis, secretary
to mall manager Nancy Lamphear, he asked whether permis-
sion was required to handbill in Macomb Mall. According to
Lowran, she replied that he would have to send Lamphear
a letter stating the Union’s request. On August 10, Arthur
Brown, one of the former Ryder employees, delivered a letter
to the office, ‘‘requesting permission to handbill all the
Sears’ entrances at the Macomb Mall.’’ When he delivered
it, he was told about an insurance requirement.5 Brown
called Lowran and related what he had been told about insur-
ance.
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Macomb Mall’s representatives testified that, while the written instructions
only required a $500,000 liability policy, it was their practice to orally state
that $1 million coverage was required.
7 Peven, the Mall’s insurance consultant, testified in response to the adminis-
trative law judge’s questions that a liability policy such as the Union might
carry would generally cover its entire operation. The Union should have been
able to get the necessary rider or certificate covering a third party for a fairly
nominal cost, at least if the activity was to last for only a few days. Most
insurance agents, he said, would be aware of the procedure. It was conceiv-
able, he acknowledged, that the Union’s policy might not provide such cov-
erage. In that case, a separate policy would be more expensive. No other wit-
nesses with any experience in the insurance industry were proffered by any
of the parties.
Lowran immediately called the Mall’s office and was told
by Lewis that the Union could not handbill until it completed
the application form and gave the Mall proof of a $1 million
insurance policy. He asked to speak to someone higher up
and was referred to Joe Thomas, property manager for
Shostak Bros., managing agent for Macomb Mall. Lowran
next received a call from his handbillers, reporting that the
police had come, ordered them off the property and prohib-
ited them from placing their bills on cars in the parking lot.
Lowran told them to comply with the police orders in order
to avoid arrest.
Lowran called Thomas on August 10 or 11, asserted the
Union’s right to handbill and questioned the insurance re-
quirement. Thomas explained that everyone coming into the
Mall to sell, display, or solicit was required to complete the
application form and have a $1 million liability policy. If
they fulfilled these conditions, Thomas stated, the Union
could distribute its handbills and place them on cars in the
parking lot. On August 11, Lowran received a set of
Macomb Mall’s application forms. At some point, he also re-
ceived a small sheet of blue paper, detailing the insurance re-
quirements at levels one-half of what he had been told was
required.6
Lowran made several calls to union officers and to the
Union’s insurance representative and, he testified, was unable
to secure the necessary insurance. He was told that no such
insurance was available.7 On August 26, he submitted the
completed application, together with the signed regulations
and the ‘‘Hold Harmless Agreement.’’ He did not submit
proof of the required insurance.
The Union’s last attempt to handbill at Macomb Mall oc-
curred on approximately September 7. Ryder employee
Brown handbilled in the Mall at the Sears entrance for about
1-1/2 hours. He left when the police came. On that same
date, Lowran was ordered to stop handbilling by a Macomb
Mall security officer and by personnel in the Mall’s office.
He was also given another application package and it was
made clear to him that the Union could handbill and place
the handbills on cars in the parking lot if the entire applica-
tion procedure, including the insurance requirement, was sat-
isfied.
5. The Union’s alternatives
According to Gary Crawford, Sears’ store manager at
Macomb Mall, most Sears shoppers enter the store to pur-
chase a single item, parking closest to the department carry-
ing that item. Moreover, he testified, 40 percent of Sears
shoppers at Macomb Mall enter the parking lot at the first
driveway off of Gratiot where both north and south bound
cars can turn in. Crawford also testified that he has observed
charitable solicitations being made from the easement around
the parking lots. Thus, he contended, that easement afforded
ample opportunity for the Union to distribute its handbill
without entering upon Sears’ property.
The Union did not attempt to handbill from the easement
or the medians in the abutting roads. They did not do so,
Lowran testified, because the police had threatened them
with arrest if they went into the roadways and obstructed
traffic. Additionally, he noted, a handbiller standing on the
easement would be on the passenger side of any passing car,
the traffic was heavy and moved at high speeds, and a car
containing a Sears customer could not be distinguished from
one containing shoppers destined for other stores.
D. Analysis
1. The analytical framework
In Fairmont Hotel, 282 NLRB 139 (1986), the Board had
announced a new test for access cases. Pursuant to that test,
the strength of the Section 7 rights being claimed would be
weighed against the strength of the property right involved,
with the stronger right prevailing. Only where those rights
were relatively equal in strength would the availability of al-
ternative means of communication become determinative. In
Jean Country, 291 NLRB 11 (l988), the Board considered
relevant precedent and its experience under Fairmont and
held that the ‘‘availability of reasonable alternative means of
communication must be considered in every access case, in
conjunction with a consideration of the Section 7 rights and
the property rights involved.’’ Target Stores, 292 NLRB 933,
934 (1989).
In Jean Country, the Board noted that its essential concern
in all access cases will be ‘‘the degree of impairment of the
Section 7 right if access should be denied, as it balances
against the degree of impairment of the private property right
if access should be granted.’’ Mountain Country Food Store,
292 NLRB 967 (1988). It identified numerous factors rel-
evant to assessing the relative weights of the competing
rights and the availability of alternative means.
Thus, the Board noted that included among the factors rel-
evant to weighing the property rights are ‘‘the use to which
the property is put, the restrictions, if any, imposed on public
access to the property, and the property’s relative size and
openness.’’ ‘‘[D]enial of access,’’ the Board stated, ‘‘will
more likely be found unlawful when property is open to the
general public than when a more private character has been
maintained.’’
Relevant to consideration of the Section 7 right, the Board
held, is ‘‘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 communica-
tions concerning Section 7 rights are directed, and the man-
ner in which the activity related to that right is carried out.’’
Finally, the Board noted that ‘‘the desirability of avoiding
the enmeshment of neutrals in labor disputes, the safety of
attempting communications at alternative public sites, the
burden and expense of nontrespassory communication alter-
natives, and most significantly, the extent to which exclusive
use of nontrespassory alternatives would dilute the effective-
841OAKLAND MALL
ness of the message’’ are among the factors to be considered
in evaluating alternative means.
These factors are, to a certain extent, interdependent, and
a given factor may be relevant to more than one inquiry.
‘‘[T]here is no simple formula . . . .’’ Jean Country, supra
at 14.
2. The property rights
a. Sears
Sears, as owner of its own properties, unquestionably has
legitimate property interests. In furtherance of those interests,
the properties are posted against solicitations and distribu-
tions and Sears enforces those restrictions as against virtually
all those who would engage in such activities. The non-
discriminatory enforcement of such rules tends to make
Sears’ property interests more substantial that those of a
similarly situated retail enterprise without any restrictions.
Target Stores, supra.
However, since Sears maintains large stores surrounded by
sidewalks for the use of the general public, invites the gen-
eral public to enter upon its property through any of a num-
ber of adequately sized entrances, whether to shop, browse
the merchandise or simply to pass through on the way to
other stores, and permits anyone to drive through its ample,
open parking lots from multiple unrestricted entrances and
park thereon, whether shopping at Sears or elsewhere in the
malls, its property interests are less substantial than those of
an employer in a more private nonretail setting. Target
Stores, id. at 935. Cf. L & L Shop Rite, 285 NLRB 1036
(1987), where a supermarket in a small shopping center,
sharing the parking lot with several other stores, but impos-
ing no restrictions on access to the parking lot or the side-
walk in front of its store, was held to have only a limited,
relatively modest, property right. But cf. Sisters Chicken &
Biscuits, 285 NLRB 796 (1987), where the owner of a free
standing single facility with its own parking lot provided for
the convenience of its customers was held to have a substan-
tial private property interest.
b. Oakland Mall
Like Sears, Oakland Mall has established a legitimate
property interest in the mall and surrounding parking lot. Its
property right, however, is a relatively weak one. Thus, the
Mall covers a large area, consists of approximately 140
stores, and is open to the public 7 days per week for substan-
tial portions of each day. With wide, tree and bench lined
walkways, numerous entrances, ample parking and other
public access, it is intended to attract and attracts large num-
bers of people each day; indeed, the success of the retail en-
terprises to whom it leases space is dependent upon it doing
so. There is no evidence that Oakland Mall imposes restric-
tions upon the use of the property; no reference was made,
either when the Union sought permission to handbill or at
hearing, to any no-solicitation or no-distribution rules. As in
Jean Country, the mall has intentionally been given certain
quasi-public characteristics which ‘‘tend to lessen the private
nature of the property, because it is apparent that the public
is extended a broad invitation to come on the property, and
not necessarily with the specific purpose of purchasing a par-
ticular product or service.’’
c. Macomb Mall
The only distinctions between Macomb and Oakland Malls
are Macomb Mall’s nondiscriminatory maintenance of a re-
quirement that exhibitors, solicitors and the like complete an
application, sign ‘‘hold harmless’’ agreements and provide
proof of substantial insurance designating the mall as an ad-
ditional insured party, and the evidence that Macomb Mall
has permitted a wide range of outside nonretail activities to
occur in the Mall. In all these characteristics, Macomb Mall
operates in essentially the same manner as Brook Shopping
Center, the mall in which Jean Country was located. The
Board found Brook to have only a weak property right;
Macomb Mall’s is no stronger.
3. The Section 7 right
The Union’s handbilling was directed at Sears’ customers,
not its employees, and had no organizational objectives. Nei-
ther did it purport to protest any unfair labor practice by
Sears or to apply economic pressure upon Sears or any other
employer with whom it was engaged in ongoing collective
bargaining. It was not, therefore, primary union activity con-
stituting a core Section 7 right. See Sears Roebuck & Co. v.
San Diego County Council of Carpenters, 436 U.S. 180, 206
fn. 42 (1978); W. S. Butterfield Theatres, 292 NLRB 30, 32–
33 (1988).
On the other hand, the handbilling was directed at securing
the reemployment of the Union’s members and the
handbilling sought to apply pressure at the fulcrum of the
dispute, Sears, whose actions, directly or indirectly, brought
about their unemployment and could similarly bring about
their reemployment. It was somewhat akin to the ‘‘struck
product’’ consumer handbilling recognized by the Supreme
Court in NLRB v. Fruit Packers Local 760, 377 U.S. 58
(1964), as a protected activity and found by the Board in
Mountain Country Food Store, supra, to be a relatively
strong Section 7 right. At the very least, such handbilling
stands on the same footing as the area standards activity in-
volved in both Jean Country and Target Stores, not at the
stronger end of the ‘‘spectrum’’ of Section 7 rights, but most
certainly valid Section 7 rights, worthy of protection against
substantial impairment. Moreover, those members whose jobs
were at stake personally participated in the handbilling and
the handbillers were limited in number, peaceful and
unobstructive. By handbilling at the entrances to Sears, they
remained in close proximity to Sears’ customers so that it
can be said that ‘‘the Union could not have more carefully
restricted its activities to reach the intended audience while
not disturbing others.’’ Target Stores, supra at 935. Nothing
the handbillers did diminished the strength of their Section
7 right.
4. The Union’s alternatives
Turning finally to the third factor in the equation, I must
conclude that, contrary to the contentions of Respondent
Sears, the Union had no reasonable alternatives, under the
circumstances, to conducting its handbilling at the Sears’ en-
trances, on Sears’ property or on the property of Macomb
Mall, immediately adjacent to the Sears entrance.
Sears suggests that the Union could have handbilled from
the public easements around its properties, particularly at the
driveway entrances. Had they done so with any hope of
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If my Order with respect to Respondent Sears is ultimately upheld and
compliance therewith is secured, or if Sears voluntarily concedes the Union’s
right to handbill on its property, the fact that Sears owns 12 feet of property
into the mall from which the handbilling could take place might obviate Oak-
land Mall’s obligation to permit the Union’s presence on its property.
being at all effective, the handbillers would have been re-
quired to step into the street to deliver their message to the
drivers’ sides of the cars and would simultaneously have re-
quired most of those drivers to at least slow down to receive
the handbill. Given the prevailing speed limits and the
amount of traffic the surrounding roads carry, this would
have posed both a serious safety hazard at virtually all of the
points where the activity would have had to take place and
a very real risk of arrest for obstruction of traffic, as the
Union was expressly warned by the police at each mall.
Had the handbillers refrained from stepping into the
streets, they would have been unable to reach most cars, at
least from the public easements, as they would have been
standing on the passenger side of any passing vehicle. They
would also have been unable to explain their situation to po-
tential Sears shoppers, rendering their message less effective.
In this regard, I note that the Union’s message was fairly de-
tailed, certainly more complex that ‘‘nonunion’’ or ‘‘on
strike,’’ and required some explication by the handbillers.
Moreover, even assuming that the message was readily un-
derstandable by reading the handbill, the Union could not
have communicated it to passing motorists from a picket sign
placed on the periphery of the property without substantial
fear that it would have been subjected to unfair labor practice
charges.
Sears shoppers may, indeed, be single item shoppers and
65 percent of them at Oakland Mall may enter through en-
trances numbers one and two, off of 14 Mile and John R,
respectively. However, entrance number one is the property
line between Sears and the Oakland Mall and clearly would
be a main entrance for mall shoppers as well as those des-
tined for Sears. Even if the Union could safely, effectively
and without fear of arrest have handbilled from public prop-
erty abutting those two entrances (all of which is doubtful),
it would have been unable to communicate verbally with the
shoppers and would have missed 35 percent of the auto traf-
fic going into Sears as well as the 20 percent which enters
through the Mall, substantially diluting its message. It would
also have enmeshed a substantial number of mall shoppers
in the dispute.
Similarly, had the Union sought to handbill from public
property alongside the two busiest entrances to Sears at
Macomb Mall, it would have reached, at best, 40 percent of
the cars entering the Sears’ lots, missing 60 percent plus all
those customers (20 percent) who enter from the mall. It
would also have been unable to distinguish Sears shoppers
from those going elsewhere in the mall and would, nec-
essarily have enmeshed mall shoppers in its dispute.
The Union did not attempt to handbill from the public
easements surrounding each of the malls. It was not required
to attempt that which simple observation and common sense
indicates would be, as I find, both fruitless and dangerous.
Emery Realty Inc. v. NLRB, 863 F.2d 1259 (6th Cir. 1988).
E. Conclusions
1. Sears
Sears’ property interests are not insubstantial; they are less
than those of an employer in a more private nonretail setting
but somewhat greater than those of a shopping center occu-
pant who has not posted his own property with no-solicita-
tion rules. Here, those interests are balanced against similarly
substantial Section 7 rights and the absence of reasonable al-
ternative means for the Union to exercise those protected
rights. Applying the Jean Country analysis, I must conclude
that those property interests are required to yield to the ex-
tent necessary to permit the Union’s peaceful, limited, and
unobstructive handbilling at the mall and other store en-
trances. Sears refusal to permit such handbilling on its prop-
erty, I find, violates Section 8(a)(1) of the Act.
2. Oakland Mall
Oakland Mall contends that, even if I find ( as I have) that
it refused to allow the Union to handbill on its property, no
violation can be found inasmuch as the Union had a reason-
able alternative for effective communication, handbilling
within the bounds of Sears’ property both at the mall en-
trance and outside Sears’ store.
I would find this argument persuasive if the Sears property
was clearly marked instead of being held out as mall prop-
erty, if the Mall’s representatives had made clear where that
property line was, and if the Union had not been threatened
with arrest for handbilling on Sears’ property. The key under
Jean Country, id. at 14, is a the ‘‘availability of a reasonably
effective alternative means’’ of communication. Given the
lack of a clear delineation of property lines and Sears’ re-
fusal, albeit unlawful, to allow handbilling on its property, I
must find that, at that time, the Union had no reasonably ef-
fective alternative avenues of communication to the Sears
customers other than handbilling on Oakland Mall’s property
in the vicinity of the mall entrance to Sears.8 Accordingly,
I find that by rejecting the Union’s request for permission to
handbill at the Sears entrance in the mall, Respondent Oak-
land Mall violated Section 8(a)(1) of the Act.
Oakland Mall also rejected, or at least strongly discour-
aged, the Union from placing handbills on the windshields
of cars on its parking lots. Given that these lots were not ad-
jacent to the Sears store, that far more mall customers than
Sears shoppers would be the recipients of such a distribution,
that the ‘‘Don’t Shop at Sears’’ message would reach shop-
pers on their way out, when it would be less effective than
if it had been received before the shopping was completed,
and given the anticipatable littering problem, I do not find
this prohibition to have been unlawful.
3. Macomb Mall
Respondent Macomb Mall asserts that it did not prohibit
the Union from handbilling. Rather, it merely insisted that
before the Union do so, it meet the standards nondis-
criminatorily applied to all nontenant events. This, it argues,
it had a right to do in the interests of providing a shopping
environment conducive to shopper interest and comfort and
protecting third parties from potential injury by outside enti-
ties.
General Counsel points out that, as noted above, Brook
Shopping Center in which Jean Country was located had a
similar requirement. In the context of seeking to limit union
picketing in the event that it was to be determined that Jean
843OAKLAND MALL
9 I am satisfied that the Union made an adequate effort to comply with the
Mall’s insurance requirement and found it burdensome. I do not believe that
it can be required to engage in lengthy, fruitless and/or expensive searches for
the coverage demanded as a condition of exercising statutory rights.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
11 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
Country and Brook had committed unfair labor practices by
prohibiting the union’s picketing in the mall, Jean Country
requested that the Union be required to post maintenance and
insurance bonds before resuming picketing. The Board de-
nied Jean Country’s request, stating:
Respondent Jean Country additionally requested that
the Union be required to post maintenance and liability
insurance bonds prior to picketing in the mall, implic-
itly relating the conduct of the Union’s picketing to the
conduct of the annual charity and arts and crafts fairs
. . . We see a significant difference between the fairs,
where between 40 and 75 tables are set up for the sale
of merchandise and raffle tickets, and the limited pick-
eting in this case. We also note the absence of any rea-
sonable supporting rationale offered by the Respondent
for restraining Sec. 7 activity in this way, and we can
conceive of none. Accordingly, we deny the Respond-
ent’s request. [Jean Country, supra at 19 fn. 21.]
This conclusion is at least equally applicable to the instant
situation where the Union sought to engage in handbilling,
a less confrontational activity than picketing. I note, in this
regard, that most of the events held at the mall during 1988
and subjected to the insurance requirement involved shows,
displays, information centers, merchandise sales, and fund
solicitations, all appearing to involve more people, blocking
of the aisles and equipment than the Union’s handbilling.
Similarly, I note that while Macomb Mall’s insurance con-
sultant recommended and approved of the Mall’s require-
ments, no substantial justification was offered. The possibil-
ity someone might trip over a handbiller or become so in-
censed that he or she would start a fight is remote, not sig-
nificantly greater than the risk of similar incidents occurring
between any two shoppers in the mall. Neither such remote
risks nor the mall’s desire to create a serene setting for the
mall tenants’ commercial enterprises, warrants such a bur-
den9 being imposed upon the exercise of Section 7 rights,
particularly in light of Macomb Mall’s relatively weak prop-
erty interest. Accordingly, I find that by prohibiting the
Union from handbilling at the Sears entrance in Macomb
Mall unless it adduced proof of insurance coverage naming
Macomb Mall as an insured party, Macomb Mall has vio-
lated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By demanding that the Union cease or refrain from en-
gaging in protected handbilling activity on their properties,
and by threatening them with arrest if the handbilling activi-
ties continued Respondents Sears and Oakland Mall have
violated Section 8(a)(1) of the Act.
2. By imposing unreasonable restrictions on the Union’s
handbilling activities on its property, Respondent Macomb
Mall has violated Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondents have not violated the Act in any other
manner alleged in the complaints.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they be or-
dered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondents, Sears, Roebuck and Company, of Troy
and Roseville, Michigan, Macomb Mall Associates, a limited
partnership, of Roseville, Michigan, and Oakland Mall, Ltd.,
of Troy, Michigan, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Prohibiting representatives of Local 243, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO from peacefully handbilling
at the entrances to the Sears, Roebuck and Company stores
in the Oakland Mall and Macomb Mall, in Troy and Rose-
ville, Michigan, respectively, or imposing unreasonable bur-
dens upon the Union’s exercise of its right to engage in
peaceful handbilling at those locations.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Respondent Sears, Roebuck and Company shall post at
its stores in Oakland Mall and Macomb Mall copies of the
attached notice marked ‘‘Appendix A.’’ Respondent Oakland
Mall shall post at its office in Oakland Mall copies of the
attached notice marked ‘‘Appendix B.’’ Respondent Macomb
Mall shall post at its office in Macomb Mall copies of the
notice marked ‘‘Appendix C.’’11 Copies of the notices, on
forms provided by the Regional Director for Region 7, after
being signed by each Respondent’s authorized representative,
shall be posted by each Respondent immediately upon re-
ceipt 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
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.
844 DECISIONS OF THE NATIONAL LABOR RELATIONS 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT prohibit representatives of Local 243, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO from peacefully en-
gaging in protected concerted activity by demanding that
they not distribute handbills at the entrances to the Sears,
Roebuck and Co. store, by threatening them with arrest if
they remain on the property of Sears, Roebuck and Co., or
by asking the police to arrest them if they do not leave.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
SEARS, ROEBUCK AND CO.
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 ordered us
to post and abide by this notice.
WE WILL NOT prohibit representatives of Local 243, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO from engaging in
peaceful protected concerted activity by demanding that they
not distribute handbills at the entrances to the Sears, Roe-
buck and Co. store in Oakland Mall, by threatening them
with arrest if they remain on the property of Oakland Mall,
or by asking the police to arrest them if they do not leave.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
OAKLAND MALL, LTD.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to post and abide by the notice.
WE WILL NOT prohibit representatives of Local 243, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO from peacefully en-
gaging in the protected concerted activity of distributing
handbills at the mall entrance to the Sears, Roebuck and Co.
store by demanding proof of liability insurance or by insist-
ing that they leave the premises if they do not provide proof
of such insurance.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
MACOMB MALL ASSOCIATES, A LIMITED
PARTNERSHIP