Oakland Mall

National Labor Relations Board - Board Decisions

Apr 12, 1995

316 N.L.R.B. 1160 (N.L.R.B. 1995)

1160
316 NLRB No. 173
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 502 U.S. 527 (1992).
3 Respondents Sears and Macomb Mall filed exceptions (with sup-
porting briefs) to the judge’s decision, and the General Counsel filed
an answering brief. Respondent Oakland Mall did not file exceptions
or a brief.
4 304 NLRB 832.
5 Statements of position were submitted by the General Counsel,
the Charging Party Union, and Respondents Sears and Macomb
Mall. Additionally, amicus curiae briefs were submitted to the Board
by the American Federation of Labor and Congress of Industrial Or-
ganizations (AFL–CIO), the Chamber of Commerce of the United
States of America (Chamber of Commerce), the National Retail Fed-
eration (NRF), and the Council on Labor Law Equality (COLLE).
6 316 NLRB 123 (1995).
7 As noted above, Respondent Oakland Mall did not file excep-
tions to the judge’s finding that it violated the Act. Consequently,
the allegations against Respondent Oakland Mall, and the violations
found on the basis of them, are not before the Board.
Oakland Mall, Ltd. and Sears, Roebuck and Co.
and Local 243, International Brotherhood of
Teamsters, AFL–CIO1
Macomb Mall Associates, a Limited Partnership
and Sears, Roebuck and Co. and Local 243,
International Brotherhood of Teamsters, AFL–
CIO. Cases 7–CA–28367 and 7–CA–28446
April 12, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
This is the first occasion for us to consider how the
Supreme Court’s opinion in Lechmere, Inc. v. NLRB2
affects a secondary employer’s right to bar nonem-
ployee union representatives from engaging in second-
ary consumer boycott handbilling on the employer’s
private property. The narrow issues before us are (1)
whether Respondent Sears, Roebuck and Co. (Sears)
violated Section 8(a)(1) of the Act by prohibiting such
handbilling at the public entrances to its stores at both
the Oakland and Macomb Malls, and (2) whether Re-
spondent Macomb Mall violated Section 8(a)(1) of the
Act by prohibiting such handbilling at the interior
(mall) entrance to the Sears’ store in Macomb Mall un-
less the Union first obtained a $500,000 liability insur-
ance policy naming Macomb Mall as an additional in-
sured party.
I. PROCEDURAL BACKGROUND
On June 2, 1989, Administrative Law Judge Michael
O. Miller issued the attached decision in this case, in
which he applied the framework for analysis set forth
in Jean Country, 291 NLRB 11 (1988), for issues in-
volving denial of nonemployee access to employer
property, and found that the Respondents had violated
the Act.3
On August 27, 1991, the Board issued a Decision
and Order in this case, Oakland Mall I,4 affirming the
judge’s findings and conclusions. Thereafter, Respond-
ents Sears and Macomb Mall filed petitions for review
of the Board’s Decision and Order in the United States
Court of Appeals for the District of Columbia Circuit,
and the Board filed a cross-application for enforcement
of its Order.
On January 27, 1992, the Supreme Court issued its
opinion in Lechmere, holding that the Board’s bal-
ancing test in Jean Country, as applied to the non-
employee union organizers in that case, was inconsist-
ent with controlling Supreme Court precedent. There-
after, the Board and Respondent Sears filed a joint mo-
tion with the court of appeals to dismiss without preju-
dice the Respondents’ petitions for review and the
Board’s cross-application for enforcement, and to re-
mand the case to the Board for reconsideration in light
of Lechmere. The joint motion was granted, and the
Board notified the parties that they could submit state-
ments of position to the Board on the issues raised by
the Board’s reconsideration of the case.5
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On reconsideration of Oakland Mall I in light of
Lechmere, the statements of position of the parties, the
briefs of the amici curiae, and our recent decision in
Leslie Homes, Inc.,6 we have decided to overrule cer-
tain of our unfair labor practice findings in Oakland
Mall I and to dismiss those allegations against Re-
spondents Sears and Macomb Mall.7
II. FACTS
The facts are fully set out by the judge in the at-
tached decision. They are essentially as follows.
The Union’s primary dispute was 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 solely at Sears’ cus-
tomers at the Sears’ stores in the Oakland and
Macomb Malls, in Troy and Roseville, Michigan, re-
spectively. The handbillers were mostly former Ryder
employees; none were employees of any of the Re-
spondents. There were no signs carried or displayed
and there was no picketing. There is no evidence that
the handbillers attempted to prevent any customers
from entering the stores. The handbills, which urged
Sears to once again contract with Ryder so that the
Union’s members could regain jobs as Ryder drivers
delivering for Sears, contained the following message:
1161OAKLAND MALL
8 Oakland Mall itself also denied the handbillers’ permission to
handbill anywhere on mall property, including at the mall entrance
to the Sears’ store. The judge found that Oakland Mall violated the
Act by doing so, and, as noted above, there were no exceptions to
that finding.
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 addition to distributing the handbills, the former
Ryder employees asked customers to speak on their
behalf to Sears’ management.
A. Oakland Mall
Sears occupies Oakland Mall along with 3 other
major department stores and 140 specialty shops.
There is a single, wide interior entrance into Sears
from inside the mall, and eight exterior entrances with
double or quadruple doors from the sidewalk surround-
ing Sears. Sears owns its store building and surround-
ing sidewalks, the mall area adjacent to the mall en-
trance (extending 12 feet into the mall area), and a
3000-car parking lot adjacent to the store. The parking
lot extends several hundred feet to paved or grass-cov-
ered public easements, about 12 to 20 feet wide, sur-
rounding the lot, which themselves adjoin the six- and
four-lane thoroughfares bordering the mall. Sixty-five
percent of Sears’ customers enter the Sears’ parking lot
through two of the five automobile entrances, and the
rest of the customers use the other three entrances
about equally. About 80 percent of Sears’ customers
enter the store through the eight exterior entrances.
The rest use the interior entrance from the mall.
No-solicitation/no-distribution signs are posted at the
exterior entrances, and these rules have been strictly
and uniformly enforced, with the only exception being
for a limited number of Salvation Army bell ringers at
Christmas time.
On August 2, 1988, Union Organizer Thomas
Ziembovic and about six laid-off Ryder employees
began to handbill the Sears’ store at the interior mall
entrance and at two exterior entrances, all of which
were on Sears’ property. Sears’ store manager, Mar-
shall Dyke, told the two handbillers at the mall en-
trance that they were not allowed to handbill and that
they were on Sears’ property. The handbillers left the
mall entrance. The handbillers at the other entrances
refused Dyke’s demand that they stop handbilling.
Dyke called the police. At Dyke’s request, the police
ordered the handbillers off Sears’ property. The police
told them that they could handbill on the public ease-
ment around the property, but that if they obstructed
traffic or refused to follow police orders, they would
be arrested.8 The handbillers did not attempt to hand-
bill cars at the public easement, and made no further
attempts to handbill Sears’ customers at Oakland Mall.
B. Macomb Mall
Sears occupies Macomb Mall along with 1 or 2
smaller department stores and about 90 specialty
shops. There is a single, relatively wide interior en-
trance into Sears from the mall, and about seven other
exterior entrances with single, double, or quadruple
doors from the sidewalk surrounding Sears. Sears owns
its store building and surrounding sidewalks and a
1500-car parking lot adjacent to the store. The parking
lot extends to hard-surfaced public easements, about 15
to 20 feet wide, surrounding the lot, which themselves
adjoin the multilane thoroughfares bordering the mall.
About 40 percent of Sears’ customers enter the lot
through one particular automobile entrance, and the
rest of the customers use the other seven entrances
about equally. About 80 percent of Sears’ customers
enter the store through the several exterior entrances.
The rest use the interior entrance from the mall.
No-solicitation/no-distribution signs are posted at
every entrance, and these rules have been strictly en-
forced, without exception. In addition to Sears’ no-
solicitation/no-distribution policy, Macomb Mall itself
also had a strictly enforced policy covering solicitation,
petitioning, and vending on mall property by nonten-
ants. Under that policy, nontenant organizations wish-
ing to engage in such activities on mall property are
required to complete an application describing the pro-
posed activity, sign both a ‘‘Hold Harmless and In-
demnification Agreement’’ and an agreement to abide
by the rules established for such activities, and provide
the mall with a certificate of insurance (similar to that
required of its commercial tenants) 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. After
meeting these requirements, numerous organizations
have held shows, exhibits, and fundraisers in the mall.
On August 9, 1988, the Union began to handbill at
several of Sears’ exterior entrances and at its interior
mall entrance (which was Macomb Mall property, un-
like the interior mall entrance at Oakland Mall, which
was Sears’ property for 12 feet into the mall area).
Mall management told the handbillers at the mall en-
trance to stop. The handbillers refused, and continued
until they ran out of handbills. The mall told the Union
it would have to comply with the above-described ap-
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 502 U.S. 527 (1992).
10 351 U.S. 105 (1956).
11 Hudgens v. NLRB, 424 U.S. 507, 522 (1976); Sears, Roebuck
& Co. v. San Diego County District Council of Carpenters, 436 U.S.
180, 206 (1978).
plication and insurance requirements in order to be
permitted to handbill on mall property. Ultimately,
however, the Union was unable to obtain such insur-
ance, and thus was never permitted to handbill on mall
property.
The next day, August 10, the Union again hand-
billed at the mall entrance and at several exterior en-
trances. Sears’ management told the handbillers that
they were on private property and would have to leave,
or Sears would call the police. The handbillers refused
to leave and Sears called the police. The police or-
dered the handbillers to leave Sears’ property, under
threat of arrest. The police told the handbillers that
they could handbill from the easements around the
parking lot, but that if they stepped off the easements
and handbilled in the street, they would be arrested for
obstructing traffic. The handbillers left without at-
tempting to handbill anywhere else. This sequence of
August 10 events was essentially repeated about a
month later, on September 7.
III. THE SUPREME COURT’S OPINION IN LECHMERE
In Lechmere, Inc. v. NLRB,9 the Supreme Court held
that Jean Country impermissibly recast as a ‘‘multifac-
tor balancing test’’ the general rule of NLRB v. Bab-
cock & Wilcox Co.10 permitting an employer to pro-
hibit nonemployee distribution of union organizational
literature on its property. 502 U.S. at 538. Babcock’s
holding, as reaffirmed in Lechmere, is that Section 7
does not allow nonemployee union organizers to come
onto private property except in the rare case where
‘‘the inaccessibility of employees makes ineffective the
reasonable attempts by nonemployees to communicate
with them through the usual channels.’’ Id. at 537.
Thus, ‘‘[i]t is only where such access is infeasible that
it becomes necessary and proper to take the accommo-
dation inquiry to a second level, balancing the employ-
ees’ and employers’ rights . . . .’’ Id. at 538 (empha-
sis in original).
IV. CONTENTIONS OF THE PARTIES
The General Counsel, Respondents Sears and
Macomb Mall, the Chamber of Commerce, NRF, and
COLLE contend that the Court’s interpretation of Bab-
cock in Lechmere applies to the nonemployees in this
case who were seeking access to the Respondents’
properties to engage in consumer boycott handbilling.
The General Counsel argues, however, that the Re-
spondents’ denial of access to their properties was un-
lawful even under the Babcock/Lechmere analysis be-
cause no reasonably effective alternatives existed for
the Union to communicate its message to the public.
The Respondents, the Chamber of Commerce, NRF,
and COLLE contend, on the other hand, that the Gen-
eral Counsel has failed to prove a lack of reasonable
alternative means.
The Union and amicus AFL–CIO argue that the
Babcock/Lechmere analysis involved organizational ac-
tivity and should not apply to protected consumer boy-
cott activity. More specifically, the Union argues that
the handbillers in this case, rather than being ‘‘non-
employees,’’ were in fact laid-off employees of Ryder,
and that they were thus not within the scope of the
permissible employer restrictions on nonemployee tres-
pass addressed in Babcock and Lechmere. The Union
argues further that the handbillers in this case, as ‘‘em-
ployees’’ within the meaning of the Act, were entitled
to its full protection, that state law property rights of
employers must yield to the extent necessary for ‘‘full
and complete operation of the rights of employees
under the Act,’’ that such employees are not obligated
to search for other reasonable, effective ways to exer-
cise their rights when the conduct they engaged in was
completely lawful and effective, and that therefore the
Board should not balance an employer’s nonstatutory
property interests with the statutory rights of employ-
ees.
The AFL–CIO argues that where, as here, employ-
ees covered by the Act seek to engage in protected
concerted activity on the property of a person other
than their own employer, the Board should either con-
tinue to apply the Jean Country accommodation analy-
sis or, preferably, apply a rule of law assertedly based
on the rationale of the Supreme Court’s opinions in
Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945), and Eastex, Inc. v. NLRB, 437 U.S. 556
(1978): i.e., that employer actions prohibiting the exer-
cise of direct Section 7 rights on the employer’s prop-
erty constitute an illegal interference with those rights
unless the employer has an adequate business justifica-
tion for the prohibition, involving more than just the
bare invocation of property rights.
V. DISCUSSION
In Leslie, supra, the Board considered the impact of
Lechmere on nonemployee, area standards activity.
After reviewing Lechmere and related Court prece-
dent,11 the Board concluded that the Court intended
the Babcock accommodation analysis to apply in non-
organizational settings. Accordingly, the general rule is
that an employer may prohibit nonemployees from
gaining access to its private property to engage in area
standards activities. No balancing of employee and em-
ployer rights is appropriate unless the union can first
demonstrate that it lacks reasonable access to the em-
ployer’s customers outside the employer’s property.
For the reasons fully set forth in Leslie, we find that
1163OAKLAND MALL
12 We therefore do not rely on the judge’s assessment of the rel-
ative strengths of the property and Sec. 7 rights asserted by the par-
ties.
We find that the handbillers are ‘‘nonemployees’’ in this context
because they were neither employees of any of the employers whose
property interests are at issue in this case nor employees with any
rights to enter the property in the course of their employment under
a subcontract. Cf. Southern Services, 300 NLRB 1154 (1990), enfd.
954 F.2d 700 (11th Cir. 1992) (Republic Aviation governs the orga-
nizing activities of cleaning subcontractor’s employees which took
place on private premises that were the employees’ regular and ex-
clusive worksite).
13 As in Leslie, we assume, without deciding, that the Lechmere
analysis affords the possibility of an exception permitting access to
private property for nonemployee consumer boycott activity if a
union can prove that an employer’s customers are not reasonably ac-
cessible by nontrespassory methods.
We recognize that here, unlike in Lechmere and Babcock, the
Union is not seeking to represent employees, but in fact already rep-
resents the former Ryder employees and is seeking to exert pressure
to restore their jobs by persuading Sears to recontract with Ryder.
We do not see that as a reason for not applying the general rule of
Lechmere/Babcock. The fact remains that the Union represents no
employees who have a present connection to any employer with an
interest in the property or employees who have any claim to having
been unlawfully terminated by such an employer. The
Lechmere/Babcock general rule, as well as its inaccessability excep-
tion, would indisputably apply were the Union to seek to organize
the employees of Leaseway, who are now performing the work for-
merly contracted to Ryder. But the Union has expressed no such in-
tent. Because Sears is a neutral with respect to the labor relations
of independent contractors such as Leaseway and Ryder, pressure on
Sears to cease doing business with Leaseway and recontract with
Ryder is secondary pressure. It would be anomalous to permit great-
er leeway respecting trespass for this kind of activity than for the
primary activity of organizing a property owner’s own employees.
14 Like area standards handbilling, secondary consumer boycott
handbilling is a less favored Sec. 7 right under the Babcock analysis.
See, e.g., Sears, Roebuck & Co. v. San Diego County Council of
Carpenters, 436 U.S. 180 (1978); Federated Department Stores, 294
NLRB 650, 651–652 (1989); Hardee’s Food Systems, 294 NLRB
642, 643 (1989), affd. sub nom. Laborers Local 204 v. NLRB, 904
F.2d 715 (D.C. Cir. 1990); Best Co., 293 NLRB 845, 847 (1989).
the Babcock accommodation analysis, and the general
rule articulated above, also apply to the nonemployee
consumer boycott activities in the instant case.12
We turn then to the question of whether the General
Counsel has proven that the Union had no reasonable
alternative means of communicating with Sears’ cus-
tomers.13 In Lechmere, the Court stated that the Bab-
cock exception requiring access to private property by
nonemployee organizers applied only in rare situations
where a union confronts ‘‘unique obstacles’’ to non-
trespassory communications, as when the location of a
plant and the living quarters of employees ‘‘isolated
[them] from the ordinary flow of information that char-
acterizes our society.’’ 502 U.S. at 540. The Court em-
phasized that the union’s burden of proving the excep-
tion is a heavy one, which cannot be satisfied ‘‘by
mere conjecture or the expression of doubts concerning
the effectiveness of nontrespassory means of commu-
nication.’’ Id.
In accordance with that approach dictated by the
Court, we need not exhaustively analyze the feasibility
of every conceivable means by which a union might
communicate its message to an audience, so long as
there is at least one possible means, and the General
Counsel has put on no evidence at all that that means
is not feasible. We therefore do not undertake here the
task of analyzing the feasibility of handbilling while
standing on easements around the parking lots or on
public property at the mall perimeter, because we find
that the General Counsel has failed to show that var-
ious means of mass communication were not an avail-
able means of presenting the Union’s message to po-
tential customers of Sears.
In this regard, we acknowledge that in Jean Coun-
try, the Board noted that ‘‘generally it will be the ex-
ceptional case where the use of newspapers, radio, and
television will be feasible alternatives to direct con-
tact.’’ 291 NLRB at 13. However, in Lechmere, the
Supreme Court reaffirmed Babcock’s general rule that
an employer may validly post his property against non-
employee distribution of union literature and empha-
sized the narrowness of the inaccessibility exception to
that rule. As noted above, the Court stated that for the
exception to apply the union must confront ‘‘unique
obstacles’’ to nontrespassory communications, such as
employees ‘‘isolated from the ordinary flow of infor-
mation that characterizes our society.’’ 502 U.S. at
540.
In light of Lechmere, we find it necessary to recon-
sider the comment in Jean Country quoted above.
Newspapers, radio, and television are certainly part of
‘‘the ordinary flow of information that characterizes
our society.’’ At least where the Section 7 right is as
attenuated as the one in question here,14 we find that
the General Counsel must show that the use of the
mass media (such as newspapers, radio, and television)
would not be a reasonable alternative means for the
Union to communicate its message.
No such showing has been made in the instant case.
Indeed, the scant evidence on this question establishes
only that the Union did not consider mass media com-
munication of its message. Thus, Union Organizer
Thomas Ziembovic testified that the Union never at-
tempted to use newspapers, television, radio, mass
mailings, or other ‘‘public medias’’ to advertise its dis-
pute with Sears. In the absence of supporting evidence,
we cannot rely on ‘‘mere conjecture’’ or ‘‘expressions
of doubt’’ to dismiss use of the mass media as a rea-
sonable alternative means. Id. at 540.
Our dissenting colleague cites expense and remote-
ness as ‘‘shortcomings’’ in the use of mass media. As
to the former, the General Counsel adduced no evi-
dence as to the costs of using mass media. As to the
latter, we assume arguendo that confrontations at a
store are more effective than, for example, an adver-
tisement in a newspaper. However, it is clear that the
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 316 NLRB 109 (1995). See also the dissent in Leslie Homes,
Inc., 316 NLRB 123 (1995).
2 502 U.S. 527 (1992).
3 304 NLRB 832 (1991).
4 The Board found that handbilling from the highway medians and
left turn ‘‘jughandles,’’ the parking lot entrance medians, or the pub-
lic easements between the bordering highways and the parking lots
would have been fruitless and dangerous. Id. at 833 fn. 8 and ac-
companying text, and 841–842.
5 Id. at 833 fn. 9 and 841.
6 Jean Country, 291 NLRB 11, 13 (1988).
7 502 U.S. at 540.
8 ‘‘Whatever the merits of that conclusion,’’ the Court stated,
‘‘other alternative means of communication were readily available.’’
Id.
broad proscription on nonemployee trespass will apply
even if nontrespassory communication is ‘‘less-than-
ideally effective.’’ Id. at 539.
Based on the foregoing, we find that the General
Counsel has failed to carry his heavy burden of prov-
ing ‘‘unique obstacles’’ to the Union’s attempt to com-
municate its consumer boycott message to Sears’ cus-
tomers. Therefore, we conclude that Respondents Sears
and Macomb Mall did not act unlawfully by prohibit-
ing, or imposing an insurance requirement on, the
Union’s handbilling on the Respondents’ properties.
Accordingly, we shall dismiss the complaint against
Respondents Sears and Macomb Mall.
CONCLUSIONS OF LAW
1. Respondent Sears has not violated Section 8(a)(1)
of the Act by demanding that the Union stop
handbilling on Sears’ property, or by threatening the
handbillers with arrest if they continued to handbill on
its property.
2. Respondent Macomb Mall has not violated Sec-
tion 8(a)(1) of the Act by imposing a liability insur-
ance requirement on the Union as a condition of per-
mitting the Union to handbill on the the mall’s prop-
erty.
ORDER
The complaint is dismissed as to Respondents Sears
and Macomb Malls.
MEMBER TRUESDALE, dissenting.
For the reasons set forth in Member Browning’s and
my joint dissent in Loehmann’s Plaza II,1 I would not
apply the access analysis of Lechmere, Inc. v. NLRB2
to this case, where employees engaged in consumer
boycott handbilling. I believe that Lechmere’s rationale
is properly limited to nonemployee organizational ac-
tivity on an employer’s private property. I would apply
a traditional access analysis and would reaffirm the
Board’s prior holding that Respondent Sears violated
Section 8(a)(1) of the Act by prohibiting the Union’s
consumer boycott handbilling on its property and that
Respondent Macomb Mall violated Section 8(a)(1) by
imposing a liability insurance requirement as a condi-
tion of permitting the Union to conduct consumer boy-
cott handbilling on its property.
Contrary to my colleagues, I would find that the
Union had no reasonable nontrespassory means of
communicating its consumer boycott message to its in-
tended audience, Sears’ customers and potential cus-
tomers. The Sears’ stores where the Union attempted
to handbill were located in 2 enormous shopping malls
containing 92 and 144 stores, respectively. The mall
buildings at each location were surrounded by exten-
sive privately owned parking areas bordered by heavily
traveled thoroughfares. Given the massive size of each
mall and its surrounding parking areas; the large num-
ber of stores at each mall; the distance from the bor-
dering public thoroughfares to the Sears’ stores within
the malls; and the speed and volume of traffic on those
thoroughfares, I would join the administrative law
judge’s and the Board’s finding in Oakland Mall I3
that handbilling at the malls’ perimeters did not con-
stitute reasonable alternative means by which the
Union could communicate its message.4 I would also
agree with the Board and the judge in Oakland Mall
I that picketing would not constitute a reasonable alter-
native means of communication. Sears, although ‘‘at
the fulcrum of the dispute,’’5 was technically a second-
ary party to the dispute, and such picketing could sub-
ject the Union to an 8(b)(4)(B) charge.
My colleagues now place an even greater burden on
the Union. They would require the General Counsel to
show that various means of mass communication, such
as newspapers, radio, or television, did not constitute
available alternative means of communication for the
Union’s message. Relying on Lechmere, they overrule
Board precedent holding that ‘‘generally it will be the
exceptional case where the use of newspapers, radio,
and television will be feasible alternatives to direct
contact.’’6 I do not concur in this reversal of sound
precedent.
Even if Lechmere were applicable to this case, I
would not find that Lechmere compels such a result.
My colleagues rely on the Court’s broad reference to
‘‘the ordinary flow of information that characterizes
our society.’’7 In fact, however, the Court acknowl-
edged but refrained from overruling the Board’s spe-
cific finding that, because newspaper advertisements
placed by the union were expensive and might not
reach employees, they were not a reasonably effective
alternative means of communication.8
Moreover, use of mass media has abundant short-
comings—expense and remoteness—that justify the
Board’s presumption that it does not provide a reason-
able alternative means for unions to communicate with
customers or potential customers of an employer. As
the court of appeals recognized in Giant Food Markets
1165OAKLAND MALL
9 633 F.2d 18 (6th Cir. 1980), denying enf. on other grounds 241
NLRB 727 (1979).
10 Id. at 24–25; see also Sentry Markets, 296 NLRB 40, 43 (1989),
enfd. 914 F.2d 113, 117 (7th Cir. 1990); Scott Hudgens, 230 NLRB
414, 416 fn. 22 and accompanying text (1977), citing Scott Hudgens,
205 NLRB 628, 631 (1973). 1 The unopposed motions to correct the transcript are granted.
v. NLRB,9 a case concerning area standards picketing
of a retail store:
When the consumers potentially come from a
large metropolitan area and cannot be categorized
as a specific group patronizing a specific type of
store, expensive, extensive mass media or mailer
campaigns should not be required. If reasonable-
ness is a criterion for determining 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 com-
munication by being physically removed from the
actual location of the store whose policies are at
issue and would prevent any personal contact be-
tween the union and the intended audience.10
Although the ordinary flow of information may in-
deed characterize our society, the ability to place par-
ticular information in this flow is not equally available
to all. In the realm of mass media, many large corpora-
tions that sell consumer goods or services, such as
automobiles, medications, or long-distance telephone
service, for example, devote vast sums to extensive ad-
vertising to establish awareness of their products in the
consciousness of virtually all television viewers, radio
listeners, and newspaper readers. Unions, however, are
not commercial enterprises and lack the means to un-
dertake mass media advertising, at least on the scale
needed to instill their message into the minds of their
audience. This imbalance is so patent that I would not
require unions to prove in every access case that mass
media is not a reasonable alternative means of commu-
nication. Here, although the Sears’ stores may effec-
tively reach their potential customers through mass
media advertising, it is folly to presume that the Union
could convey its message to potential Sears’ customers
through similar means. Moreover, even if cost were
not a barrier, it is doubtful that many broadcasting
companies or newspapers would accept advertising
bearing the ‘‘do not patronize’’ messages that unions
often wish to convey, such as the one displayed on the
handbills that the Union attempted to distribute here.
In sum, I find that the Union could not reasonably
convey its message to its intended audience through
handbilling or picketing from public property at the
perimeters of the two shopping centers, and I dissent
from my colleagues’ reversal of Board precedent hold-
ing that mass media is presumptively not a feasible al-
ternative means for a union to convey its message. I
would reaffirm the Board’s holding in Oakland Mall I
that Respondent Sears violated Section 8(a)(1) by pro-
hibiting the Union’s consumer boycott handbilling on
its property and that Respondent Macomb Mall vio-
lated Section 8(a)(1) by imposing a liability insurance
requirement on the Union as a condition of permitting
it to conduct consumer boycott handbilling on its prop-
erty.
Tinamarie Pappas, Esq., for the General Counsel.
Douglas A. Witters, Esq. (Clark, Hardy, Lewis, Pollard and
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, a
Limited Partnership.
Hy Bear, Assistant General Counsel, 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-
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 for Re-
gion 7 of the National Labor Relations Board (the Board) on
September 27 and October 24, 1988, and an order consolidat-
ing cases which issued on October 26, 1988. The complaints
allege that Oakland Mall, Ltd., Macomb Mall Associates, a
Limited Partnership, and Sears, Roebuck and Co. (individ-
ually Oakland Mall, Macomb Mall, and Sears and collec-
tively 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 denying 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.
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates hereinafter are 1988 unless otherwise specified.
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, appli-
ances, 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 in-
stant proceedings. In the course and conduct of its business
operations at each of the Michigan stores involved herein, it
annually derives gross revenues in excess of $500,000, and
annually purchases and receives goods and materials valued
in excess of $50,000 which were shipped directly from
points located outside the State of Michigan. Sears 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.
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-
celed its contract with Ryder in July 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 handbillers asked shoppers
to refrain from shopping in the Sears’ stores, the Union’s
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
instructions regarding their presence on, or avoidance of, pri-
vate 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
stores, Sears, Penney’s, and Hudsons, located at the ends of
wide, streetlike aisles, complete with trees, plants, and
benches. About 140 smaller specialty shops line the aisle.
Sears, the largest store in the mall, was built before the mall
as a freestanding 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
1167OAKLAND MALL
3 Ziembovic testified that there was no handbilling at the mall en-
trance; Dyke, however, observed handbillers there and ordered them
off of the property. 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.
space for about 8800. Abutting the parking lots are public
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 one, follows the property line
between Sears and the mall. It serves both lots and is used
by customers going to either the mall in general or Sears in
particular. It is the most convenient entrance for customers
approaching 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 one.
To the west is an entrance to the mall parking lot, with a
sign identifying Oakland Mall, Sears, and Hudsons, used by
customers 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 Penney’s.
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 two) and northern
(number five) entrances have median strips, small portions (8
feet) of which extend into public property. There is a traffic
light at entrance number two, and a jughandle which can ac-
commodate about 10 cars. There are also two buses which
stop along John R, at entrance number two, and another
which enters the parking lot and stops at the Penney’s store.
Most (approximately 65 percent) automotive traffic enters
the Sears’ parking lots through entrance number one, along
14 Mile Road, and entrance number two, off of John R. The
remainder 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 the 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, at 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 union handbills. 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
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 midafternoon 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,
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 That Mossman took the telephone call from Ziembovic at his of-
fice located 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.
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 prob-
lem.4
Notwithstanding that the 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’s and Mossman’s. It
is not plausible that a union which was serious enough about
a dispute to prepare a handbill, bring employees together to
distribute 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 interpreted 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
or Sears after August 2. Neither did it attempt, on that or any
other day, to distribute its handbills 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 Road, areas which Respondent Sears contends are suitable
for the Union’s distribution.
In addition to the speed of the traffic around the mall mak-
ing 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 the public easement and would have required a driver
to stop immediately on 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,
alongside of, or at the junction of the two roads, where chari-
table 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 on the Sears’ lot and an-
other which goes into the mall’s lot further north. There are
bus stops in the mall’s parking lot 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
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 a 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
streetlike 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
1169OAKLAND 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 au-
thority to order the Union not to handbill without completing the
mall’s application requirements.
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.
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 historically
required, in order to protect the mall and its tenants from li-
ability arising from accidents and altercations. In addition to
securing insurance coverage, Macomb Mall uses the applica-
tion procedure to schedule events and avoid conflicts. The
policy has uniformly been required of all outside groups, in-
cluding 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 entrance 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.
On hearing from the handbillers, Loran called Macomb
Mall’s office. Speaking with Janet Lewis, secretary to Mall
Manager Nancy Lamphear, he asked whether permission 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’ en-
trances 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 insurance.
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
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Peven, the mall’s insurance consultant, testified in response to the
administrative 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 cer-
tificate 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 conceivable, 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 witnesses with any experience in the insurance industry were
proffered by any of the parties.
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 southbound
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 on Sears’ property.
The Union did not attempt to handbill from the easement
or the medians in the abutting roads. It did not do so,
Lowran testified, because the police had threatened the
handbillers with arrest if they went into the roadways and
obstructed traffic. Additionally, he noted, a handbiller stand-
ing 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 distin-
guished 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 relativeiy equal in strength would the availability of al-
ternative means of communication become determinative. In
Jean Country, 291 NLRB 11 (1988), 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 at 967 (1988). It identified numerous factors
relevant 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-
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,
291 NLRB 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 on its property through any of a number
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,
1171OAKLAND MALL
its property interests are less substantial than those of an em-
ployer in a more private nonretail setting. Target Stores,
supra. 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 imposing no restrictions on
access to the parking lot or the sidewalk 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 freestanding single facility with
its own parking lot provided for the convenience of its cus-
tomers was held to have a substantial private property inter-
est.
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 on its doing
so. There is no evidence that Oakland Mall imposes restric-
tions on the use of the property; no reference was made, ei-
ther when the Union sought permission to handbill or at the
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 on 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,
30–31 (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
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 effec-
tive. In this regard, I note that the Union’s message was fair-
ly detailed, certainly more complex than ‘‘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.
1172 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 Oakland Mall’s obliga-
tion to permit the Union’s presence on its property.
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
Roads, respectively. However, entrance number one is the
property line between Sears and the Oakland Mall and clear-
ly would be a main entrance for mall shoppers as well as
those destined for Sears. Even if the Union could safely, ef-
fectively, and without fear of arrest have handbilled from
public property abutting those two entrances (all of which is
doubtful), it would have been unable to communicate ver-
bally with the shoppers and would have missed 35 percent
of the auto traffic going in to Sears as well as the 20 percent
which enters through the mall, substantially diluting its mes-
sage. 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 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’ prop-
erty was clearly marked instead of being held out as mall
property, if the mall’s representatives had made clear where
that property line was, and if the Union had not been threat-
ened with arrest for handbilling on Sears’ property. The key
under Jean Country is the ‘‘availability of a reasonably ef-
fective alternative means’’ of communication (291 NLRB at
14). Given the lack of a clear delineation of property lines
and Sears’ refusal, albeit unlawful, to allow handbilling on
its property, I must find that, at that time, the Union had no
reasonably effective 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, Re-
spondent Oakland 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 distribu-
tion, that the ‘‘Don’t Shop at Sears’’ message would reach
shoppers on their way out, when it would be less effective
than if it had been received before the shopping was com-
pleted, 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.
The 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 Country and Brook had committed unfair labor prac-
tices by prohibiting the union’s picketing in the mall, Jean
Country requested that the union be required to post mainte-
nance and insurance bonds before resuming picketing. The
Board denied 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. [291 NLRB 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,
1173OAKLAND 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 rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
12 See fn. 11, above.
13 See fn. 11, above.
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 burden9
being imposed on the exercise of Section 7 rights, particu-
larly in light of Macomb Mall’s relatively weak property in-
terest. 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 violated 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 it with arrest if the handbilling activities
continued, Respondents Sears and Oakland Mall have vio-
lated 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 Co., Troy and
Roseville, Michigan, Macomb Mall Associates, a Limited
Partnership, Roseville, Michigan, and Oakland Mall, Ltd.,
Troy, Michigan, their officers, agents, representatives, and
assigns, 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 handilling at
the entrances to the Sears, Roebuck and Co. stores in the
Oakland Mall and Macomb Mall, in Troy and Roseville,
Michigan, respectively, or imposing unreasonable burdens on
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 Co. shall post at its
stores in Oakland Mall and Macomb Mall copies of the at-
tached notice marked ‘‘Appendix A.’’11 Respondent Oakland
Mall shall post at its office in Oakland Mall copies of the
attached notice marked ‘‘Appendix B.’’12 Respondent
Macomb Mall shall post at its office in Macomb Mall copies
of the notice marked ‘‘Appendix C.’’13 Copies of the notices,
on forms provided by the Regional Director for Region 7,
after being signed by each Respondent’s authorized rep-
resentative, shall be posted by each Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by each Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
SEARS, ROEBUCK AND CO.
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 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 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,
Ltd. 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 you in the exercise of the rights guaran-
teed you by Section 7 of the 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 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 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 you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
MACOMB MALL ASSOCIATES, A LIMITED
PARTNERSHIP