Pay Less Drug Stores Northwest

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 972 (N.L.R.B. 1993)

972
312 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Not included in bound volumes.
2 Not included in bound volumes.
3 In addition, the American Federation of Labor and Congress of
Industrial Organizations (AFL–CIO), the National Retail Federation,
and the Council on Labor Law Equality filed briefs as amici curiae.
4 For the sake of brevity, we refer to Respondents Richard A.
Vandervert and Harlan Douglass, d/b/a Douglass-Vandervert Devel-
opers, d/b/a Wandermere Mall, collectively as Wandermere.
5 JD 20, fn. 8.
6 NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Accord-
ingly, both the General Counsel and the Charging Party also contend
that Lechmere does not require dismissing the complaint. In addition,
the Charging Party avers that Lechmere does not govern because this
case, unlike Lechmere, involves nontrespassory informational picket-
ing by nonemployees and because the Union’s picketing is explicitly
authorized by the publicity proviso to Sec. 8(b)(7)(C) of the Act. Be-
cause we find a violation based on disparate treatment, we do not
address these additional issues raised by the Charging Party.
Pay Less Drug Stores Northwest, Inc. and United
Food and Commercial Workers Union, Local
1439, affiliated with United Food and Commer-
cial Workers International Union, AFL–CIO,
CLC
Richard A. Vandervert and Harlan Douglass d/b/a
Douglass-Vandervert Developers d/b/a
Wandermere Mall and United Food and Com-
mercial Workers Union, Local 1439, affiliated
with United Food and Commercial Workers
International Union, AFL–CIO, CLC. Cases
19–CA–20690 and 19–CA–20824
September 30, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 26, 1991, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondents filed exceptions and a supporting brief
and the General Counsel filed a brief in support of the
judge’s decision and a brief in answer to the Respond-
ents’ exceptions. On December 17, 1991, the Board re-
manded the proceeding for further findings.1 On Feb-
ruary 11, 1992, the judge issued the attached supple-
mental decision. Thereafter, on February 24, 1992, the
Respondents filed a motion to dismiss the complaint,
and on March 9, 1992, the General Counsel filed a
motion for permission to withdraw the complaint, both
citing the decision of the Supreme Court in Lechmere,
Inc. v. NLRB, 112 S.Ct. 841, 139 LRRM 2225 (Jan.
27, 1992). On May 13, 1992, the Board issued an
order2 denying both motions and invited the parties to
file briefs concerning the impact of Lechmere on this
case. Thereafter, the General Counsel, the Charging
Party, and the Respondents filed supplemental briefs.3
The Respondents also filed exceptions to the judge’s
supplemental decision. On July 28, 1992, the Respond-
ents filed a motion to strike portions of the briefs of
the General Counsel and the Charging Party; and the
General Counsel and the Charging Party filed briefs in
response to that motion.
The Board has considered the decisions and record
in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings, and conclusions
to the extent consistent with the following analysis,
and to adopt the recommended Order.
Respondent Wandermere4 owns a strip shopping
mall with a large parking area and several freestanding
‘‘outpad’’ buildings occupied by various merchants.
Respondent Pay Less leases one of the stores in the
mall. This case arose as a result of the Respondents
having ejected union pickets from the sidewalk in front
of the Pay Less store. The pickets were publicizing
Pay Less’ nonunion status and requesting members of
the public not to patronize Pay Less. We affirm the
judge’s finding that by removing the pickets to the de-
celeration lane of the highway at the perimeter of their
property, the Respondents violated Section 8(a)(1) of
the Act. We do so, however, only for the following
reasons.
The General Counsel and the Charging Party con-
tend, inter alia, that the Respondents discriminatorily
denied access to the union pickets. As a preliminary
matter, we address the Respondents’ contention that
the General Counsel and the Charging Party have
waived any argument regarding disparate treatment by
not raising it in exceptions to the judge’s initial deci-
sion. We reject the Respondents’ contention, for the
following reasons.
In his initial decision the judge found, by application
of the accommodation analysis established by the
Board in Jean Country, 291 NLRB 11 (1988), that the
Respondents violated the Act. Accordingly, the judge
found it unnecessary to consider the issue of the Re-
spondents’ alleged discriminatory denial of access to
the Union, as the General Counsel had urged the judge
to do at the hearing and in her brief to the judge.5
Now, in their supplemental briefs in response to the
Board’s Order Denying Motions, the Charging Party
and the General Counsel reassert that the Respondents
violated Section 8(a)(1) by discriminatorily denying
union pickets access while permitting access by other
organizations.6
The Respondents move to strike portions of the
General Counsel’s and the Charging Party’s supple-
mental briefs relating to their argument that the Re-
spondents had discriminatorily denied access to the
union pickets. In their motion to strike, the Respond-
ents rely on Section 102.46(b)(2) of the Board’s Rules
973PAY LESS DRUG STORES NORTHWEST
7 This section states in pertinent part that: ‘‘Any exception to a rul-
ing, finding, conclusion, or recommendation which is not specifically
urged shall be deemed to have been waived.’’
8 The Respondents have excepted to aspects of the judge’s decision
concerning the scope of Pay Less’ discretion under the lease to ‘‘use
the sidewalk in any way and at any time it wished to.’’ The Re-
spondents do not otherwise take issue with the judge’s recitation and
interpretation of the applicable lease provisions.
9 In their motion to strike, the Respondents contend that Pay Less’
one-time allowance of the bloodmobile in front of its store did not
‘‘jeopardize[]’’ its unwritten no-solicitation/no-distribution rule and
was insufficient under Sentry Markets, 296 NLRB 40 (1989), enfd.
914 F.2d 113 (7th Cir. 1990), to ‘‘diminish the strength of the prop-
erty right asserted.’’ Contrary to the Respondents, we do not find
Sentry Markets controlling. That case was not decided under a dis-
parate treatment theory which we apply here. Rather, it was decided
under the rejected Jean Country accommodation standard. The Board
found that limited access granted for nontenant use of property (the
Salvation Army there) did not significantly affect the strength of the
employer’s property right. Further, if the Respondents’ argument is
that the single authorized appearance of the bloodmobile is insuffi-
cient to hold Pay Less liable under a disparate treatment analysis,
we reject this contention as well. We recognize that ‘‘an employer
does not violate Sec. 8(a)(1) by permitting a small number of iso-
lated ‘beneficient acts’ as narrow exceptions to a no-solicitation
rule.’’ Hammary Mfg. Corp., 265 NLRB 57 fn. 4 (1982). However,
in the instant case, Pay Less and Wandermere acted in concert in
ejecting the Union from the front of the Pay Less store (JD at fn.
4). Accordingly, it is appropriate to consider the past conduct of
both Respondents. As noted infra, Wandermere has repeatedly per-
mitted the public to use the mall for activity unrelated to the busi-
ness of the mall. Based on that past conduct, and on Pay Less’ past
conduct, we find that Respondents have frequently allowed the pub-
lic to use the property for nonmall business. Accordingly, we find
Continued
and Regulations7 and contend that the General Counsel
and the Charging Party have waived their right to rely
on the disparate treatment theory by failing to except
to the judge’s decision not to engage in a disparate
treatment analysis.
The General Counsel and the Charging Party con-
tend, in response to the motion to strike, that the dis-
criminatory denial of access theory has been fully liti-
gated and remains viable. In addition, the Charging
Party contends that the judge’s decision to resolve this
case by applying one legal theory rather than another
equally applicable theory does not constitute a ‘‘ruling,
finding, conclusion, or recommendation’’ within the
meaning of Section 102.46(b)(2).
The Respondents correctly observe in their motion
to dismiss that neither the General Counsel nor the
Charging Party, who prevailed under the then-deter-
minative Jean Country accommodation analysis, filed
exceptions to the judge’s failure to engage in a dispar-
ate treatment analysis.
The Respondents, however, excepted to certain ele-
ments of the judge’s initial determination that the Re-
spondents’ conduct violated the Act. Further, in their
brief in support of those exceptions, the Respondents
stated that Respondent Wandermere ‘‘uniformly en-
forced’’ its no-solicitation policy. We also note that the
disparate treatment theory was presented, and evidence
on it was adduced during the hearing; that the General
Counsel argued the theory in his brief in support of the
judge’s initial decision, and in his answering brief to
the Respondents’ exceptions; and that the General
Counsel and the Charging Party vigorously continued
to argue the theory in their supplemental briefs, and in
their responses to the Respondents’ motion to strike.
In circumstances substantially similar to those
present here, the Board has not required that excep-
tions be filed on the issue of disparate treatment in
order to preserve that issue for its consideration when
an administrative law judge has relied on another ap-
plicable theory and has not passed on the disparate
treatment issue. Food Lion, 304 NLRB 602 fn. 2
(1991). We find here that the issue of disparate treat-
ment remains viable and has been fully litigated.
In addition, we note that Section 102.46(b)(2) of the
Board’s Rules provides that the failure of a party to
urge an exception to a judge’s ruling shall constitute
a waiver of the right to object to that ruling. The in-
stant case involves a judge’s decision which ruled in
favor of the General Counsel’s primary contention and
found it unnecessary to rule on the General Counsel’s
alternative contention. In these circumstances, the Gen-
eral Counsel’s failure to except to the judge’s nonrul-
ing does not fall within the ambit of Section
142.46(b)(2) and is thus not a waiver of the General
Counsel’s alternative position.
Accordingly, we deny the Respondents’ motion to
strike portions of the General Counsel’s and the Charg-
ing Party’s supplemental briefs.
Turning to the merits, we note the following evi-
dence bearing on the allegation that the Respondents
discriminatorily denied access to the union pickets.
Mall Owner Wandermere’s lease with Pay Less grants
to Pay Less the use of the sidewalk area in front of
its store for the sale of merchandise without waiving
any of Wandermere’s responsibilities as landlord. Para-
graph 7(b) of the lease, ‘‘Use,’’ provides that the pub-
lic has the right to use the common areas, including
the sidewalk in front of the Pay Less store, and prom-
ises that Wandermere will hold Pay Less harmless for
any liability arising out of the use of the common
areas. The judge found, and there were no exceptions,8
that the lease gave Pay Less a nonexclusive right to
the use of the sidewalk in front of its store.
Wandermere’s leases prohibit tenants, but not the
general public, from soliciting or handbilling. At the
time of the alleged unfair labor practices, Wandermere
had not posted no-solicitation signs. Pay Less has an
unwritten no-solicitation/no-distribution policy that it
communicates orally to store managers. Notwithstand-
ing this policy, however, Pay Less permitted a blood-
mobile to park in front of its store for part of one day
to encourage members of the public to donate blood.9
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Respondents acted discriminatorily when they jointly ejected the
Union from the property.
10 It is unclear whether and from whom permission was sought by
these groups.
1 All dates refer to 1989 unless otherwise indicated.
2 Union allegations in Cases 19–CA–20881 and 19–CA–20689
against a different shopping center were resolved prior to hearing.
(G.C. Exhs. 2 and 3.)
Wandermere’s onsite property manager and agent,
Lyle Crecelius, testified in a sometimes contradictory
manner at the hearing concerning grants of access for
outside groups to enter Wandermere’s property. He
testified generally that Wandermere has not authorized
any solicitations on its property. According to
Crecelius, Wandermere once removed an unauthorized
Sprint telephone sales table from the mall. Crecelius
also admitted, however, that while Wandermere had
also once required one tenant, Albertsons, to remove a
group of Girl Scout cookie sellers from in front of
Albertsons, Wandermere had granted permission to the
store manager to allow cookie sales inside Albertsons.
Crecelius also testified from personal knowledge to
public uses of Wandermere’s property by outside
groups,10 including a bike ride sponsored by a school
or athletic group, a carwash/fundraiser, and meetings
and a competition by a classic car club. Notwithstand-
ing the no-solicitation-by-tenants provision in
Wandermere’s lease, Crecelius also testified that one
tenant conducted an annual ‘‘coats for kids’’ drive and
at least some tenants posted advertisements for civic
events in store windows and at checkout areas. Despite
his knowledge of all these events there is no evidence
Crecelius tried to stop them, or even cautioned those
involved not to repeat them.
We find, based on a preponderance of the evidence,
that Wandermere routinely allowed other organizations
to use the mall for activity unrelated to the business
of the mall and its tenant stores while, at the same
time, it required the union pickets to leave
Wandermere’s property. For the reasons discussed in
Davis Supermarkets, 306 NLRB 426 (1992), and Great
Scot, 308 NLRB 598 (1992), we conclude that the Re-
spondents have discriminatorily denied the Union ac-
cess to mall property in violation of Section 8(a)(1) of
the Act. See also NLRB v. Babcock & Wilcox, supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge.
Patti L. Hunter, Esq., for the General Counsel.
Robert R. Tiernan, Esq., of Lake Oswego, Oregon, for Re-
spondent Pay Less.
Jack B. Albanese, Esq., of Atlanta, Georgia, for Respondents.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Spokane, Washington, on Janu-
ary 9, 1991,1 pursuant to a second amended consolidated
complaint2 issued by the Regional Director for the National
Labor Relations Board for Region 19 on June 27, and which
is based on charges filed by United Food and Commercial
Workers Union, Local 1439, affiliated with United Food and
Commercial Workers International Union, AFL–CIO, CLC
(the Union) on January 5, 1990 (19–CA–20690), and on
April 2, 1990 (19–CA–20824). The complaint alleges that
Pay Less Drug Stores Northwest, Inc. and Richard A.
Vandervert and Harlan Douglass d/b/a Douglass-Vandervert
Developers d/b/a Wandermere Mall (Respondents) have en-
gaged in certain violations of Section 8(a)(1) of the National
Labor Relations Act (the Act).
Issues
Whether Respondents violated the Act by denying union
pickets access to the sidewalk in front of the Pay Less retail
store and by threatening the union pickets with arrest if they
did not discontinue picketing in that area.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-
examine witnesses, to argue orally and to file briefs.
Briefs, which have been carefully considered, were
filed on behalf of the General Counsel and Respond-
ents.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENTS’ BUSINESS
Respondent Pay Less admits that it is a Maryland corpora-
tion which operates an office and several retail stores in Spo-
kane, Washington. It further admits that during the past year,
in the course and conduct of its business that its gross sales
of goods and services exceeded $500,000 and that annually
it purchases goods and materials valued in excess of $50,000
directly from sources outside the State of Washington. Ac-
cordingly, Respondent Pay Less admits, and I find, that it is
an employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Respondent Wandermere admits that at all times material
it has been jointly owned by Richard A. Vandervert and Har-
lan Douglass, as copartners doing business as Douglass-
Vandervert Developers and under the name of Wandermere
Mall. In its answer, Respondent Wandermere denied, but at
hearing admitted (Tr. 11–12) that at all times material it has
engaged in the business of developing and leasing commer-
cial real estate, including Wandermere Mall. It also admitted
that during the past 12 months, a representative period, in the
course and conduct of its business operations, it sold and
shipped goods or provided services to customers who were
themselves engaged in interstate commerce by other than in-
direct means of a total value in excess of $50,000. Accord-
ingly, Respondent Wandermere admits, and I find, that it is
975PAY LESS DRUG STORES NORTHWEST
an employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Both Respondents admitted at hearing (Tr. 11–12), and I
find, that United Food and Commercial Workers Union,
Local 1439, affiliated with United Food and Commercial
Workers International Union, AFL–CIO, CLC is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. General background
Originally Osco Drug and the Union had a collective-bar-
gaining relationship encompassing the employees at the sev-
eral Osco retail stores in the Spokane area. Sometime prior
to February 1988, Respondent Pay Less purchased the Osco
stores in the Spokane area. Respondent Pay Less, as succes-
sor to Osco, and the Union subsequently bargained to im-
passe in February 1988, when employees voted to strike. The
strike did not resolve the labor dispute and in July 1988, a
decertification election was held, in which a majority of vot-
ers voted to decertify the Union. On August 1, 1988, the
Board issued a Certification of Results of Election reflecting
the majority’s choice. (G.C. Exh. 8.)
Once the election results were official, the Union in-
structed its pickets to change picket signs from ‘‘On Strike,
UFCW, L. 1439’’ to ‘‘Pay Less Non-Union, Please Do Not
Patronize, UFCW, L. 1439.’’
Currently, the Union has approximately 2500 members in
the Spokane area. Respondent Pay Less maintains approxi-
mately five stores in the same area. Nationwide, Respondent
Pay Less has about 300 stores.
2. Wandermere Mall
One of the newer Pay Less stores in the Spokane area is
located in the Wandermere Mall (the mall). This so-called
strip mall—meaning that all lessees are in a straightline or
strip, with no enclosed mall area—is located at Highway 395
and Hastings Road, about three quarters of a mile outside the
Spokane city limits and about 11–12 miles north of down-
town Spokane.
Open in 1986, the mall contains approximately 98,000
square feet and is composed of two major or anchor tenants,
Albertson’s Food Store, whose employees are represented by
the Union, and Pay Less. There are about five smaller ten-
ants in the mall, a hair salon, dry cleaner, yogurt store, video
rental, and mailbox rental. There are other nearby businesses
within the shopping center area, but not attached to the mall.
Described by one witness as ‘‘outpod’’ tenants, these busi-
nesses are a pizza restaurant, a bank, and a gas station,
which is directly on the corner of Highway 395 and Hastings
Road. Directly to the front of the strip business is a 15-acre
parking lot area, divided up into approximately 500 spaces
for parking. No public transportation brings customers to the
mall. All patrons must arrive by car or on foot.
A diagram illustrating the general area as described above
and a color overhead photograph of the same area were ad-
mitted into evidence at hearing. As they are helpful to under-
stand the issues in this case, I reproduced them in this deci-
sion. (See Appendices 1A and 1B.)
As indicated in the diagram and photograph, there are a
number of entrances to and exits from the mall. During the
hearing, those off of Hastings Road were marked D-l through
D-4 on General Counsel’s Exhibit 4. Those off of Highway
395 were marked D-5 and D-6 and they have acceleration
lanes for traffic leaving the mall and deacceleration lanes for
traffic entering the mall. These lanes are illustrated in a
photo received into evidence.
The mall perimeter along Hastings Road has a sidewalk
which ends at Highway 395:
Between D-5 and D-6 is a large slightly graded grassy
area, separating Highway 395 from the parking lot. At D-5,
there is a sign with ‘‘Wandermere Mall’’ on it, as well as
‘‘Pay Less’’ and ‘‘Albertson’s.’’ Although Highway 395 is
not lit, D-5 and D-6 are illuminated by large light poles and
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In the mall’s standard lease which was not used with Pay Less
as explained below, tenants are prohibited from soliciting or
handbilling the public. No restrictions in the lease prohibit the public
from similar activities.
the parking lot itself is illuminated by regularly spaced light
poles visible in General Counsel’s Exhibit 4 above.
Directly in front of each mall tenant runs a continuous
sidewalk, which varies in width from 8 to 10 feet wide to
4 feet wide for the sidewalk in front of Pay Less. In general,
each tenant is responsible for maintaining the sidewalk and
other area in front of its business, but the mall maintains a
maintenance crew for general mall cleanup and parking lot
maintenance.
The tenants belong to an informal merchants association
which consider such questions as advertising and special pro-
motional events.
In fall 1990 ‘‘No Solicitation’’ signs were posted by order
of the mall management. This occurred after the picketing at
issue in this case and after various other groups desired to
handbill for various reasons on mall property and after one
or more individuals attempted to panhandle mall patrons.3
3. Pay Less store
Respondent Pay Less maintains a store with approximately
23,700 square feet of space, most of which is used for retail
sales. Items sold include household goods, hardware, garden
tools and plants, pharmaceuticals, and related items. Open on
June 20, the Pay Less store leases its space from Respondent
Wandermere under terms and conditions contained in a
standard Pay Less lease used by all or most of its stores,
which are located in strip shopping malls. In particular, the
standard Pay Less lease used in this case contains a provision
under paragraph 7, Common Facilities:
(e) Maintenance and Operation
(4) Even though the sidewalk in front of Tenant’s
store building is part of the common area it is agreed
that Tenant has the right to use said area for the sale
of merchandise without waiving any of Landlord’s re-
sponsibilities hereunder. (G.C. Exh. 6, p. 6.)
This lease provision is different from the standard lease used
by Respondent Wandermere for all other tenants which limits
and restricts the tenant’s use of the sidewalk in front of the
tenant’s store unless Respondent Wandermere expressly con-
sents to a given use. Respondent Wandermere agreed to use
the Pay Less lease as part of the bargain for Respondent Pay
Less becoming one of the two anchor stores in the mall.
To facilitate the use of the sidewalk area in front of its
store, Respondent Pay Less maintains a broad overhand area
or canopy over the entire sidewalk. This provides shelter
from the elements both for the public and Pay Less merchan-
dise on display. In the overhang is a sprinkler system in case
of fire and a series of lights. In addition, Respondent Pay
Less maintains jacks for one or more cash registers and
intrastore telephones. Respondent Pay Less’ insurance poli-
cies specifically provide for coverage of sidewalk areas in
front of its strip stores where members of the public might
‘‘slip and fall’’ or otherwise have a cause of action against
Pay Less.
To a certain extent, the pattern and content of outdoor dis-
plays are controlled by Pay Less officials at headquarters.
Store managers are entrusted with some discretion to allow
for local variances due to climate and tastes. However, all
Pay Less stores, except for about six in indoor malls, utilize
the sidewalks in front of their stores as selling areas every
day of the year. According to Respondents’ witness, Robert
Tiernan, Pay Less’ general counsel, Pay Less arranges its
sidewalk selling areas to appeal to impulse buyers and in
fact, the sidewalk area is one of the stores’ most profitable
areas. Indirectly, the sidewalk displays also serve to entice
customers into the stores where additional purchases may be
made.
Several witnesses at hearing described exactly what Re-
spondent Pay Less sells in front of its stores, including the
mall store. In summary, the displays are rotated by season
of the year—for example, snow shovels in winter, lawn
mowers, and garden products in summer, and by holiday—
for example, candy for Halloween and Christmas trees and
decorations for the Christmas season. In addition, on a quar-
terly basis, Pay Less announces and heavily promotes store
sales with much of its on-sale merchandise displayed on the
sidewalk area. Just as the store itself maintains aisles for
people to move through, so is a portion of the sidewalk left
clear for persons, customers, and noncustomers alike, to pass
through.
To illustrate its use of the outdoor area, Respondent Pay
Less offered several photographs, some of the mall store and,
some of other stores. Some of the photographs were taken
recently and some were from company files. I will reproduce
a representative sample of the Pay Less mall store sidewalk
selling area.
A summer view showing a plant nursery area with a 4-
foot wall used to display pottery and plants, with merchan-
dise out to the fire lane curb:
977PAY LESS DRUG STORES NORTHWEST
A sidewalk sale with balloons and banners used to attract
customers’ attention and showing spring-summer merchan-
dise such as lawn chairs, briquets and bicycles:
A handrail used for customer assistance, and the base
which is used for display purposes:
A winter display showing Christmas trees, and on the pal-
let, boxes of tree decorations containing light bulbs and orna-
ments:
A nonholiday winter display showing dog kennels, butane
tanks, and shopping carts:
Exh. 14a
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Exh. 14b
Exh. 14c
Exh. 14d
Respondent Pay Less has an unwritten no solicitation/no
distribution policy. According to Tiernan, this policy is com-
municated to store managers at manager meetings. It is,
Tiernan testified, as widely known as having to open the
store on time. On at least one occasion, Respondent Pay Less
permitted a bloodmobile to park in the parking lot in front
of its mall store and encourage members of the public to do-
nate blood.
4. Union picketing
As noted above, after the Union was decertified as Pay
Less bargaining representative, it began a campaign to con-
vince the public to boycott Pay Less stores in the Spokane
area. Led by Daniel Olstad, a witness for the General Coun-
sel, two periods of picketing the mall Pay Less store oc-
curred. An employee of the Union since June 1988, Olstad
never worked for Pay Less; the other pickets were also nei-
ther current nor former Pay Less employees. Moreover, the
Union never represented the employees at the mall Pay Less
store which opened after the decertification. In addition, the
Union never attempted to organize employees of the mall
Pay Less store. During both periods of picketing, the Union’s
sole objective was to inform the public of Pay Less’ non-
union status and to urge the public to shop elsewhere be-
cause of the store’s nonunion status.
During both periods of picketing, there were no violent ac-
tivities, no interference with persons entering or leaving the
store, including persons making deliveries, and no verbal or
physical altercations. In sum, the picket was entirely peace-
ful.
a. First picket
On June 18, the Wandermere Pay Less store opened for
business and a group of about four or five pickets led by
Olstad picketed the store from 9 a.m. when the store opened
to 9 p.m. when the store closed. During approximately 5
979PAY LESS DRUG STORES NORTHWEST
4 Representatives of both Respondents called the Sheriff’s office
(Tr. 66–67), and when deputies arrived, their actions were ratified
by Respondent’s agents on the scene. (Tr. 230–231.)
weeks that this activity continued, the locus of the picket
changed. At first the pickets were on the sidewalk in front
of the store and to the side of the handrails. Either the store
manager or a mall representative called the local sheriff who
arrived soon after. According to Olstad, a deputy sheriff told
him that the pickets could not picket in front of Pay Less
and had to move to the Highway 395 deacceleration lane,
pictured on General Counsel’s Exhibit 4 as the area between
D-5 and D-6. Initially, the pickets also picketed on the side-
walk along Hastings Road between D-2 and D-3. However,
the sidewalk picketing ended within a day or two after the
pickets allegedly entered into an agreement with the manager
of the Albertson’s Food Store at the mall. The Union rep-
resented the Albertson’s employees and in order to avoid any
impression that the labor dispute involved Albertson’s, the
store manager agreed to allow union pickets to use store
bathrooms if they agreed not to picket on Hastings Road.
Both parties agreed and the Union thereafter confined their
picketing to the Highway 395 area.
According to the General Counsel’s witness, Tiernan, he
was present at the mall for the Pay Less store grand opening.
When the deputy sheriffs arrived, Tiernan spoke to Olstad
and said the pickets had to move to the outer edge of the
parking lot on the grassy area. Later that same day, Tiernan
testified he spoke to Olstad again to say it was okay for
pickets to keep their cars in the parking lot.
At first Olstad denied talking to Tiernan on that first day,
or that Tiernan said pickets could picket on the grassy area,
or that pickets could park their cars in the parking lot. (Tr.
176.) Then Olstad was called back as the General Counsel’s
rebuttal witness to reiterate that no such conversation oc-
curred, because if it had, pickets would have gone to the
grassy area. (Tr. 235.) However, on cross-examination of
Olstad’s rebuttal testimony, Olstad admitted having a 1989
Ford Escort just as Tiernan had described in his testimony.
Then Olstad testified:
I spoke to him (Tiernan) . . . at the beginning in
front of the store, okay? In front of the Pay Less Drug
Store. When the police arrived, I remember now that
. . . he was there, and I don’t know what he said to
me, but he did not say anything to me about being able
to picket on the grass. I do remember that. What else
he said . . . I don’t now. (Tr. 241–242.)
I credit Tiernan on this point, finding him to be a more cred-
ible witness than Olstad.
Another union employee named Sue Bennett also testified
for the General Counsel. In July, she was employed as a gen-
eral organizer and union representative when she received a
telephone call in her office at union headquarters. The caller
identified himself as Richard Vandervert, who did not testify
in this case. He complained that pickets were leaving coffee
cups and other debris on the grassy area. In addition, he
threatened to have pickets’ cars towed away. Bennett assured
him that she would arrange for trash collectors for the pick-
ets’ debris. She did so and no further complaints were made
and no cars were ever towed.
The distance from the Pay Less store to the grassy area
was approximately 200 yards, at least by one estimate at
hearing. The size of the picket signs were about 3 feet long
by 2 feet wide.
b. Second picket
On or about December 18, union pickets again appeared
at the mall Pay Less store to picket on the front sidewalk.
This time, as before, Olstad and three others were present
pursuant to the orders of Union President Sean Harrigan. The
pickets carried signs with the inscription recited above. The
earlier scenario basically repeated itself. Sheriff’s deputies
were called,4 and, on arrival, directed the pickets to leave the
front of the store under threat of arrest. The pickets moved
to the same location as before, because, according to Olstad,
that is where the deputies in the summer told them they had
to picket.
Due to less favorable weather conditions and earlier dark-
ness, the pickets ended their picketing for the day shortly
after 4 p.m. Olstad testified that traffic and weather condi-
tions made picketing in the deceleration lane extremely haz-
ardous. On December 23, the Union halted the picketing.
Before engaging in the December picketing of the mall
Pay Less store, Bennett testified that the Union attempted to
publicize its dispute with Pay Less by distributing about
3000 yard signs to homeowners and business owners in sym-
pathy with the Union’s position. This strategy was ultimately
abandoned in July, after a number of signs were stolen from
the yards where they had been posted.
It is the second picketing which is directly in issue in this
case.
B. Analysis and Conclusions
I begin with some basic principles of Board law taken
from the recent decision of Lechmere, Inc., 295 NLRB 92
(1989), affd. 914 F.2d 313 (1st Cir. 1990):
In Jean Country, the Board reevaluated the analytical
approach for resolving conflicts between Section 7 and
private property rights set forth in Fairmont Hotel, 282
NLRB 139 (1986), and clarified that the availability of
reasonable alternative means is a factor that must be
considered in every access case in which a legitimate
property interest and a Section 7 right must be accom-
modated.4 The Board further held (291 NLRB at 14):
Accordingly, in all access cases our essential concern
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 prop-
erty right if access should be granted. We view the
consideration of the availability of reasonably effec-
tive alternative means as especially significant in this
balancing process. In the final analysis however,
there is no simple formula that will immediately de-
termine the result in every case.
The Board in Jean Country found that the following
factors may be relevant to assessing the weight of a
property right: the use to which the property is put; the
restrictions, if any, that are imposed on public access to
the property; and the property’s relative size and open-
ness. The factors that may be relevant to the consider-
ation of a Section 7 right include: the nature of the
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 It is not clear if both Respondents pay for separate liability insur-
ance covering accidents occurring on the sidewalk in front of the
Pay Less store.
right; the identity of the employer to which the right is
directly related (e.g., the employer with whom a union
has a primary dispute); the relationship of the employer
or other target to the property to which access is
sought; the identity of the audience to which the com-
munications concerning the Section 7 right are directed;
and the manner in which the activity related to that
right is carried out. Finally, factors that may be relevant
to the assessment of alternative means include: the de-
sirability of avoiding the enmeshment of neutrals in
labor disputes; the safety of attempting communications
at alternative public sites; the burden and expense of
nontrespassory communication alternatives; and the ex-
tent to which exclusive use of the nontrespassory alter-
natives would dilute the effectiveness of the message.
4 In reaching this conclusion the Board emphasized that, under the
Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S.
105 (1956), and Hudgens v. NLRB, 424 U.S. 507 (1976), the Board is
‘‘‘charged with seeking to avoid the destruction’ of [Sec. 7 and prop-
erty] rights, if at all possible, and with permitting infringements on one
right only to the extent necessary to maintain the other.’’ Jean Country,
supra at 12–13.
Other principles from Jean Country are also helpful in re-
solving the instant case. For example, at 291 NLRB at l3,
the Board instructs that ‘‘there is a ‘spectrum’ of Section 7
rights and private property rights and . . . the place of a par-
ticular right in that spectrum might affect the outcome of a
[given] case.’’ The Board explained further, that ‘‘in cases
when a property owner has especially compelling reasons for
barring access and when the Section 7 right is less central
than, for example, the right of employees to organize . . .
we may more readily find that means of communication
other than those entailing entry onto the property in question
constitutes a reasonable alternative.’’ Id. at 13. Conversely if
a particular property right is diluted as ‘‘when property is
open to the general public’’ and some ‘‘more private char-
acter has [not] been maintained,’’ it becomes more likely that
other alternatives will be found unsatisfactory and a denial
of access found unlawful. Id. at 14.
1. The nature of Respondent’s property interest
In the section entitled ‘‘Facts’’ above, I have recited para-
graph 7(e)(4) of the lease (G.C. Exh. 6) setting forth Re-
spondent’s right to use the sidewalks in front of its store for
the sale of merchandise. To put this subsection in proper
context, I note other provisions of paragraph 7. For example,
paragraph 7, Common Facilities, b. ‘‘Use,’’ indicates that the
public shall have a right to use the common facilities, includ-
ing sidewalks in front of the mall Pay Less store and that
Respondent Wandermere agrees to hold harmless Respondent
for any liability arising out of the use of the common areas
at the mall. As to paragraph 7(e) ‘‘Maintenance,’’ and ‘‘Op-
eration,’’ Respondent Wandermere agrees to maintain side-
walks in good order and repair, and in a safe, sound and
clean condition. To accomplish this, Respondent
Wandermere will pay for liability insurance on the common
area,5 employ a maintenance person on an ‘‘as needed’’
basis and perform other duties and accept other responsibil-
ities not directly relevant to this case. None of Respondent
Wandermere’s responsibilities are waived by Section 7(e)(4)
of the lease quoted in the ‘‘Facts.’’
In light of the above, I find in agreement with the General
Counsel (Br. 31), that Respondent Pay Less has a nonexclu-
sive right to the use of the sidewalk in front of its store. Pay
Less’ argument (Br. 8–9), that the sidewalk in front of its
store is the functional equivalent of the selling areas of its
store must be rejected. Unlike the public actually entering the
Pay Less store who are at least prospective or potential cus-
tomers, the public passing the store on the sidewalk has no
such presumptive character. They could be prospective cus-
tomers of other stores or even person walking by solely for
exercise.
I find that the property right present here of Respondent
Pay Less is relatively modest. See L & L Shop Rite, 285
NLRB 1036 (1987). In Polly Drummond Thriftway, 292
NLRB 331 (1989), a lease was in issue similar to the lease
in the instant case. The Board stated (id. at 332):
We agree with the judge that this lease did not con-
vey to A&P the sidewalk in front of the leased store
building. Rather, it granted to A&P only the right to
use the sidewalk in common with the other occupants
of the shopping center. Further, under the lease, ‘‘all
duties, responsibilities, and liabilities in regard to . . .
control of . . . sidewalks’’ were assumed by the shop-
ping center owner. Under its sublease with the Re-
spondent, A&P conveyed to the Respondent no greater
interest than that which A&P itself possessed. Accord-
ingly, we find it clear that the lease and sublease did
not grant the Respondent a property interest giving it
authority to exclude anyone from the sidewalk in front
of its supermarket. The Respondent merely had a non-
exclusive right to use the sidewalk, while control of the
sidewalk remained with the shopping center owner.
Thus, while the sidewalk in front of the Respondent’s
rented supermarket building was private property, it
was not the Respondent’s property, and the Respondent
lacked the right to exclude anyone from it.
See also Furr’s Cafeteria, 292 NLRB 749 (1989); and Giant
Food Stores, 295 NLRB 330 (1989). Compare Sentry Mar-
kets, 296 NLRB 40, 41 (1989).
Thus, I conclude that the substantial use on a year-round
basis made by Respondent Pay Less of its front sidewalk is
unavailing. Notwithstanding this use and the profits which
may be derived from the sidewalk selling area, the Pay Less
property interest, derived from the lease, remains modest at
best.
Respondent Wandermere’s property interest, while perhaps
greater than Respondent Pay Less, is nevertheless insubstan-
tial. It does not employ security guards or any other method
to regulate public access to the mall. Thus so far as the mall
is concerned, the public has virtually an unfettered right to
come on the mall property for any nondisruptive purpose. To
be sure, signs prohibit parking for ‘‘unauthorized vehicles,’’
and Mall Manager Lyle Crecelius testified that cars have
been towed away if they obstructed driveways, were aban-
doned, or were positioned in the parking lot for sale. (Tr.
43.) Since Crecelius does not maintain an office at the mall
981PAY LESS DRUG STORES NORTHWEST
6 In Jean Country, supra at 26, the distance between the store in
question and the nearest public property where the Union could
picket was one-quarter mile. Here, the distance is closer to one-
eighth of a mile, still a considerable distance to read a picket sign.
7 I have found above that at all times material to this case, union
pickets were entirely peaceful. In addition, at no time were pickets
told that they had to move because they were interfering with access
of patrons to the store, or to the outside selling areas. No evidence
was presented to prove interference and the Board could not find on
this record that ingress or egress of patrons was impeded. Accord-
ingly, the case of Tecumseh Foodland, 294 NLRB 486 (1989), does
not apply to the instant case.
8 In this case, it is unnecessary to apply a ‘‘disparate treatment’’
analysis which focuses on Respondent’s allegedly discriminatory
conduct.
and there is no evidence that mall maintenance employees
act as agents of the mall to enforce restrictions on parking,
I find that public parking on mall property is as unregulated
as public access in general.
2. The nature of the Union’s Section 7 rights
In analyzing the Union’s Section 7 rights, I note that union
access for organizing purposes, a core Section 7 right, is con-
sidered the most important union interest to be protected.
Chugach Alaska Fisheries, 295 NLRB 44 (1989). Area
standards picketing which seeks to protest an employer’s
failure to pay prevailing area wages and benefits and to per-
suade the employer to change its policies is also protected
by Section 7 of the Act, albeit to a lesser extent than activity
that furthers a ‘‘core’’ purpose of the Act. Giant Food
Stores, supra at 39, 41. Finally, the Union’s request of the
public to shop elsewhere, because an employer is nonunion,
is also protected conduct under Section 7, but is less impor-
tant conduct, than organizing or area standards picketing de-
scribed above. Wegman’s Food Markets, 300 NLRB 868,
872 (1990); D’Allessandro’s, Inc., 292 NLRB 81, 82 (1988).
3. Reasonable alternative means of communicating
with targeted audience
I will assume without finding that the property interests of
at least Respondent Wandermere and of the Union are rough-
ly equivalent. Accordingly, I will consider this final factor to
arrive at a proper decision. Once again, I look to Jean Coun-
try, supra at 13, for a partial list of factors that may be rel-
evant to an alternative means determination. These factors in-
clude:
[T]he desirability of avoiding the enmeshment of
neutrals in labor disputes, the safety of attempting com-
munications at alternative public sites, the burden and
expense of nontrespassory communication alternatives,
and most significantly, the extent to which use of the
nontrespassory alternatives would dilute the effective-
ness of the message.
In reviewing the evidence on this issue, I note the credited
testimony of Tiernan that he told Olstad during the first pick-
et that pickets could picket at the perimeter of the parking
lot. Why Olstad elected to picket on the highway I do not
know. Clearly the Board has held that picketing on public
highways constitute a danger and does not constitute a rea-
sonable alternative means of communication. See Lechmere,
Inc., supra at 93. Notwithstanding the available but unused
parking lot perimeter, I conclude that the General Counsel
has met her burden of showing that no reasonable means
exist of communicating with potential customers of Respond-
ent Pay Less.
First, the distance (of about 200 yards) between the perim-
eter of the parking lot and the Pay Less store is too great
for the Union’s message to be read and understood.6 See
Sentry Markets, supra at 40, 41. Next, it is impossible to
identify the customers of Respondent Pay Less from all cars
which may enter the mall from Highway 395. Further, the
additional problems during the winter with early darkness,
the lack of adequate lighting to read picket signs and the
possibility of snow and sleet all create hazards both for the
pickets and for the driving public at large. See Wegman’s
Food Market, supra at 873, and cases therein cited.
Lechmere, Inc., supra at 93. Compare the Red Food Stores,
296 NLRB 450 (1989).
Finally, I find that picketing on the sidewalk along
Hastings Road does not present a reasonable alternative, be-
cause of the possibility of enmeshing Albertson’s in the labor
dispute with Pay Less. Because the Union represents
Albertson’s employees and because persons entering the mall
by car may not perceive from picket signs that the labor dis-
pute involves Pay Less, the possibility of confusion is real,
as feared by the Albertson’s manager.
For the reasons recited below, I find Respondents have
violated Section 8(a)(1) of the Act, by requiring union pick-
ets under threat of arrest to move from the Pay Less side-
walk to the perimeter of the parking lot.7 Mountain Country
Food Store, 292 NLRB 967 (1989), enf. denied by unpub-
lished order (9th Cir. 4/23/91, 90-l385).8
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. The Union, United Food and Commercial Workers
Union, Local 1439, United Food and Commercial Workers
International Union, AFL–CIO, CLC, is a statutory labor or-
ganization.
3. By prohibiting representatives of United Food and Com-
mercial Workers Union, Local 1439, United Food and Com-
mercial Workers International Union, AFL–CIO, CLC from
picketing on the sidewalk in front of Respondent Pay Less’
store in Wandermere Mall in order to advise the public that
Respondent Pay Less’ store is nonunion and to request the
public to shop at unionized stores, and by calling the local
sheriff to enforce the ban, Respondents have violated Section
8(a)(1) of the Act.
4. The unfair labor practices found above have affected
and do affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that they must be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.
10 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondents, Pay Less Drug Stores Northwest, Inc.
and Richard A. Vandervert and Harlan Douglass d/b/a Doug-
lass-Vandervert Developers d/b/a Wandermere Mall, Spo-
kane, Washington, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Prohibiting representatives of United Food and Com-
mercial Workers Union, Local 1439, United Food and Com-
mercial Workers International Union, AFL–CIO, CLC from
picketing in front of Pay Less Drug Stores in Wandermere
Mall, Spokane, Washington, in order to inform the public
that Pay Less is nonunion and to request the public to shop
at unionized stores.
(b) Calling local sheriff’s deputies or other law enforce-
ment officers to enforce the unlawful ban against picketing
on the sidewalk in front of the Pay Less Drug Store in
Wandermere Mall.
(c) 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 Pay Less should post at its retail store at
the Wandermere Mall near Spokane, Washington, copies of
the attached notice marked ‘‘Appendix.’’10 Respondent
Wandermere should post at its office copies of the attached
notice marked ‘‘Appendix.’’ Copies of the notice, on forms
provided by the Regional Director for Region 19, after being
signed by the Respondents’ authorized representatives, shall
be posted by Respondents immediately on receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the 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 Respondents have
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT prohibit representatives of United Food and
Commercial Workers Union, Local 1439, United Food and
Commercial Workers International Union, AFL–CIO, CLC
from picketing on the sidewalk in front of Pay Less Drug
Store in Wandermere Mall near Spokane, Washington, in
order to inform the public that Pay Less is nonunion and to
request the public to shop at unionized stores.
WE WILL NOT call the local sheriff deputies or other law
enforcement officers to enforce the unlawful ban against
picketing on the sidewalk in front of the Pay Less store.
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.
PAY LESS DRUG STORES NORTHWEST, INC.
RICHARD A. VANDERVERT AND HARLAN
DOUGLASS D/B/A DOUGLASS-VANDERVERT
DEVELOPERS D/B/A VANDERMERE MALL
983PAY LESS DRUG STORES NORTHWEST
APPENDIX 1a
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appendix 1b
985PAY LESS DRUG STORES NORTHWEST
1 All dates are in 1989 unless otherwise indicated.
2 It is not clear whether in December, the same or a different sher-
iff’s deputy responded to Respondents’ call for assistance at the Pay
Less store.
3 As general counsel for Pay Less, Tiernan had no authority to per-
mit pickets ejected from the sidewalks in front of Pay Less to remain
in the parking lot owned and controlled by Respondent mall. (Tr.
223.)
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On June 26, 1991, I issued a decision finding that Re-
spondents Pay Less Drug Stores Northwest, Inc. and Richard
A. Vandervert and Harlan Douglass d/b/a Douglass-
Vandervert Developers d/b/a Wandermere Mall, inter alia,
violated Section 8(a) (1) of the National Labor Relations Act
(Act), by requiring union pickets under threat of arrest to
move from the sidewalk in front of Respondent Pay Less re-
tail store to the perimeter of the parking lot.
On December 17, 1991, the Board issued an unpublished
Order Remanding Proceeding to administrative law judge.
I. DIRECTION AND ACTION ON REMAND
A. The Board’s Direction on Remand
MICHAEL D. STEVENSON, Administrative Law Judge. In its
Order remanding, the Board stated, ‘‘certain testimony must
be considered further by the judge and any resulting issues
of credibility resolved.’’ More specifically, the Board di-
rected that I consider further the testimony of the General
Counsel witness Olstad, union representative (inadvertently
named Olsen in the remand order), Mall Manager Crecelius,
and Respondent witness Andrews, Respondent Pay Less store
manager. All of this testimony relates to what deputy sheriffs
told union pickets in December 1989 after Respondents’ rep-
resentatives called the sheriff’s office for assistance. The re-
sulting supplemental credibility findings will assist the Board
in reviewing my original finding that no reasonable alter-
native means of communicating with the targeted audience
existed at the time and place in question.
B. Directed Credibility Resolutions
1.
I begin with a brief summary of the facts.1 On June 18,
the Pay Less store opened in the Wandermere Mall (the
mall) shopping center outside Spokane, Washington. On
opening day and in December, the Union assigned a number
of persons to picket the store with signs urging Pay Less cus-
tomers to shop elsewhere. As recited in my original decision,
the picket on both occasions began picketing directly in front
of the Pay Less store. What happened next is disputed by the
parties.
2.
Both sides agree that on both occasions when the picketers
were present, local sheriff’s deputies were called and arrived
on the scene within a few minutes. In its remand order, the
Board noted that I did not specifically credit Olstad’s testi-
mony that a deputy sheriff told him in June that the pickets
must move to the deceleration lane of Highway 395 running
in front of the mall.
I now credit Olstad’s testimony regarding his conversa-
tions with the sheriff’s deputies. In support of this credibility
finding, I note the following. First, Olstad and other pickets
did picket in the deceleration lanes and it is most unlikely
that the location would have been chosen voluntarily. They
were seen picketing there by the General Counsel’s witness,
Sue Bennett, a union employee who went to the mall in July
after receiving a phone call from Mall Owner Richard
Vandervert. (Tr. 105.) Vandervert had called to complain
about debris left on the grassy area by pickets. I also note
that Respondents did not call as a witness any sheriff’s dep-
uty to rebut Olstad’s testimony.2
As the Board noted in its remand order, I credited Pay
Less General Counsel Tiernan over Olstad with respect to
what Tiernan told Olstad after the deputies arrived. That is,
I believed Tiernan when he testified that he told Olstad, after
the deputies arrived, that he had to go to the outer edge of
the parking lot out by the road, Tiernan added that the dep-
uty told Olstad exactly the same thing. (Tr. 190.) Since I
credited Tiernan in my original decision, I could not account
for Olstad’s picketing on the highway.
I now conclude that Olstad apparently received different
instructions from the sheriff’s deputies than he received from
Tiernan3 and Olstad prudently decided to follow the depu-
ties’ order. In light of Olstad’s testimony, supported by Ben-
nett, I do not credit Tiernan’s testimony that he observed the
pickets picketing on the grassy area (Tr. 212), or that the
deputy told Olstad he could picket at the outer edge of the
parking lot.
3.
As additional rationale for crediting Olstad above, I look
to what happened in December. After the same or a different
deputy ordered Olstad to move away from the sidewalk in
front of the Pay Less store, Olstad returned to the same area
on the highway where he had picketed in June. This time
Crecelius corroborated Olstad’s testimony: the former testi-
fied that when he arrived at the mall the afternoon of De-
cember 18, after the deputies had arrived and left, he ob-
served the pickets out on the highway. When Crecelius
talked to Andrews about what had happened with the sher-
iff’s deputies, Andrews made a comment to Crecelius that
they (deputies) had asked them (pickets) to move out to the
street. (Tr. 67.) However, Olstad testified that in December
the sheriff’s deputies did not tell him to go out to the high-
way; they said, ‘‘you have to stop picketing here. If you
don’t stop picketing here, you will be arrested.’’ (Tr. 168.)
Olstad returned to the highway, because that is where the
deputies had told him to go in June.
According to Andrews, when the deputies arrived in De-
cember, he instructed them to order the pickets to move
‘‘next to the road in the grassy area.’’ (Tr. 230, 231.)
4.
The allegation in issue is based on the December picket-
ing; however, as the Board noted in its Remand Order, the
June picketing as some bearing on the events that occurred
during the December picketing.
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On January 27, 1992, the Supreme Court decided the case of
Lechmere, Inc. v. NLRB, 139 LRRM 2225, a case containing issues
similar to those presented here. I have made no attempt to assess
the impact, if any, of Lechmere, Inc. on the instant case as any such
effort would exceed the scope of the Board’s remand order.
5 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.
I conclude that, under the facts and circumstances of this
case on both occasions, sheriff’s deputies were acting as
agents of Respondents. Dillard’s, Inc., 305 NLRB 1102,
1107 (1992). None of these agents were called as witnesses
by their principals, the Respondents, who are charged with
responsibility for the deputies’ actions. Because an unidenti-
fied deputy told Olstad in June that he and the other pickets
must move to the highway deceleration lane and picket, Re-
spondents are responsible for this order. In December, Olstad
reasonably believed that the prior police order was still in ef-
fect because no credible evidence was presented to show that
Respondents had changed or modified their position .
Finally, even if the grassy area or the parking lot perimeter
was made available to the pickets, given the distance from
this area to the Pay Less store and for other reasons recited
at page 18 of my original decision, would again find that no
reasonable means of communicating with the targeted audi-
ence existed because even here, the picketing was generally
ineffective, possibly dangerous, and enmeshed neutral em-
ployees. See Loehmann’s Plaza, 305 NLRB 663 (1991).
II. CONCLUSIONS AND RECOMMENDED DISPOSITION OF
THIS PROCEEDING
Accordingly, I hereby adopt by reference, without modi-
fication, the findings of fact, conclusions of law, remedy, and
recommended Order4 set forth in my decision issued on June
26, 1991, and I recommend that Respondents Pay Less Drug
Stores Northwest, Inc. and Richard A. Vandervert and Harlan
Douglass d/b/a Douglass-Vandervert Developers d/b/a
Wandermere Mall, Spokane, Washington, their officers,
agents, successors, and assigns, be ordered by the Board to
take the action set forth in that recommended Order.5