Payless Drug Stores

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 678 (N.L.R.B. 1993)

678
311 NLRB No. 68
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Payless Drug Stores Northwest, Inc. and United
Food and Commercial Workers International
Union, Local 1442, AFL–CIO. Case 31–CA–
18795
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On May 20, 1992, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
General Counsel and the Union filed exceptions and
supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) by excluding nonemployee pickets and
handbillers because at that time its lease conferred on
the Respondent no more than a nonexclusive right to
use the area from which the union representatives had
been barred. For the reasons discussed, we affirm that
finding of a violation. The judge also found, however,
that under an amended lease granting the Respondent
an exclusive right to the sidewalk’s use, the Respond-
ent possessed a sufficient property right in the side-
walk area in front of its store to exclude the Union’s
pickets and handbillers from that area. He concluded
that the exclusion did not violate Section 8(a)(1). This
dismissal presents the issue we recently resolved in
Bristol Farms, 311 NLRB 437 (1993). Here, as in
Bristol Farms, we disagree with the judge’s finding
that the Respondent had a sufficient property right to
exclude these individuals after the lease was amended.
Accordingly, we reverse his dismissal of that com-
plaint allegation.
The Respondent’s drugstore is one of two anchor
stores in Manhattan Marketplace, a strip shopping cen-
ter in Manhattan Beach, California. The other anchor
is Bristol Farms. The drugstore is leased from Mission-
CCH1, a California limited partnership which owns the
shopping center. A large parking lot separates the store
from the street.
The Respondent and Mission-CCH1 entered into a
lease agreement (the original lease) on December 8,
1989. Under the original lease, the leased premises
consisted of the exterior of the drugstore, including the
covered areas of sidewalk in front of the drugstore and
the facility’s ‘‘garden area,’’ as well as
[t]he non-exclusive use of those portions of the
Shopping Center, together with the improvements
thereon, designated as the Common Facilities [as
described in an addendum to the lease] . . . in ac-
cordance with the provisions of paragraph 7 here-
of.
Paragraph 7 of the original lease provides in part:
7(b) Landlord agrees that Tenant, its customers,
employees and invitees, and the customers, em-
ployees and invitees of any subtenant, conces-
sionaire or licensee of Tenant, shall have through-
out the term of this Lease and any extension
thereof, in common with Landlord and other ten-
ants and occupants of space situated within the
Shopping Center and their customers, employees
and invitees (except truck loading and unloading
areas, which are for the exclusive use of the par-
ticular tenant for which they are provided), the
non-exclusive use of the Common Facilities, with-
out being required to pay any charge or fee what-
soever for such use, except as provided in this
Lease.
. . . .
7(e)(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 provided,
however, that Tenant’s sale of merchandise from
the sidewalk area in front of Tenant’s store build-
ing will not unreasonably interfere with pedestrian
or vehicular traffic in the Shopping Center. Ten-
ant shall, at its sole cost and expense maintain the
sidewalk area in a neat and clean condition and
repair any damage to the sidewalk area caused by
any periodic or seasonal sales, and Tenant’s obli-
gation shall not be considered Common Facilities
expense.
. . . .
7(i) Landlord may establish reasonable rules
and regulations applied on a non-discriminatory
basis for the proper and efficient operation and
maintenance of the Common Facilities, subject to
Tenant’s prior written approval.
From about April 4 or 5 to April 12, 1991, union
agents who were not employees of the Respondent
picketed and handbilled under the outside roofed area
in front of the door to the drugstore. The pickets wore
sandwich boards bearing the message:
PLEASE! DO NOT SHOP AT THIS NON-UNION PAY-
LESS DRUG STORE. THE EMPLOYEES AT THIS
STORE ARE NOT COVERED BY A COLLECTIVE BAR-
GAINING AGREEMENT
The handbills also requested customers not to shop at
Payless Drugs and referred them to a list of ‘‘Union
Drug Stores’’ in the area.
On April 12, 1992, the Respondent notified local
police, who removed the handbillers under threat of ar-
rest from the entire sidewalk area in front of the store.
679PAYLESS DRUG STORES
1 As noted by the judge, the General Counsel does not contend
that, in securing this amendment to the lease, the Respondent was
prompted by antiunion considerations.
2 In Lechmere, the Court’s grant of certiorari did not extend to the
Board’s holding, affirmed by the court of appeals, Lechmere, Inc. v.
NLRB, 914 F.2d 313, 325 (1st Cir. 1990), that the employer had vio-
lated Sec. 8(a)(1) of the Act by attempting to expel organizers from
public property adjoining the privately owned shopping center on
which the employer’s store was situated. The Board thereafter re-
affirmed that holding on remand, 308 NLRB 1074 (1992).
3 Robins v. Pruneyard Shopping Center, 153 Cal.Rptr. 854, 592
P.2d 341 (Cal. 1979), affd. 447 U.S. 74 (1980). The court found that
the shopping center could, however, adopt reasonable time, place,
and manner rules concerning the exercise of free speech at the shop-
ping center.
4 Northern California Newspaper Organizing Committee v. Solano
Associates, 239 Cal.Rptr. 227 (Cal.App. 1 Dist. 1987).
5 See Bristol Farms, supra.
6 There is no evidence that the Respondent has adopted any rules
regulating time, place, or manner of picketing or handbilling on the
sidewalk in front of the drugstore that it could have invoked if it
had a sufficient property interest to justify such regulation. Indeed,
there is no evidence that the union representatives’ conduct was any-
thing but peaceful.
7 Member Oviatt agrees with the judge that, with respect to the
April 12 incident, the Respondent did not possess a sufficient prop-
erty interest under the original lease to justify the exclusion of the
union representatives. Member Oviatt concludes, therefore, that the
Respondent violated Sec. 8(a)(1) when it ordered them removed. As
to the April 19 incident, Member Oviatt notes that he expressed
strong reservations as to the result in Bristol Farms, supra at fn. 12,
in circumstances similar to those in this case. He is nonetheless con-
strained, as in Bristol Farms, to find that under California law the
Respondent cannot justify excluding the Union, and that the Re-
spondent violated Sec. 8(a)(1) in that incident as well.
The handbillers returned to the scene on April 17, 18,
and 19. On April 19, the Respondent requested the
Manhattan Beach city attorney to remove the
handbillers. According to the Respondent, the city at-
torney did not believe that, under the original lease,
that action was justified, and therefore declined to ex-
clude the pickets.
On April 19, 1992, the Respondent and Mission-
CCH1 amended the lease to modify original lease
paragraph 7(e)(4) to read in part as follows:
It is agreed that Tenant has the exclusive right to
use that area in front of Tenant’s store up to the
edge of the curb for the sale of merchandise from
the sidewalk area in front of Tenant’s building
provided, however, that Tenant’s sale of merchan-
dise from the sidewalk area will not unreasonably
interfere with vehicular traffic in the Shopping
Center.
After the lease amendment, the union agents were
again excluded from the sidewalk.1
At the hearing, which was held before the Supreme
Court decided Lechmere, Inc. v. NLRB, 112 S.Ct. 841
(1992), the General Counsel took the position that the
union representatives were entitled to picket and hand-
bill outside the drugstore because the Union’s Section
7 right outweighed the Respondent’s property right
under the ‘‘balancing of interests’’ analysis set forth in
Jean Country, 291 NLRB 11 (1988). After the Court
in Lechmere rejected the ‘‘balancing of interests’’ anal-
ysis, the General Counsel, on brief, abandoned this
theory and limited his position to an attack on the Re-
spondent’s asserted property right.2
The judge found that the original lease granted the
Respondent only a nonexclusive right to use the en-
trance in front of its store and that Mission-CCH1 re-
tained the right to control the property. The judge
therefore rejected the Respondent’s property-rights de-
fense to the alleged 8(a)(1) interference with the pick-
eting and handbilling that occurred before the lease
was amended. The judge found, however, that the
property interest conveyed under the amended lease
was significantly greater than under the original lease
and that under the amendment the Respondent’s exclu-
sion of the union representatives was justified. In mak-
ing these findings, the judge summarily rejected the
General Counsel’s contention, restated in his excep-
tions, that the free speech and petition provisions of
the California State constitution dictated a contrary re-
sult. We disagree and find merit in the General Coun-
sel’s exceptions.
In Bristol Farms, supra, the Board considered the
property interest of the other anchor store in Mission-
CCH1’s shopping center under a lease essentially iden-
tical to the Respondent’s amended lease. The Board
looked to the law of the State of California to establish
the extent of the respondent’s property rights and, thus,
whether the respondent had the requisite property in-
terest to support a property-rights defense. The Board
noted that the California Supreme Court had held that
a shopping center’s property right was limited by the
free speech and petition provisions of the California
constitution.3 In affirming the state court’s decision,
the United States Supreme Court in Pruneyard Shop-
ping Center v. Robins, 447 U.S. 74 (1980), upheld
California’s right to restrict the property rights of shop-
ping centers. Thereafter, a California appellate court
extended Pruneyard to permit the distribution of union
handbills at a shopping center.4
Here, as in Bristol Farms, we find that under Cali-
fornia law the Respondent had no right to exclude the
union agents from the entrance to its drugstore under
either the original lease or the amended lease.5 Ac-
cordingly, as the Respondent has no property interest
defense to the allegations of interference with the
union representatives’ activities, which are protected
by Section 7 of the Act, and as the Respondent raises
no other defense to these allegations,6 we find that the
Respondent’s exclusion of the union agents on both
April 12 and 19, 1992, violated Section 8(a)(1) of the
Act.7
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 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.’’
CONCLUSION OF LAW
By prohibiting representatives of United Food and
Commercial Workers International Union, Local 1442,
AFL–CIO from engaging in peaceful picketing and
handbilling protected by the Act on the sidewalk in
front of the Respondent’s store in the Manhattan Mar-
ketplace shopping center, Manhattan Beach, California,
and, through local authorities, threatening those rep-
resentatives with arrest if they did not cease engaging
in this activity, the Respondent has violated Section
8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) of the Act, we shall order it to cease and desist
and to take certain affirmative action that will effec-
tuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Payless Drug Stores Northwest, Inc.,
Manhattan Beach, California, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of United Food and
Commercial Workers International Union, Local 1442,
AFL–CIO from engaging in peaceful picketing and
handbilling protected by the Act on the sidewalk in
front of the Respondent’s store in Manhattan Market-
place shopping center, Manhattan Beach, California,
and, through local authorities, threatening those rep-
resentatives with arrest if they do not cease engaging
in that activity, as long as that activity is conducted by
a reasonable number of persons and does not unduly
interfere with the normal use of facilities or operation
of businesses not associated with the Respondent’s
store.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its store at the Manhattan Marketplace
shopping center copies of the attached notice marked
‘‘Appendix.’’8 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent has 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT prohibit representatives of United
Food and Commercial Workers International Union,
Local 1442, AFL–CIO from engaging in peaceful pick-
eting and handbilling protected by the Act on the side-
walk in front of our store in the Manhattan Market-
place shopping center, Manhattan Beach, California,
and, through local authorities, threaten the representa-
tives with arrest if they do not cease engaging in that
activity, as long as that activity is conducted by a rea-
sonable number of persons and does not unduly inter-
fere with the normal use of facilities or operation of
businesses not associated with our store.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
PAYLESS DRUG STORES NORTHWEST,
INC.
Ann Reid Cronin, Esq., for the General Counsel.
Bob Tiernan, Esq. (Tiernan & Orheim), of Lake Oswego,
Oregon, for the Respondent.
David Adelstein, Esq. (Schwartz, Steinsapir, Dorhmann &
Sommers), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on November 6 and 7, 1991, in Los
Angeles, California, pursuant to a complaint and notice of
hearing issued by the Regional Director for Region 31 of the
National Labor Relations Board (Board) on June 6, 1991,
based on a charge filed on April 24, 1991, and docketed as
Case 31–CA–18795 by the United Food and Commercial
Workers International Union, Local 1442, AFL–CIO (the
Charging Party or the Union) against Payless Drug Stores
Northwest, Inc. (Respondent). Posthearing briefs were due on
January 29, 1992.
The complaint alleges that Respondent’s agents excluded
union agents from the sidewalk at the entrances to Respond-
681PAYLESS DRUG STORES
1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings here are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
ent’s Manhattan Beach store in violation of Section 8(a)(l) of
the National Labor Relations Act (Act). Respondent denies
that its conduct violated the Act.
FINDINGS OF FACT
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record here, including helpful briefs from the
General Counsel and Respondent, and from my observation
of the witnesses and their demeanor, I make the following1
I. JURISDICTION
At all times material, Respondent has been a Maryland
corporation with an office and place of business in Manhat-
tan Beach, California, where it has been engaged in the retail
drugstore business. Respondent as part of its business oper-
ations annually enjoys revenues in excess of $500,000 and
annually purchases and receives goods or services from out-
side the State of California of a value in excess of $50,000.
Respondent is therefore an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a chain of drugstores including a new
facility (the Drugstore) in the newly constructed Manhattan
Marketplace shopping center (the Shopping Center) on Rose-
crans Avenue in Manhattan Beach, California. At all relevant
times the Drugstore’s employees have not been represented
by a labor organization.
The Union represents employees in the retail trade in the
geographical area in which the Drugstore is located. Among
those represented employees are employees of employers
who are competitors of the Drugstore.
B. The Drugstore
1. The physical layout
The Drugstore is one of two anchor tenants in the Manhat-
tan Marketplace, a new strip mall shopping center which was
not as yet fully occupied at the time of the events at issue
here. The shopping center is located on Rosecrans Avenue
in Manhattan Beach, California, and is accessible from a
main shopping center entrance and a second entrance to the
west. The Drugstore and a grocery store, the two main or an-
chor stores in the shopping center, as well as a few smaller
stores, are in a row parallel to but well set back from Rose-
crans and separated from it by a substantial parking lot.
These stores all face toward Rosecrans and are fronted by a
sidewalk or promenade. A separate, smaller strip of stores
abuts Rosecrans and proceeds directly away from the street
toward the setback store strip at right angles to it.
The Drugstore building is essentially square with an en-
closed area of about two-thirds of an acre. The roof of the
structure overhangs the front sidewalk area providing a cov-
ered area Respondent utilizes for the display and sale of mer-
chandise. The front of the building has two main doors
which are located on the front wall of the structure, but are
well under the portico.
2. The lease
The shopping center has at all times material been owned
and operated by Mission-CCH1, a California state limited
partnership (the landlord). Respondent and the landlord en-
tered into a lease agreement on December 8, 1989. The
agreement (the original lease), which refers to Respondent as
Tenant, sets forth the premises covered at section 2:
2. LEASED PREMISES
Landlord hereby leases unto Tenant, and Tenant
hereby rents from Landlord, for the consideration and
upon the terms and conditions herein set forth, the fol-
lowing premises:
(a) That certain Premises shown in cross-hatching on
Exhibit A, located on the Shopping Center described in
Exhibit B containing approximately 27,462 square feet,
together with the store and improvements to be con-
structed thereon pursuant to paragraph 8 hereof (Leased
Premises); and
(b) The non-exclusive use of those portions of the
Shopping Center, together with the improvements there-
on, designated as the Common Facilities on Exhibit A,
in accordance with the provisions of paragraph 7 here-
of.
The diagonal ‘‘hatch marks’’ on Exhibit A of the Lease in-
clude the exterior of the Drugstore including the covered
areas of the sidewalk and the facility’s ‘‘garden center.’’
Paragraph 7(b) of the original lease entitled ‘‘Common Fa-
cilities’’ provides in part:
(b) Landlord agrees that Tenant, its customers, em-
ployees and invitees, and the customers, employees and
invitees of any subtenant, concessionaire or licensee of
Tenant, shall have throughout the term of this Lease
and any extension thereof, in common with Landlord
and other tenants and occupants of space situated with-
in the Shopping Center and their customers, employees
and invitees (except truck loading and unloading areas,
which are for the exclusive use of the particular tenant
for which they are provided), the non-exclusive use of
the Common Facilities, without being required to pay
any charge or fee whatsoever for such use, except as
provided in this Lease.
Paragraph 7(e)(4) of the original lease provides in part:
(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 provided, however, that Tenant’s sale of
merchandise from the sidewalk area in front of Ten-
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The area utilized for the display and sale of merchandise from
which the handbillers were excluded included the entire sidewalk
area in front of the store.
3 Richard Wallace, the Drugstore manager, credibly testified to
noting the handbilling on these dates in his monthly planning cal-
endar. I credit this testimony over the testimony of others to the con-
trary.
ant’s store building will not unreasonably interfere with
pedestrian or vehicular traffic in the Shopping Center.
Tenant shall, at its sole cost and expense maintain the
sidewalk area in a neat and clean condition and repair
any damage to the sidewalk area caused by any peri-
odic or seasonal sales, and Tenant’s obligation shall not
be considered a Common Facilities expense.
Original lease paragraph 7(i) provides in part:
Landlord may establish reasonable rules and regulations
applied on a non-discriminatory basis for the proper
and efficient operation and maintenance of the Com-
mon Facilities, subject to Tenant’s prior written ap-
proval.
On April 19, 1991, the parties entered into a first amend-
ment to lease agreement which deleted original lease para-
graph 7(e)(4), quoted in full supra, and replaced it with the
following:
It is agreed that Tenant has the exclusive right to use
that area in front of Tenant’s store up to the edge of
the curb for the sale of merchandise from the sidewalk
area in front of Tenant’s building provided, however,
that Tenant’s sale of merchandise from the sidewalk
area will not unreasonably interfere with vehicular traf-
fic in the Shopping Center. Tenant shall, at its sole cost
and expense maintain the area in a neat and clear con-
dition and repair any damage to the sidewalk area
caused by any periodic or seasonal sales and Tenant’s
obligations shall not be considered a Common Facilities
expense.
Save for the quoted change, the first amended lease ratified
and reaffirmed the original lease.
3. Events
On or about April 4 or 5 through April 12, 1991, agents
of the Union located themselves at the outside of the Drug-
store’s two doors but under the structure’s outside roofed
area. This placed them well within the area used by Re-
spondent to display merchandise offered for sale. They wore
sandwich boards bearing the message:
PLEASE!
DO NOT SHOP
AT THIS
NON-UNION
Payless Drugs
STORE.
THE EMPLOYEES AT THIS
STORE ARE NOT COVERED
BY A COLLECTIVE
BARGAINING AGREEMENT
The union agents also passed out handbills asking customers
not to shop at the store and directing customers to other
‘‘Union Drug Stores’’ listed by name and address in the
area.
On April 12, 1991, Respondent contacted local police and
had the handbillers removed under threat of arrest.2
Handbillers returned to the sidewalk area in front of the
Drugstore on April 17, 18, and 19, 1991.3 Respondent at-
tempted to induce the Manhattan Beach city attorney to again
remove the handbillers. The city attorney, however, as Re-
spondent notes on brief at 7, ‘‘did not believe the language
[of the Drugstore’s original lease] was strong enough to ex-
clude the pickets.’’ Respondent then amended the original
lease on April 19, 1991, as noted supra, and the pickets were
again excluded that same day.
4. Analysis and conclusions
The Board has repeatedly addressed the situation where
property holders act to exclude employees and or union
agents from that property. The Board’s cases have identified
the property interests and the rights under the Act in conflict
and determined in given situations whether or not the former
rights allowed exclusion of the latter from the property.
The instant case at trial seemed to again present the bal-
ancing process putting the property interests of Respondent
and the rights of the Union into the scales. This seemingly
conventional litigation was overtaken by events and the
evolving law discussed infra. The change in the law and its
implications for the instant case are discussed initially below.
Thereafter the remaining case of the General Counsel is ad-
dressed.
a. The Supreme Court’s January 27, 1992 decision in
Lechmere Inc. v. NLRB
This case was tried with the Board’s lead case of Jean
Country, 291 NLRB 11 (1988) (Jean Country), in the minds
of all parties. The record closed on November 7, 1991, and
posthearing briefs were ultimately due on January 29, 1992.
On January 27, 1992, the Supreme Court issued its decision
in Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992), rejecting
substantial portions of the Board’s Jean Country analysis.
In an admirable display of rapid reanalysis, counsel for the
General Counsel in a brief mailed the day following the
Court’s decision, January 28, 1992, acknowledged the Su-
preme Court’s decision in Lechmere and abandoned her ear-
lier argued Jean Country ‘‘balancing of interests’’ theory of
a violation. Accordingly, I shall not address that argument
nor Respondent’s counterarguments respecting the balancing
of property rights and Section 7 rights under the Board’s de-
cision in Jean Country. I regard that earlier-expressed theory
of a violation as withdrawn.
b. The General Counsel’s attack on Respondent’s
property rights here
The General Counsel did not abandon and on brief vigor-
ously pressed her argument that Respondent here simply has
insufficient property rights to the property at issue to exclude
union handbillers irrespective of the nature and extent of
683PAYLESS DRUG STORES
their rights under the Act. This argument remains in issue
and is discussed below.
1. The legal argument
The General Counsel argues that the instant case is con-
trolled by the Board’s recent decision in Johnson & Hardin
Co., 305 NLRB 690 (1991). In that case the Board found
that an employer had improperly excluded union handbillers
from the driveway leading to its plant. The Board found the
driveway was on land owned by the State of Ohio and that
Respondent
did not possess an interest in this property sufficient to
exclude from it trespassers, such as the organizers here,
who were not interfering with the Respondent’s right to
use the driveway for ingress and egress. [305 NLRB
690, supra.]
The Board specifically held that its Jean Country balancing
test does not come into play in such a situation simply be-
cause there is an insufficient property interest on the part of
the employer to exclude individuals from the property even
if their presence is not protected by Section 7 of the Act.
Ibid.
In Giant Food Stores, 295 NLRB 330 (1989), a case relied
on by the General Counsel, the Board found the employer
leasing land in a shopping center did not have ‘‘any exclu-
sory property interest in the sidewalk in front of the [employ-
er’s] store or in the shopping center parking areas’’ because
the lease gave the employer ‘‘merely the ‘non-exclusive’
right to ‘use’ such common areas’’ and the landlord was ob-
ligated to maintain common areas and keep them free of ob-
structions (295 NLRB supra at 332). See also Polly Drum-
mond Thriftway, 292 NLRB 331 (1989).
The General Counsel further argues that the State of Cali-
fornia recognizes a free speech right of access to common
areas of shopping centers citing Robins v. Pruneyard Shop-
ping Center, 23 Cal.3d 899, 910; 153 Cal.Reptr. 854, 869,
592 P.2d 341 (1979), affd. 447 U.S. 74 (1980). Counsel for
the General Counsel notes that in In re Lane, 71 Cal.2d 872,
79 Cal. Reptr. 729, 733, 457 P.2d 561 (1969), the California
Supreme Court upheld the right of a labor union to handbill
on a privately owned sidewalk in front of a grocery store.
From these cases the Government argues on brief at 9:
While employers in other jurisdictions may be able to
claim a strong property interest in these areas, Respond-
ent cannot do so, inasmuch as, under the law of this
State, it has no property interest or right to [] exclude
free speech and petitioning activities in front of its
Manhattan Marketplace store.
Respondent emphasizes the fact that it uses the covered
sidewalk area involved here as an extension of its sales area.
Respondent cites a panoply of cases for the proposition that
otherwise protected activity may be banned from sales areas
by employers. Thus, argues Respondent, it was entitled to
exclude the handbilling union agents just as if they had been
handbilling in the sales area within the building. The General
Counsel responds to this argument on brief at 10:
Respondent’s decision to display merchandise on the
sidewalk in front of its store should have little effect on
the free-speech guarantee recognized by California
courts. California courts have repeatedly recognized the
right to handbill in the common area of shopping cen-
ters. These shopping centers frequently have a mixed
use: they provide walkways for customers between
stores and on occasion they are used to display mer-
chandise. In these circumstances, Respondent cannot
immunize itself from handbilling and public criticism
by displaying merchandise on the sidewalk.
2. Respondent’s rights under the original and
amended lease
The applicable lease provisions have been quoted supra. It
is appropriate to consider initially the terms of the original
lease and thereafter the terms of the amended lease. The
original lease clearly designates the areas at issue here as
‘‘Common Facilities’’ for the nonexclusive use of all shop-
ping center tenants, their employees, customers, invitees, etc.
At original lease paragraph 7(e) the landlord commits itself
to insure, repair, replace, and maintain common facilities at
its sole expense. Original lease paragraph 7(e)(4), quoted in
full supra, specifically addresses the area from which the
handbillers were excluded. The area is specifically noted as
part of the ‘‘common area.’’ Respondent is given the right
to use the area for sales so long as the activity ‘‘will not un-
reasonably interfere with pedestrian or vehicular traffic in the
Shopping Center.’’ Further Respondent is obligated at its
own expense to keep the area clean, properly maintained, and
in good repair.
The April 19, 1991 amendment to the lease changes only
the first sentence of paragraph 7(e)(4) as quoted in full,
supra. Perusal of the two versions reveals two changes of
significance. First, the amended lease provides for Respond-
ent’s ‘‘exclusive’’ use of the area in front of its store for the
sale of merchandise whereas the earlier original language
simply provided a nonexclusive use of the area for Respond-
ent’s sale of merchandise. Second the amended lease requires
that Respondent’s sales activity not unreasonably interfere
with vehicular traffic whereas the original language required
Respondent’s sales activities not to interfere with either ve-
hicular or pedestrian traffic in the shopping center.
3. Analysis and conclusion
The parties were aware of and briefed the proposition as-
serted in Jean Country, 291 NLRB 11 at 13 fn. 7 (1988):
Of course, there is an initial burden on the party
claiming the property right to show, through testimonial
or documentary evidence, that it has an interest in the
property and what its interest in the property is. A party
has no right to object on the basis of other persons’
property interests, and an employer’s mere objections to
having union pickets outside its establishment does not
in itself rise to the level of a property interest. See
Barcus Bakery, 282 NLRB 351 (1986), enfd. mem. sub
nom. NLRB v. Caress Bake Shop, 833 F.2d 306 (3rd
Cir. 1987). There the Board found it unlawful for the
respondent employer to eject union organizers from pri-
vately owned property which abutted the employer’s
plant but which was under the control of another estab-
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel did not attack the circumstances under
which the amended lease was negotiated and signed nor argue that
the rights created by the amended lease were somehow lessened
thereby.
5 I do not find that the California property rights cases cited by
the General Counsel command a different result.
lishment that was not shown to object to the organizers’
presence. 282 NLRB 351, at fn. 2.
The General Counsel argues and I agree that this minimum
property interest requirement was not diminished by the Su-
preme Court’s Lechmere decision. Indeed it seems axiomatic
that a property interest must be demonstrated whenever the
right to exclude or prohibit activity in particular areas is as-
serted. Only those who have a sufficient interest in property,
an exclusory interest, may properly remove or seek the re-
moval of union handbillers.
The General Counsel correctly notes that, as in Barcus
Bakery, supra, the fee holder here, the landlord, has not been
shown to have ‘‘joined Respondent’’ in excluding the
Union’s agents from the property at issue. Respondent’s con-
duct must therefore be justified by its own independent prop-
erty rights. It is therefore appropriate to immediately turn to
Respondent’s property interests here.
Respondent’s interest in the property at issue is based en-
tirely on the original lease to April 19, 1991, and the first
amended lease thereafter. Substantial portions of those docu-
ments have been quoted above. I find the original lease
granted Respondent no more than a nonexclusive right to use
the area at issue here in common with other tenants and that
the landlord retained substantial rights of control. Such non-
exclusive use and limited control of the property did not give
Respondent an exclusory right with respect to union
handbillers under Johnson & Hardin Co., 305 NLRB 690
(1991); Giant Food Stores, 295 NLRB 330 (1989); and Polly
Drummond Thriftway, 292 NLRB 331 (1989). Accordingly,
Respondent’s admitted exclusion of the handbillers on April
12, 1991, may not be justified by Respondent’s property in-
terest at that time and therefore violated Section 8(a)(1) of
the Act. To this extent the General Counsel’s complaint is
sustained.
The first amended lease signed on April 19, 1991, substan-
tially increased Respondent’s property interests in the area at
issue here. Thus, the first amended lease paragraph 7(e)(4),
quoted in full supra, gave Respondent exclusive rights to the
area and, unlike the original lease language, did not limit Re-
spondent’s usage to only those activities which did not inter-
fere with pedestrian traffic. The General Counsel argues that
the lease amendment did not delete or modify original lease
provision 7(b) nor confer on Respondent the exclusive right
to control the area. I read the lease amendment as conferring
greater rights than the General Counsel concedes. I do not
believe the retention of original lease paragraph 7(b) defeats
the clear language of new paragraph 7(e)(4) particularly
given the use that Respondent was putting to the property at
the time—a use which must have been well known to the
landlord at the time the amendment was entered into.
I find the rights Respondent held under the first amended
lease are significantly greater than those held under the origi-
nal lease and, further, are greater than those held by the em-
ployers in the General Counsel’s cited cases. I find that Re-
spondent’s property rights under the first amended lease4 are
sufficient to meet the burden in footnote 7 in Jean Country
quoted in full supra. In so concluding, I reject the argument
of the General Counsel that under the first amended lease the
landlord ‘‘possessed a property interest in the sidewalk area
that was superior to that of Respondent,’’ brief at 10. Rather
I find that Respondent had at least an equal right with the
landlord under the first amended lease to seek to exclude
union handbillers from the areas at issue here.
I have noted supra that the General Counsel on brief aban-
doned any theory of a violation based on Jean Country, 291
NLRB 11 (1988), other than the footnote 7 ‘‘threshold
issue’’ discussed here, in the face of the Court’s decision in
Lechmere. Given that position and my finding here that Re-
spondent had substantial property rights under the first
amended lease, I find that Respondent did not violate the Act
by excluding union handbillers at any time after the first
amended lease was entered into on April 19, 1991.5 To this
extent the General Counsel’s complaint is without merit and
will be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act on April
12, 1991, by improperly excluding and threatening with ar-
rest representatives of United Food and Commercial Workers
International Union, Local 1442, AFL–CIO from the side-
walk in front of its Manhattan Marketplace Mall store at a
time when it did not have a property interest in the area suf-
ficient to justify such action.
4. Respondent did not violate the Act by excluding rep-
resentatives of United Food and Commercial Workers Inter-
national Union, Local 1442, AFL–CIO from the sidewalk in
front of its Manhattan Marketplace Mall store after entrance
into its first amended lease on April 19, 1991.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]