S E Nichols of Ohio, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1972

200 N.L.R.B. 1130 (N.L.R.B. 1972)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S E Nichols of Ohio, Inc and Retail Clerks
International Association , Local 698, AFL-CIO
Case 8-CA-6938
December 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 3, 1972, Administrative Law Judge'
Joseph I Nachman issued the attached Decision in
this proceeding Thereafter, the Charging Party filed
exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Trial Examiner This case tried
before me at New Philadelphia, Ohio, on June 20,i with all
parties duly represented, involves a complaint 2 pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, which alleged that S E Nichols of Ohio, Inc
(herein Respondent or Company), violated Section 8(a)(1)
of the Act by threatening to cause, and causing, the arrest
of agents of Retail Clerks International Association, Local
698, AFL-CIO (herein Union or Local 698), who were not
employees of Respondent, because they handbilled and
picketed in a parking lot adjacent to Respondent's retail
store, which parking lot was used in common by Respon-
i This and all dates hereafter mentioned are 1972
2 Issued April 21 on a charge filed March 24 and amended April 21
3 No issue of commerce or labor organization is involved The complaint
alleges and the answer admits, facts which establish these jurisdictional
elements I find those facts to be as pleaded Moreover the Board has
heretofore found Respondent to be subject to the Board sjurisdiction and
Local 698 to be a labor organization See S E Nichols of Ohio Inc 195
NLRB No 172 which concerned the same store involved in the instant
case and which will hereafter be more fully discussed
dent and four other retail establishments in a small
shopping center Respondent, by answer, admitted that it
caused the arrest of the Union's agents, but denied that it
engaged in any unfair labor practice For reasons hereafter
more fully stated, I find and conclude that the complaint
should be dismissed
At the trial, all parties were afforded full opportunity to
introduce relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to submit briefs Oral argument was waived Briefs
submitted by the General Counsel and Respondent,
respectively, have been duly considered Upon the entire
record, I make the following
FINDINGS OF FACT3
Background
Respondent is engaged in the operation of a chain of
retail stores, where general merchandise is sold at retail
The store at New Philadelphia, Ohio, 1 is one of five
contiguous establishments in a small shopping center
which face a parking lot provided for the common use of
all tenants in the center The Nichols store, having from
60,000 to 75,000 square feet, is by far the largest building in
the group As part of its lease, Respondent has the
obligation to maintain the parking lot referred to "includ-
ing lighting and snow removal and the maintenance of the
surface thereof "
On March 17, the Board issued its Decision and Order in
the case cited supra, fn 3, dealing with events occurring in
the course of the Union's attempt to organize Respondent's
New Philadelphia store In that case, the Board found that
Respondent by its supervisors, including specifically James
Durda,4 coercively interrogated employees concerning
their union activities, promised or granted benefits to
employees, asked employees to report on the union
activities of fellow employees, threatened employees with
discharge or other reprisal, and discharged two employees,
all to discourage membership in the Union 5
The Alleged Unfair Labor Practice
On March 20, George Henmgan, the Union's organizing
director, accompanied by two of his assistants, David Bible
and Helen Bittenger, none of whom is an employee of
Respondent, went to the parking lot referred to, where
Hennigan stationed himself at a point in the parking lot
approximately 25 to 30 feet in front of the entrance to the
Nichols store and began passing out handbills to persons in
the area that he observed entering or leaving that store 6
4 The complaint herein alleges and the answer admits that at all times
material Durda was the manager of the New Philadelphia store
s The Board issued its customary cease-and-desist order providing for
reinstatement and backpay for the two discnminatees
6 The handbills after referring to Nichols as the self-styled dynamic
price fighter, stated that the Board had found Nichols guilty of violating
Federal Law which protects employees right to engage in union activity
and had ordered it to stop the unlawful activity and to reinstate the two
employees with backpay
200 NLRB No 161
S E NICHOLS OF OHIO
Shortly after the handbilling began, Store Manager Durda,
and General Supervisor Castsky,7 went to the parking lot
and told Hennigan, in substance, that the parking lot was
private property, that Respondent did not want him there,
and that unless Hennigan left promptly he (Durda) would
cause him to be arrested Henmgan insisted that he had a
lawful right to continue the activity, and refused to leave
Shortly thereafter, two police cruisers came onto the
parking lot and, after a short conference between the police
officers and Durda, the cruisers left the area with Durda a
passenger in one of the cruisers In a short time, one of
these cruisers returned to the lot with Durda, and the
police officers then informed Hennigan that they had a
warrant for his arrest, and showed him a document which
charged that Henmgan was trespassing in violation of an
Ohio statute This exchange took place in the presence of
Durda, and some 10 to 12 employees of Respondent, who
came onto the parking lot from the store The officers took
Hennigan to the police station, where he was booked,
ordered to appear before the Mayor of New Philadelphia
on March 24, and released on his own recognizance These
events occurred at about 6 p m, and thereafter the
handbilling was continued by two other agents of the
Union, namely Bittenger and Finley, until about 7 30 p in,
but no action appears to have been taken against them on
that day
The following morning (March 21), Union Agents
Hennigan, Finley, and Bible returned to the parking lot
Hennigan stationed himself in approximately the same
location as he had the preceding day, and again distributed
the handbills above referred to In addition, Hennigan
carried a sign which read, "Nichols unfair, please do not
shop Employees and delivery men not solicited Retail
Clerks Union, AFL-CIO " Finley also carried such a sign
but did not handbill Bible, during this picketing and
handbilling, was taking moving pictures of all activity at
the scene Shortly after this activity began, Store Manager
Durda, accompanied by some six or seven of his employ-
ees, approached Hennigan in the parking lot, and again
threatened to have the union agents arrested for trespass-
ing if they did not leave promptly After picketing and
handbilling for about 1-1/2 hours, it began to rain and
Hennigan and his associates terminated their activity and
left the parking lot
The following day (March 22), Hennigan learned that
the police had arrest warrants for him, and for Union
Agents Finley, Bible, Bittenger, and Cnssman Arrange-
ments were made for these individuals to appear at the
police station on March 24, at which time the warrants
were served and the individuals were released on their own
recognizance 8 The offense charged in each warrant is
"trespassing " Store Manager Durda admitted that the
warrants were issued on his complaint, and that his reason
for causing the arrest of the several union agents was that
7 Sec 7 of the complaint alleges activity by an authorized agent and
supervisor whose name is unknown At the trial, Durda testified that the
individual who accompanied him to the parking lot on March 20 was
Walter Castsky who is a general supervisor of a group of Nichols stores
and his (Durda s) immediate supervisor
8 Copies of the arrest warrants are in evidence Except for the warrant
served on Hennigan March 20 none of the warrants contains any direction
1131
he directed them to leave the parking lot, and that they
refused 9
Contentions and Conclusions
Although the General Counsel submitted his brief
approximately a month after the Supreme Court's Decision
in Central Hardware Co v N L R B, 407 U S 539, he
contends that Food Employees etc v Logan Valley Plaza,
391 U S 308, controls the decision in the instant case,
arguing that as the picketing and handbilling here were
directed only against Respondent and were in all respects
peaceful and protected by the First Amendment to the
Constitution, the property rights protected by the trespass
laws of the State of Ohio must yield to the organizational
rights of the employees Additionally, the General Counsel
argues that his analysis of Logan Valley, supra is confirmed
by the Supreme Court's Decision in Central Hardware
supra, because in that case "Justice Powell attempted to
narrow the scope of Logan Valley by asserting that the
principle enunciated in Babcock & Wilcox as to the conflict
between organization rights and property rights is limited
to the facilitation of the exercise of employees' Section 7
rights within the context of an organizational campaign
and the yielding of property rights it may require is
both temporary and mammal " I am unable to agree with
the General Counsel's contention that Logan Valley
controls the disposition of this case, or that Central
Hardware supports his theory of a violation here
Irrespective of what the Board may have held in cases
prior to the Supreme Court's decision in Central Hardware,
supra,'° the law is now settled that Logan Valley decided
only constitutional issues, not Section 7 rights, and the fact
that one's constitutional rights may have been violated in a
given case does not solely by virtue of that fact become a
violation of Section 7 of the Act, as the General Counsel
seems to contend here As Mr Justice Marshall, who
authored the opinion in Logan Valley, said in his dissent in
Central Hardware, supra
I agree with the Court that this case should have been
considered under N L R B v Babcock & Wilcox
Company That case is, as the opinion of the Court
suggests, narrower than [Logan Valley] It does
not purport to interpret the National Labor Relations
Act (NLRA) so as to give union members the same
comprehensive rights to free expression on the private
property of an employer that the First Amendment
gives to all citizens on private property that is the
functional equivalent of a public business district But
Babcock & Wilcox is, in another sense, even broader
than Logan Valley It holds that where a union has no
other means at its disposal to communicate with
employees other than to use the employer's property or
where the union is denied the access to employees that
the employer gives antiunion forces, the union may
as to when and where the accused should appear, nor does the record
contain any evidence concerning disposition of the cases
9 The foregoing findings are based on the credited testimony of
Hennigan and the admissions of Darda
io See Central Hardware Company 181 NLRB 491 enforced 439 F 2d
1321 (C A 8) Scott Hudgens 192 NLRB No 111 Priced Less Discount
Foods Inc 162 NLRB 872
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
communicate with employees on the property of the
employer Congress gave unions this right in Section 7
of the [Act] The First Amendment gives no such
broad right to use private property to ordinary
citizens 11
Thus, I interpret Central Hardware, as holding that,
although an employer may violate Section 8(a)(1) of the
Act by denying a union the right to engage in organization-
al activity on his private property, that result will follow
only if facts are shown which meet the criteria enunciated
in Babcock & Wilcox Company, 351 US 105 As the
General Counsel offered no evidence that would bring the
case within Babcock & Wilcox criteria, it follows that the
complaint herein must be dismissed 12 I so find and
conclude 13
Upon the foregoing findings of fact, and upon the entire
record in thi case, I make the following
11 The only difference of opinion between the dissent and the majority in
Central Hardware was solely on the question of whether the remand should
be to the court of appeals as the majority held or to the Board as the
dissenters would have done
12 Not only did the General Counsel try his case on the theory that
Logan Valley was controlling but with full knowledge of the Supreme
Courts holding in Central Hardware (he cites the case in his brief) No
motion has been filed with me for leave to reopen the record to present
evidence on the Babcock & Wilcox criteria What little evidence there is in
the record on that subject would seem to indicate that it is quite improbable
that such fact" could be established The record shows that Respondents
store is located within the corporate limits of the City of New Philadelphia
Ohio which, according to Rand McNally, has a population of about 14 500
Presumably most if not all the employees come from that area and can be
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) of the Act , and is engaged in commerce within
the meaning of Section 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 The General Counsel has failed to establish by a
preponderance of the evidence that Respondent had
engaged in any unfair labor practice proscribed by Section
8(a)(1) of the Act, as alleged in the complaint
4 The complaint herein should be dismissed
Upon the foregoing findings of fact , conclusions of law,
and the entire record in the case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER 14
The complaint herein is dismissed in its entirety
readily located Also the record shows that the parking lot is entered from a
public street , and no reason appears why the Union could not have made its
appeals at that point
13 Whether the Union agents here can constitutionally be convicted of
trespassing upon Respondent s property (Cf Logan Valley supra with Lloyd
Corporation v Tanner 407 U S 551 decided June 22 , 1972), is an issue not
before me for decision , and concerning which I express no opinion
14 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions , and Order and all objections thereto shall be
deemed waived for all purposes