Schear's Food Center

National Labor Relations Board - Board Decisions

Aug 9, 1995

318 N.L.R.B. 261 (N.L.R.B. 1995)

261
318 NLRB No. 21
SCHEAR’S FOOD CENTER
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMfl, enfd. 188
F.2d 362 (fiMDBUfl*ERR17*fiMDNMfl3d Cir. 1951)fiMDBUfl*ERR17*fiMDNMfl. We have carefully examined the record and
find no basis for reversing the findings.
2 We agree with the judge that the Respondents violated Sec.
8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMfl by discriminatorily prohibiting repre
from engaging in protected handbilling and picketing on private
property. See, e.g., Riesbeck Food Markets, 315 NLRB 940 (fiMDBUfl*ERR17*fiMDNMfl1994)fiMDBUfl*ERR17*fiMDNMfl;
Richards United Super, 308 NLRB 201 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMfl. Member Stephens
finds the circumstances in this case distinguishable from those in
Riesbeck, supra, in which he dissented from the Board’s finding of
a violation. Thus, here there is no evidence that either Respondent
maintained a nondiscriminatory policy or rule barring consumer boy-
cott activity from its property.
3 In the fourth paragraph of part III,B of his decision, the judge
opined that, under Lechmere, Inc. v. NLRB, 502 U.S. 527 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMfl, the
‘‘inaccessibility exception’’ permitting access to private property is
available only when nonemployee union representatives are attempt-
ing to communicate with employees, not with customers. We find
it unnecessary to affirm the judge’s view, because it represents dicta
not affecting the resolution of this disparate-treatment case, and be-
cause it addresses a question which the Board has specifically left
open. See Leslie Homes, 316 NLRB 123, 129 (fiMDBUfl*ERR17*fiMDNMfl1995)fiMDBUfl*ERR17*fiMDNMfl; Loehmann’s
Plaza, 316 NLRB 109, 112 fn. 9 (fiMDBUfl*ERR17*fiMDNMfl1995)fiMDBUfl*ERR17*fiMDNMfl. Member Truesdale dis-
agrees with the judge’s view, because he considers that the ‘‘inac-
cessibility exception’’ applies regardless of whether the audience is
employees or customers. See Members Browning and Truesdale’s
joint dissent in Loehmann’s Plaza, supra at 114, 120 fn. 24.
1 All dates are in 1994 unless otherwise indicated.
2 An order consolidating the cases issued on September 8.
Schear’s Food Center and United Food and Com-
mercial Workers International Union, Local
1099, AFL–CIO–CLC.
Forest Park, Inc., Lodar, Inc., Thomas J. Desantis,
William H. Heller, Berrimore Company, and
Hank Schneider, Partners, d/b/a Forest Park
Partners, Limited and United Food and Com-
mercial Workers International Union, Local
1099, AFL–CIO–CLC. Cases 9–CA–31626 and
9–CA–32030
August 9, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On December 8, 1994, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondents filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Schear’s Food Center and
Forest Park Partners, Limited, Dayton, Ohio, their offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
James E. Horner, Esq., for the General Counsel.
Robert M. Lamb, Esq., of Cincinnati, Ohio, for the Respond-
ents.
Peter Fox, Esq., of Cincinnati, Ohio, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This con-
solidated preceding was litigated before me at Dayton, Ohio,
on September 28, 1994,1 pursuant to charges and amended
charges filed by the United Food and Commercial Workers
International Union, Local 1099, AFL–CIO–CLC (fiMDBUfl*ERR17*fiMDNMfl
July 25, August 3, and August 29, in Case 9–CA–32030 and
on February 24 and March 24, in Case 9–CA–31626, and
complaints having issued in Case 9–CA–32030 on September
8 and in Case 9–CA–31626 on April 8,2 alleging Schear’s
Food Center (fiMDBUfl*ERR17*fiMDNMflCompany)fiMDBUfl*ERR17*fiMDN
Thomas J. Desantis, William H. Heller, Berrimore Company,
and Hank Schneider, Partners d/b/a Forest Park Partners,
Limited (fiMDBUfl*ERR17*fiMDNMflForest Park Partners)fiMDBUfl*ERR17*fi
National Labor Relations Act by: (fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*E
14, prohibiting representatives of the Union from engaging in
peaceful picketing and handbilling at the Company’s
Breitenstrater store in Dayton, Ohio; (fiMDBUfl*ERR17*fiMDNMfl2)fiMDBU
ruary 24 and July 20, prohibiting representatives of the
Union from engaging in peaceful picketing and handbilling
at the Company’s Forest Park store in Montgomery County,
Ohio; and (fiMDBUfl*ERR17*fiMDNMfl3)fiMDBUfl*ERR17*fiMDNMfl on or
pass complaint to issue against the Union’s director of orga-
nizing William N. Dudley (fiMDBUfl*ERR17*fiMDNMflUnion Director of
Dudley)fiMDBUfl*ERR17*fiMDNMfl in retaliation for engaging in peaceful pic
handbilling. The Company and Forest Park Partners deny
having violated the Act in any manner.
Timely briefs were filed by counsel for the General Coun-
sel, counsel for the Union, and counsel for the Company and
Forest Park Partners.
On the basis of the entire record, and my observation of
the demeanor of the seven witnesses who testified, I will, as
hereinafter more fully explained, conclude the Company and
Forest Park Partners violated the Act substantially as alleged
in the complaints.
FINDINGS OF FACT
I. JURISDICTION
At times material the Company has been a corporation en-
gaged in the retail sale of groceries and food products at its
stores in Dayton, Ohio, and vicinity, including its Forest Park
Shopping Center and Breitenstrater Shopping Center stores.
During the 12 months preceding issuance of the complaints
the Company in conducting its operations derived gross reve-
nues in excess of $500,000 and purchased and received at its
Dayton, Ohio, and vicinity facilities goods valued in excess
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Breitenstrater Store Manager Herbert Oney (fiMDBUfl*ERR17*fiMDNMflBreitenstrater Man-
ager Oney)fiMDBUfl*ERR17*fiMDNMfl testified the owners at that property allow the Company
‘‘some control’’ over the sidewalk and parking lot while Forest Park
Partners Facility Manager Gary Alexander (fiMDBUfl*ERR17*fiMDNMflFacility Manager Alex-
ander)fiMDBUfl*ERR17*fiMDNMfl testified the owners of that property left control of the side-
walks and parking areas ‘‘pretty much’’ up to its tenants.
4 The parties stipulated that the Breitenstrater Shopping Center is
owned by Trust for the Breitenstrater Family. Documents introduced
by the Company reflect Louise Kennett as Trustee of the
Breitenstrater Trust. I shall refer to the property owners as the
Breitenstrater Trust.
5 The policy reads in part as follow: ‘‘Any unauthorized solicita-
tion of our customers for any cause, product or purpose is prohib-
ited.’’
6 A c py of the literature obtained by Crider was received in evi-
dence. The literature reflects the group was Family Health Education
Serv ce of Columbus, Ohio, an ‘‘outreach’’ of the Seventh-Day Ad-
v ntist Churches of Ohio, Pennsylvania, Virginia, and West Virginia.
The literature warns of the dangers of drug addition.
7 The petition reads in part: ‘‘We the undersigned call on President
Clinton and Congress to dump the North American Free Trade
Agreement as negotiated by George Bush. Its wholly unacceptable
and unfair to workers in the United States.’’ The petition contains
what is purported to be the signatures and addresses of those signing
the petition.
8 Dudley corroborates Burgstaller’s testimony. A photograph of
Baumann and Vaughn at the store was received in evidence.
of $50,000 directly from points outside the State of Ohio.
The complaint alleges, the parties admit, the evidence estab-
lishes and I find the Company is an employer engaged in
commerce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMfl, (fiMDBUfl*ERR17*fiMDNMfl6)fiMD
of the Act.
At times material Forest Park Partners has been a limited
partnership engaged in the management and rental of a shop-
ping center in Dayton, Ohio, known as Forest Park Shopping
Center. During the 12 months preceding issuance of the com-
plaint, Forest Park Partners derived gross revenues in excess
of 1 million dollars, of which in excess of $25,000 was de-
rived from its tenant, the Company herein. The complaint al-
leges, the parties admit, the evidence establishes and I find
that Forest Park Partners is an employer engaged in com-
merce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMfl, (fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl
Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties admit, the evidence es-
tablishes and I find that the Union is a labor organization
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Company operates a number of supermarkets/food
stores in the greater Dayton, Ohio area. Only two stores are
involved in the instant case. The Company leases the two
food stores in question from the property owners and the
Company is allowed ‘‘some control’’ over the areas outside
the two stores including the sidewalks and parking lots.3
One of the two stores in question is located in the Forest
Park Shopping Center (fiMDBUfl*ERR17*fiMDNMflor Plaza)fiMDBUfl*ERR17*fiMDNMfl, a strip mall located at the
corner of Nottingham Road and North Main Street (fiMDBUfl*ERR17*fiMDNMflState
Route 48)fiMDBUfl*ERR17*fiMDNMfl in Montgomery County, Ohio, just outside the city
limits of Dayton, Ohio. I shall refer to this store location as
the Forest Park Store. The other store is located in the
Breitenstrater Shopping Center,4 a strip mall, located at the
corner of Willimgton Pike and Patterson Road, within the
city limits of Dayton, Ohio. I shall hereinafter refer to this
store as the Breitenstrater store.
The Company has a ‘‘solicitation policy’’5 outlined in its
employee handbook, however, the handbook is distributed
only to employees of the Company. Forest Park Store Man-
ager George James (fiMDBUfl*ERR17*fiMDNMflForest Park Store Manager James)fiMDBUfl*ERR17*fiMDNMfl testi-
fied there are signs on the doors to the Forest Park store that
read ‘‘no solicitation.’’
It is undisputed that none of the handbillers or picketers
were employees of the Company or Forest Park Partners. It
is likewise undisputed that the Union not only handbilled at
the locations in question, but also picketed and had direct
mailings to the public as well as radio and billboard adver-
tisements and held press conferences or provided press re-
leases to the public. I have focused on the handbillings as
a resolution on that activity fully addresses the allegations of
the complaints. It is also undisputed that no representatives
of the Union sought permission to picket or handbill at the
Company’s two locations involved herein.
Union Organizer Jeffery Crider (fiMDBUfl*ERR17*fiMDNMflUnion Organi
testified he went to the Forest Park Store in June 1993, and
observed a table set up just inside the store where a rep-
resentative from a community crusade against drugs was
handing out literature and requesting donations.6 Forest Park
Store Manager James testified no solicitations were author-
ized by the Company at his store during the previous year,
but acknowledged that over the past 2 years, Girl Scouts sold
cookies inside the store, the Jaycees conducted voter registra-
tion drives outside the store, and a coalition of churches, in-
cluding the Seventh-Day Adventist conducted campaigns
against drugs inside the store ‘‘usually monthly or every 2
months . . . on Friday, Saturday, and Sunday normally.’’
Union Organizer Crider testified he, Scott Adkins, and
Katrina Dreisback handbilled (fiMDBUfl*ERR17*fiMDNMflcollected signatures
tion)fiMDBUfl*ERR17*fiMDNMfl regarding the North American Free Trade
(fiMDBUfl*ERR17*fiMDNMflNAFTA)fiMDBUfl*ERR17*fiMDNMfl at the For
fied they handbilled at the front of the store for 2 to 3 hours
without any objection from store management.7
Forest Park Store Manger James testified he did not give
permission for, nor was he aware of anyone handbilling re-
garding NAFTA at his store in 1993.
Union Organizer Douglas Burgstal er (fiMDBUfl*ERR17*fiMDNMflUnion
Burgstaller)fiMDBUfl*ERR17*fiMDNMfl testified he first visited the Breitens
on February 7. Union Organizer Burgstaller testified he and
Union Director of Organizing William Dudley (fiMDBUfl*ERR17*fiMDNMfl
Organizing Dudley)fiMDBUfl*ERR17*fiMDNMfl photographed two individual
Baumann and Jennifer Vaughn—handing out voter registra-
tions forms in front of and to the side of the entrance to the
store.8 Baumann testified she and her friend Vaughn went to
the Breitenstrater store with Ohio voter registration forms on
February 7, and proceeded to the service desk to seek per-
mission to distribute the forms. Baumann stated no one was
at the service desk, but the cashier at the first register told
them it would not be a problem and that she would give
them permission to do so. Baumann testified they first set up
outside the entrance to the store, but the weather was cold
and one of the store baggers invited them inside. Baumann
263SCHEAR’S FOOD CENTER
9 Baumann had not previously met Oney but said she observed his
name and title on a tag he was wearing.
10 According to Dudley, Adkins is the son of one of their business
representatives who works for a company whose employees are rep-
resented by the Union herein.
11 Dudley said Bull worked for the property owners.
12 The summons reflects the complained-of action is a fourth-de-
gree misdemeanor.
said they setup at the inside front of the store ‘‘on one side
. . . so we weren’t blocking anyone.’’ Baumann stated that
Breitenstrater Store Manager Oney twice passed where they
were and even spoke to them.9 According to Baumann no
one objected to their being there.
Breitenstrater Store Manager Oney could not recall anyone
handing out voter registration forms at his store and he did
not recognize Baumann in the courtroom. Breitenstrater Store
Manager Oney testified corporate headquarters had approved
certain groups to solicit at the Breitenstrater store; namely,
Girl Scout cookie sales (fiMDBUfl*ERR17*fiMDNMflprobably February)fiMDBUfl*ERR17*fiMDNMfl and blood pres-
sure checks for senior citizens (fiMDBUfl*ERR17*fiMDNMflprobably February or March)fiMDBUfl*ERR17*fiMDNMfl.
Oney said schools and churches had been denied an oppor-
tunity to sell candy or conduct bake sales at his store.
Union Director of Organizing Dudley testified he visited
the Forest Park store on February 7, where he observed and
photographed two individuals ‘‘passing out voter registration
forms at the door of the store.’’ Dudley identified the two
individuals as Jeff Crider and Scott Adkins.10 Dudley testi-
fied Union Organizer Crider told him the store manager gave
them permission to handbill.
Union Director of Organizing Dudley testified that he
along with Union Organizer Burgstaller’s brother Phil,
Bonnie France (fiMDBUfl*ERR17*fiMDNMfla store clerk at an area Kroger store whose
employees are represented by the Union)fiMDBUfl*ERR17*fiMDNMfl, and Katrina
Dreisback (fiMDBUfl*ERR17*fiMDNMflan employee of Michner’s store whose employees
are represented by the Union)fiMDBUfl*ERR17*fiMDNMfl visited the Forest Park store
at around 10 a.m., February 14, where they handbilled and
picketed at the entrance to the store. The yellow colored
handbills they distributed reads as follows:
PLEASE DON’T SHOP
AT NON-UNION
SCHEAR’S FOOD
CENTER
The members of UFCW
Local 1099 ask for your
support in our
struggle to maintain good union jobs
in our community.
PLEASE
SHOP AT
UNION STORES
On the reverse side of the flyers are cost comparisons of 25
items between the Company’s Forest Park store and Kroger’s
Needmore Road, Dayton, Ohio store.
Director of Organizing Dudley testified that around 11
a.m., a Montgomery County Deputy Sheriff’s representative
came to the Forest Park store and he asked her if there was
a problem and she said there might be. According to Dudley,
the deputy sheriff spoke with someone inside the store and
when she came out he gave her one of his business cards
and told her if she needed him to call him. Dudley testified
he left for a while, but returned to the Forest Park store that
afternoon (fiMDBUfl*ERR17*fiMDNMflFebruary 14)fiMDBUfl*ERR17*fiMDNMfl. On this occasion he spoke with For-
est Park Store Manager James. James came to the outside en-
trance where the pickets were and told Dudley he wanted
them to leave the premises. Dudley told James the Company
had allowed other solicitation such as the Girl Scouts and he
‘‘felt we had a legal right to be there.’’ James again told
Dudley he wanted them to leave. Dudley gave his business
card to James and told him the pickets would conduct them-
selves in a professional manner, they would not block en-
trances, but they were going to continue their handbilling ac-
tivities.
Director of Organizing Dudley and other pickets returned
to the Forest Park Store the next day, February 15, and were
approached by Facility Manager Alexander. According to
Dudley, Alexander said he was the owner of the property
and wanted the pickets to leave. Dudley told Alexander he
thought they had a right to be there and would not leave.
The Union continued picketing 5 to 6 days per week, until
February 24.
Union Organizer Burgstaller testified that on February 24,
Director of Organizing Dudley was confronted at the Forest
Park store by Montgomery County Sheriff’s Department
Major Casey and at least two other representatives of the
Sheriff’s Department. Dudley testified, ‘‘Major Casey in-
formed us that if we didn’t leave the property, we would be
arrested for criminal trespassing.’’ Dudley told Casey he
thought they had a right to be there, but they didn’t want to
be arrested so they left the property.
Director of Organizing Dudley testified he, along with
Union Organizer Crider, Kroger Meat Cutter employee Her-
nandez and Kroger Clerk employee and union executive
board member Jones handbilled again at the Forest Park store
on July 20. On this occasion Dudley said they handbilled
with leaflets that asked consumers not to shop at the Com-
pany but added the leaflets did not contain price comparisons
between the Company and Krogers. After they started
handbilling, Major Casey and Sergeant Skidmore of the
Montgomery County Sheriff’s Department arrived at the
store. Major Casey informed Dudley he was on his way in-
side to see who had called the Sheriff’s Department. Accord-
ing to Dudley, Dale Bull was inside the store at the time.11
A few minutes later Major Casey came outside and asked
Dudley for his driver’s license. Within a few minutes a uni-
formed officer from the Sheriff’s Department arrived at and
entered the store. Shortly thereafter Major Casey, Sergeant
Skidmore, Forest Park Partners Representative Bull and the
uniformed Sheriff’s Department representative approached
the pickets at the store entrance. According to Dudley, Bull
said, ‘‘We want you to leave the property now. Go where
you belong.’’ Dudley told the group he thought they had a
right to be there and asked Bull who he was doing this for,
the property owners or the Company. Bull declined to an-
swer and again asked if Dudley and the pickets were going
to leave. Dudley said he was not. Bull then signed papers for
the law enforcement personnel. The authorities asked Dudley
to step over by a police cruiser where Dudley was charged
with criminal trespassing.12
Forest Park Store Manager James testified he asked the
pickets on February 14, to leave the premises, but said they
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Facility Manager Alexander testified the Forest Park Partners do
not allow solicitation on mall property except for hire such as a car-
nival paying a fee to operate in the parking lot. Alexander said he
even had an individual with a ‘‘Work for Food’’ sign removed from
the premises.
14 According to Alexander, Bull was fully authorized by the Forest
Park Partners to sign a complaint against trespassers.
15 Dudley’s photographs were received in evidence.
16 The handbills in question were similar to those distributed at the
Forest Park store which are described elsewhere in this decision.
Crider stated they did not seek permission from the Company to en-
gage in the handbilling.
17 Crider described the roped off area as being in the parking lot
with grocery carts turned upside down with yellow ‘‘Do Not Enter’’
caution tape strung through the carts outlining the area.
refused to do so. James said he telephoned the Sheriff’s De-
partment and Forest Park Partners Facility Manager Alexan-
der. James said Alexander established a ‘‘picketing island’’
using shopping carts and tape ‘‘just behind the for handi-
capped parking stalls’’ which is the parking area closest to
the store entrance. James said the pickets refused to move to
the ‘‘picketing island.’’ James testified the Sheriff’s Depart-
ment initially told him they could not do anything. James
said the picketing continued for 5 to 6 days per week there-
after. Facility Manager Alexander testified that on February
24, the Montgomery County Sheriff’s Department, at his re-
quest, ordered the pickets to leave from in front of the Forest
Park store and told them if they refused they would be ar-
rested.13 The pickets left.
Facility Manager Alexander testified he learned union
pickets had returned to the entrance at the Forest Park store
on July 20, when Forest Park Partners Representative Bull
telephoned him.14 In their conversation Bull told Alexander,
Forest Park Store Manager James wanted the pickets re-
moved. Accordingly Bull executed the necessary papers and
Union Director of Organizing Dudley was issued a criminal
trespass summons.
The Union recalled Dudly as a rebuttal witness and he tes-
tified that after the incident at the Forest Park store on Feb-
ruary 24, he observed Girl Scouts selling cookies (fiMDBUfl*ERR17*fiMDNMflperhaps in
March)fiMDBUfl*ERR17*fiMDNMfl inside the Forest Park store. Dudly photographed
their activities.15
Union Organizer Crider testified he, two union members,
and a union member’s wife handbilled at the entrance to the
Breitenstrater store starting at 10 a.m. on February 14.16
Crider said that after being there a short while an employee
told them the store manager wanted to speak with whomever
was in charge of the handbilling. Crider said he told the em-
ployee that if the manager wanted to speak with them he
knew where they were. Shortly thereafter a City of Dayton,
Ohio police officer arrived at the store. Thereafter a second
police officer (fiMDBUfl*ERR17*fiMDNMflSergeant Tenor)fiMDBUfl*ERR17*fiMDNMfl arrived and went inside the
store and spoke with Store Manager Oney. According to
Crider, Sergeant Tenor then came outside and told those
handbilling it was his job to ask them to leave. Crider told
Tenor they were not going to leave. Sergeant Tenor told
them store personnel were trying to make contact with the
property owners and added ‘‘If she comes out here and tells
you to leave, you will have to leave or you will be arrested.’’
According to Crider, around 4 p.m., Breitenstrater Manager
Oney and Breitenstrater Trustee Louise Kennett gave him a
letter. The letter reads as follows:
February 14, 1994
TO: UFCW, Local 1099 and Pickets:
Schear’s Metro Market and the property owners are
asking you to move to a designated picketing island lo-
cated in the parking lot.
We would appreciate your compliance and cooper-
ations.
SINCERELY,
/S/GENE A. BLAIR
GENE A. BLAIR
GENERAL MANAGER—293-6491
/S/ LOUISE E. KENNETT
CO TRUSTEE & OWNER OF
BREITENSTRATER SHOP CENTER
Crider testified he read the letter and Trustee Kennett
asked him to go to the roped off area to handbill.17 Crider
declined to do so. Breitenstrater Store Manger Oney and
Trustee Kennett went back inside the store, but shortly there-
after came outside again with Dayton City Police Sergeant
Tenor. Crider testified Breitenstrater Trustee Kennett ordered
him and the handbillers off the property. Crider stated that
based on what Sergeant Tenor had earlier told them (fiMDBUfl*ERR17*fiMD
property owner ordered them off and they did not leave they
would be arrested)fiMDBUfl*ERR17*fiMDNMfl they moved to the public sid
joining the Breitenstrater property. Crider said they have
picketed almost every day on the public sidewalks at the
edge of the Breitenstrater property since February 14.
Union Organizer Burgstaller testified he and Director of
Organizing Dudley went to the Breitenstrater store on Feb-
ruary 27 where they observed Girl Scouts inside the store
selling cookies. Burgstaller stated he and Dudley purchased
some Girl Scout cookies and photographed the activities.
Burgstaller testified there was a poster advertising the event
which read: ‘‘Everyone’s Favorite! Girl Scout Cookies.’’
Breitenstrater Store Manager Oney said he first learned on
February 14, about pickets at his store when a Dayton, Ohio
city policeman (fiMDBUfl*ERR17*fiMDNMflwhom he had not called to the
him. Oney stated the policeman asked him if there was a
problem. He said he told the policeman not at that time.
Oney asked the policeman what he needed to do and the po-
liceman told him he needed a written statement from the
landlord or the Company authorizing the removal of the
pickets if that was what he wanted. Oney directed an associ-
ate to ask Union Organizer Crider to come into the store.
Oney stated that after Crider refused he ‘‘went out and asked
[Crider] would he please go away from my entrance’’ and
added, ‘‘I told him I would make a designated area for him,
and I was in the process of doing so.’’ Oney testified about
the picketing island he established, ‘‘We took four grocery
carts and turned them upside down and took yellow caution
tape and round around it.’’ According to Oney, Crider and
the others would not move to the designated picketing island.
Breitenstrater Store Manager Oney testified he then contacted
Breitenstrater Trustee Kennett and she came to the property
and gave Crider a letter asking him to move to the area des-
ignated for picketing. When Crider refused Kennett asked
what she should do and Oney told her it was her call. The
police asked Kennett what she wanted and she told the police
she wanted the pickets ‘‘off the property totally.’’
265SCHEAR’S FOOD CENTER
18 I credit Burgstaller, Dudley, and Baumann’s testimony as out-
lined above even though Breitenstrater store manager Oney could
not recall anyone handing out voter registrations forms at his store,
nor did he recognize Baumann in the courtroom. I note Burgstaller
and Dudley photographed Baumann’s and Vaughn’s activities on the
day in question.
19 Oney did state the Company had refused to allow schools and
churches to sell candy or conduct bake sales at the Breitenstrater
store.
As alluded to elsewhere, Breitenstrater Store Manager
Oney testified the Company has a policy on solicitation but
authorized some soliciting. Oney testified that for examples
the Breitenstrater store allowed a blood pressure check for
senior citizens in either February or March, ‘‘shortly after’’
the Girl Scouts conducted a cookie sale at the store. Oney
denied seeing or knowing of any voter registration forms
being distributed at the Breitenstrater store.
B. Analysis and Conclusions
A brief sketch of the parties positions is helpful at this
point.
The Government and Union contend that while an em-
ployer may limit nonemployee union organizers from picket-
ing or distributing union literature on private property it may
not treat activities by union personnel in a disparate manner;
that is, if an employer permits picketing or distribution of lit-
erature by other nonunion charitable and/or commercial ac-
tivities it may not selectively preclude pickets from distribut-
ing literature on behalf of a union—which is what they con-
tend happened herein.
The Company and Forest Park Partners contend the activi-
ties of the Union at the two stores was nothing more than
an aggressive campaign by the Union to destroy its business
and divert its customers to its competitors. The Company and
Forest Park Partners note the Union does not represent any
of their employees and was not attempting to organize their
employees nor was it attempting to be recognized as their
employees bargaining representative. The Company contends
the Union’s campaign was solely directed at consumers to in-
jure its business. The Company and Forest Park Partners fur-
ther contend that as part of its campaign the Union’s organiz-
ers trespassed on the private property of the Company’s land-
lords and that such activity is not protected by the Act. The
Company and Forest Park Partners assert they did not unlaw-
fully discriminate when they defended their property (fiMDBUfl*ERR17*fiMDNMfland/or
property rights)fiMDBUfl*ERR17*fiMDNMfl against criminal trespass. The Company and
Forest Park Partners further contend that to allow the Union
access to its private property to injure the Company’s busi-
ness would be a taking of property in violation of the 5th
Amendment to the Constitution.
Section 7 of the Act guarantees ‘‘Employees shall have the
right to self-organization, to form, join, or assist labor orga-
nizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection’’ and makes it an unfair labor practice for
an employer to ‘‘interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7.’’ Sec-
tion 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMfl. The Supreme
502 U.S. 527 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMfl, held that as a rule an employer cannot
be compelled to allow distribution of union literature by non-
employee organizers on its property. The Court, however,
went on to note that like many rules there are exceptions.
The Court excepted the situation where, for example, the lo-
cation of a plant and the living quarters of the employees
placed the employees beyond the reach of reasonable union
efforts to communicate with them. In such circumstances the
employer’s property rights may be required to yield to the
extent needed to permit communication of information on the
right to organize. The Court admonished that even in such
circumstances accommodation between employees’ Section 7
rights and employer’s property rights must be attained with
as little destruction of the one as is consistent with the main-
tenance of the other. This inaccessibility exception only ap-
plies when the employee pickets or handbillers are trying to
reach employees not customers. It is clear that the above de-
scribed Lechmere exception does not apply in the instant
case inasmuch as the nonemployee pickets and handbillers
were trying to reach customers not employees.
The Court in Lechmere, quoting from Sears, Roebuck &
Co. v. Carpenters, 436 U.S. 180, 205 (fiMDBUfl*ERR17*fiMDNMfl1978)fiMD
that situation in which ‘‘the employer’s access rules discrimi-
nate against union solicitation.’’ See NLRB v. Babcock &
Wilcox, 351 U.S. 105, 112 (fiMDBUfl*ERR17*fiMDNMfl1956)fiMDBUfl*ER
markets, 306 NLRB 426 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17
NLRB 201 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMfl; a
It is on this exception that the Government’s case herein will
rise or fall.
Turning to the Breitenstrater store first, Union Organizer
Burgstaller and Director of Organizing Dudley visited that
store on February 7, where they observed two individuals—
Tammy Baumann and Jennifer Vaughn—distributing voter
registrar forms. Baumann credibly testified they distributed
the forms in front of and inside the store. Baumann said she
even spoke twice to Breitenstrater Store Manager Oney.18
Breitenstrater Store Manager Oney acknowledged that Com-
pany Headquarters authorized certain solicitation activities at
the Breitenstrater Store. Oney acknowledged Girl Scouts
were allowed to conduct cookie sales inside the store, prob-
ably in February, and the Company allowed blood pressure
checks to be conducted inside the store for senior citizens in
February or March.19 Union Organizer Burgstaller and Union
Director of Organizing Dudley even photographed Girl
Scouts selling cookies inside the Breitenstrater store on Feb-
ruary 27.
When on February 14, Breitenstrater Store Manager Oney
and Breitenstrater Trustee Kennett ordered Union Organizer
Crider and the other pickets to stop peacefully picketing-
handbilling and leave the property or be arrested, while per-
mitting others before and after this incident to solicit, the
Company violated the Act as alleged in the complaint and
I so find.
The evidence establishes that the Seventh-Day Adventist
Church distributed literature and solicited donations for a
community crusade against drugs inside the Forest Park store
in June 1993. Forest Park Store Manager James, although
disputing any activity in 1994, acknowledged that the Sev-
enth-Day Adventist Church conducted antidrug crusades in-
side the Forest Park store in 1993, ‘‘usually monthly or
every 2 months . . . on Friday, Saturday, and Sunday nor-
mally.’’ James also acknowledged that during that same time
Girl Scouts sold cookies inside the store and the Jaycees con-
ducted voter registration drives outside the store. I credit
Union Organizer Crider’s testimony that he, Scott Adkins,
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 In crediting Crider I am not unmindful that Forest Park Store
Manager James testified he did not give permission for nor was he
personnally aware of any activities by anyone regarding NAFTA at
the Forest Park store in 1993. The activities related to NAFTA were
photographed by the Union.
21 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.
and Katrina Dreisback collected signatures on a petition re-
garding NAFTA at the Forest Park store in July 1993.20 Not-
withstanding Forest Park Manager James testimony that no
soliciting activities took place at his store in 1994, I credit
Union Director of Organizing Dudley’s testimony that he
visited the Forest Park store on February 7 and observed, as
well as photographed, two individuals ‘‘passing out voter
registration forms at the door of the store.’’ I also credit
Dudley’s testimony that he observed and photograph Girl
Scouts selling cookies inside the Forest Park store, perhaps
in March, and definitely after February 24.
It is clear the Company allowed others to solicit at its For-
est Park store before and after February 24, when at Facility
Manager Alexander’s request, Montgomery County Sheriff’s
Department personnel ordered Union Director of Organizing
Dudley and the other pickets off the Forest Park property or
be subject to arrest for criminal trespassing. Such action by
the Company and Forest Park Partners violated Section
8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMfl of the Act and I so
Likewise when on July 20, Forest Park Store Manager
James notified Forest Park Partners that the Union pickets
had returned to his store and Forest Park Partners Represent-
ative Bull signed the necessary papers bringing about the ar-
rest of Union Director of Organizing Dudley for criminal
trespass and causing the other union pickets to leave their
peaceful handbilling activities or be arrested the Company
and Forest Park Partners violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDB
and I so find.
I reject the Company’s contention the price comparisons
handbills were an effort by the Union to destroy the Com-
pany such that the activity lost its protection under the Act.
I find in agreement with the Union the inclusion of the price
comparisons did not change the nature of the Union’s mes-
sage—which was a request not to patronize the Company for
the reasons reflected on the handbills and picket signs. Thus,
the activity did not lose its protection under the Act. The
price comparisons were nothing more than attempts by the
Union to persuade the target of its activity—customers—that
exercising the choice not to patronize the Company would
not cost the customers money. I also reject the Company’s
constitutional (fiMDBUfl*ERR17*fiMDNMflFifth Amendment)fiMDBUfl*ERR17*fiMDNMfl argument.
CONCLUSIONS OF LAW
1. Shear’s Food Center is an employer engaged in com-
merce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMfl, (fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl
Act.
2. Forest Park, Inc., Lodar, Inc., Thomas J. Desantis, Wil-
liam H. Heller, Berrimore Company, and Hank Schneider,
Partners d/b/a Forest Park Partners, Limited is an employer
engaged in commerce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMfl,
(fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR17*fiMDNMfl, and (fiMDBUfl*ERR17*fiMDNMfl7)fiMDBUfl*ERR17*fiMDNMfl of the Act.
3. United Food and Commercial Workers International
Union, Local 1099, AFL–CIO–CLC is a labor organization
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl of the Act.
4. In Case 9–CA–31626 Schear’s Food Center violated
Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMfl of the Ac
discriminatorily prohibited representatives of United Food
and Commercial Workers International Union, Local 1099,
AFL–CIO–CLC from peacefully picketing and distributing
handbills in front of its Breitenstrater store.
5. In Case 9–CA–32030, Schear’s Food Center violated
Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDB
discriminatorily prohibited representatives of United Food
and Commercial Workers International Union, Local 1099,
AFL–CIO–CLC from peacefully picketing and distributing
handbills in front of its Forest Park store.
6. In Case 9–CA–32030 Schear’s Food Center and Forest
Park, Inc., Lodar, Inc., Thomas J. Desantis, William H. Hell-
er, Berrimore Company, and Hank Schneider, Partners d/b/a
Forest Park Partners, Limited jointly violated Section 8(fiMDBUfl*ERR17*fiMD
of the Act on July 20, 1994, when it discriminatorily prohib-
ited representatives of United Food and Commercial Workers
International Union, Local 1099, AFL–CIO–CLC from
peacefully picketing and distributing handbills in front of the
Forest Park store and causing a criminal trespass complaint
to issue against Union Director of Organizing William Dud-
ley in retaliation for engaging in peaceful picketing and
handbilling.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR
REMEDY
Having found the Company and Forest Park Partners have
committed violations of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*E
recommend they be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies
of the Act.
The affirmative action that I shall recommend will include
that Schear’s Food Center and Forest Park, Inc., Lodar, Inc.,
Thomas J. Desantis, William H. Heller, Berrimore Company,
and Hank Schneider, Partners d/b/a Forest Park Partners,
Limited jointly notify the Montgomery County, Ohio Sher-
iff’s Department and appropriate court authorities in writing
with a copy to Union Director of Organizing William Dudley
that the National Labor Relations Board has determined that
Dudley’s arrest on July 20, 1994, violated the National Labor
Relations Act, that it request in writing, with a copy to Dud-
ley, that the department and the court expunge any and all
records of that unlawful arrest and that it make Dudley, the
United Food and Commercial Workers International Union,
Local 1099, AFL–CIO–CLC, whole with interest for all rea-
sonable legal fees and expenses incurred as a result of the
arrest. Interest shall be figured in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (fiMDBUfl*ERR17*fiMDNMfl1987)fiM
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
A. The Respondent, Schear’s Food Center, Dayton, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
267SCHEAR’S FOOD CENTER
22 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.’’
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Discriminatorily prohibiting representatives of the
United Food and Commercial Workers International Union,
Local 1099, AFL–CIO–CLC from peacefully picketing
and/or distributing handbills in front of its Forest Park and
Breitenstrater stores by demanding that they leave, by calling
the police or sheriff’s department personnel to remove them,
by having them placed under arrest or in any other way
interfering with them.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl In any like or related matter 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.
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Notify the Montgomery County, Ohio Sheriff’s Depart-
ment and appropriate court authorities in writing with a copy
to Union Director of Organizing William Dudley that the Na-
tional Labor Relations Board has determined that Dudley’s
arrest on July 20, 1994, violated the National Labor Rela-
tions Act; in writing, with a copy to Dudley, request that the
department and the court remove any and all records of that
unlawful arrest and make Dudley, the United Food and Com-
mercial Workers International Union, Local 1099, AFL–
CIO–CLC whole with interest for all reasonable legal fees
and expenses incurred as a result of the arrest.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Post at its Corporate Headquarters, Forest Park store,
and Breitenstrater store copies of the attached notice marked
‘‘Appendix.’’22 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by
Schear’s Food Center’s authorized representative, shall be
posted by it immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees customarily are posted. Reason-
able steps shall be taken by Schear’s Food Center to ensure
that the notices are not altered, defaced, or covered by any
other material.
(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl Notify the Regional Director in writing within 20 days
from the date of this Order what steps Schear’s Food Center
has taken to comply.
B. The Respondent, Forest Park Inc., Lodar Inc., Thomas
J. Desantis, William H. Heller, Berrimore Company, and
Hank Schneider, Partners d/b/a Forest Park Partners, Limited,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Discriminatorily prohibiting representatives of United
Food and Commercial Workers International Union, Local
1099, AFL–CIO–CLC from peacefully picketing and/or dis-
tributing handbills in front of Schear’s Food Center at the
Forest Park Shopping Center by demanding they leave and/or
by placing them under arrest for criminal trespassing.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl 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.
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Notify the Montgomery County Sheriff’s Department
and appropriate court authority, in writing, with a copy to
Union Director of Organizing William Dudley that the Na-
tional Labor Relations Board has determ n d that Dudley’s
arrest on July 20, 1994, violated the National Labor Rela-
tions Act; in writing, with a copy to Dudley, request that the
department and the court remove any and all records of that
unlawful arrest and make Dudley, United Food and Commer-
cial Workers International Union, Local 1099, AFL–CIO–
CLC whole with interest for all reasonable legal fees and ex-
penses incurred as a result of the arrest.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Notify the Re
from the date of this Order what steps Forest Park, Inc.,
Lodar, Inc., Thomas J. Desantis, William H. Heller, Berri-
more Company, and Hank Schneider, Partners d/b/a Forest
Park Partners, Limited 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discriminatorily prohibit representatives of
United Food and Commercial Workers International Union,
Local 1099, AFL–CIO-CLC from peacefully picketing and/or
from distributing handbills in front of our Forest Park store
and our Breitenstrater store by demanding that they leave, by
calling the police (fiMDBUfl*ERR17*fiMDNMflor Montgomery County, Ohi
Department)fiMDBUfl*ERR17*fiMDNMfl to remove them, by having them a
criminal trespass, or in any other way interfering with them.
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.
WE WILL notify the Montgomery County, Ohio Sheriff’s
Department and the appropriate court authorities in writing
with a copy to Union Director of Organizing William Dudley
that the National Labor Relations Board has determined that
Dudley’s arrest on July 20, 1994, violated the National Labor
Relations Act.
WE WILL in writing with a copy to Dudley request that the
department and the court remove any and all records of that
unlawful arrest and WE WILL make Dudley and United Food
and Commercial Workers International Union, Local 1099,
AFL–CIO–CLC whole, with interest, for all reasonable legal
fees and expenses incurred as a result of the arrest.
SCHEAR’S FOOD CENTER