Sears, Roebuck & Co.

National Labor Relations Board - Board Decisions

Aug 14, 1991

304 N.L.R.B. 58 (N.L.R.B. 1991)

58
304 NLRB No. 2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge in his factual recitation rejected the Union’s argument that the
presence of snow made picketing on the sidewalks around the East Northport
shopping center dangerous, observing that ‘‘a few shovels and a little muscle’’
could have resolved this ‘‘dilemma.’’ We observe that this statement plays no
role in the judge’s analysis. Absent exceptions, we pro forma adopt the judge’s
finding.
In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) by
prohibiting picketing at the East Northport store, we find that the Union did
not have a reasonable alternative means of communication and we do not rely
on the judge’s characterization that alternative means were ‘‘relatively inad-
equate.’’
2 All subsequent dates are in 1988 unless otherwise indicated.
3 351 U.S. 105, 112 (1956).
4 291 NLRB 11 (1988).
5 Id. See also Best Co., 293 NLRB 845 (1989).
Sears, Roebuck and Company and Local 282, Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO. Cases 29–CA–13363 and 29–CA–
13716
August 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 13, 1989, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs, and the Respondent filed a brief in
answer to the General Counsel’s exceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified, and to adopt his recommended
Order as modified.
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) of the Act by prohibiting the
Union from picketing in front of its auto centers lo-
cated in the East Northport1 and Smithtown, New
York shopping centers. We find merit in the General
Counsel’s exceptions to the judge’s failure to find that
the Respondent similarly violated the Act when it pro-
hibited picketing in front of its auto center in Hicks-
ville, New York.
On September 30, 1987, the Union was certified as
the representative of auto center employees employed
by the Respondent at its East Northport, New York fa-
cility. Negotiations began in October and the Respond-
ent presented a final contract offer in December. The
employees rejected this offer on January 15, 1988,2
and commenced a strike at the East Northport facility
on January 21. The Union in furtherance of its eco-
nomic strike at East Northport engaged in picketing on
the same day at the Respondent’s Smithhaven Mall
and Hicksville auto center stores. At all three locations,
the Union initially stationed its pickets directly in front
of each auto center. At all three locations, the local po-
lice, at the Respondent’s request, asked the Union to
move the pickets away from each auto center to the
public area around the perimeter of the shopping cen-
ters in which each auto center was located.
The Respondent’s facilities at Hicksville consist of
a retail store and a separate auto center situated on a
parcel of land entirely owned by the Respondent which
also includes a large parking area. There are no other
businesses located on this property. To the west of the
property is Broadway, a six-lane public road with five
entrances into the lot. To the east is Bay Avenue,
which has one entrance into the lot. There are side-
walks separating the parking lot from both Bay Ave-
nue and Broadway. On January 21, the Union sta-
tioned union members who were not Sears’ employees
directly in front of the auto center. The police, at the
Respondent’s request, asked the pickets to move off
the Respondent’s property to the various vehicular en-
trances to the parking lot.
The judge found that the relocated picketing was
only a few yards from where the pickets originally
were located, that the move did not make any signifi-
cant difference in the public’s or truckdrivers’ ability
to see the Union’s picket signs, and that many truck-
drivers who were asked to honor the picket line did so.
The judge also found the General Counsel had not
proven that picketing on the public sidewalks adjacent
to the parking lot was dangerous because of vehicular
traffic. The judge concluded that the Respondent’s pri-
vate property interest at this location outweighed the
Union’s right to gain access to the property. The judge,
noting that there was at this location no danger of en-
meshing neutral parties in the Union’s dispute with the
Respondent, concluded that the Union’s picketing ‘‘on
the public sidewalks immediately outside the employ-
er’s premises provided a reasonably effective and undi-
luted alternative means of communicating with the
Union’s intended audience.’’
We do not agree with the judge’s findings. In NLRB
v. Babcock & Wilcox Co.,3 the Court declared that in
cases in which the exercise of Section 7 rights comes
into conflict with property rights, the Board must seek
to accommodate the two. In determining whether the
Union should be permitted to picket on the Respond-
ent’s property, we apply the principles of Jean Coun-
try,4 which, following Babcock & Wilcox, held that al-
ternative means of communication is a factor that must
be considered in every access case in which a legiti-
mate property interest and a Section 7 right must be
accommodated.5 ‘‘[O]ur essential concern will be the
degree of impairment of the Section 7 right if access
should be denied, as it balances against the degree of
59SEARS, ROEBUCK & CO.
6 Jean Country, supra at 14.
7 See Best Co., supra.
8 That Sec. 7 activity undertaken in furtherance of an economic strike oc-
curred at a separate Sears location with pickets who were not employed by
the Respondent, although a factor to be considered, does not significantly di-
minish the strength of the Sec. 7 right being asserted by the Union since the
primary employer, Sears, was on the Hicksville site. Mooresville IGA
Foodliner, 284 NLRB 1055, 1058 (1987), enfd. 858 F.2d 1285 (7th Cir. 1988),
and W. S. Butterfield Theaters, 292 NLRB 30 (1988).
9 The judge determined that the testimony regarding accidents which almost
happened was ‘‘vague ‘‘ and noted that ‘‘if the streets were so dangerous,’’
the parties ‘‘could have obtained public records or other information from the
appropriate governmental agencies showing to what extent, if any, accidents
have occurred in the past.’’ We disavow any suggestion that the parties are
required to prove accidents occurred to establish evidence of dangerous condi-
tions.
10 Target Stores, 292 NLRB 933, 935 (1989).
11 It is unclear whether the Respondent has rules that would prevent auto
center employees from soliciting retail store employees during mealtimes or
overlapping breaktimes, if any. Compare Sahara Tahoe Hotel, 292 NLRB 812
(1989) (finding handbilling by off-duty employees not a reasonable means of
communication because the employer had disrupted such handbilling when it
occurred).
impairment of the private property right if access
should be granted.’’6
The auto center at Hicksville is a freestanding facil-
ity surrounded by a parking lot located on on a parcel
of land owned by the Respondent. The only other busi-
ness establishment at this location is a retail store oper-
ated by the Respondent. The property is, of course,
held open to the general public. The Respondent main-
tains a posted no-solicitation, no-distribution rule
which it has consistently and uniformly enforced with
regard to civic and charitable causes. On these facts,
we find that the Respondent has a legitimate and rel-
atively substantial property interest.7
Nevertheless, we find that the Respondent’s property
claim at Hicksville is not stronger than the significant
Section 7 right exercised by the Union at Hicksville.
The Union was engaged in a primary economic strike
at the East Northport location. The Union at Hicksville
sought to inform store customers and suppliers about
the economic strike at East Northport and was thus en-
gaged in conduct in support of the employees engaged
in primary economic activity. Accordingly, the Hicks-
ville picketing by the Union—the bargaining agent of
the East Northport employees—was activity that is
closely related to primary economic activity, which is
a core Section 7 right.8
With regard to the availability to the Union of alter-
native means of communicating its message, we agree
with the General Counsel that picketing at the perim-
eter entrances to the shopping center was dangerous.
The evidence shows that the pickets at this location en-
countered the same problems as did the pickets at East
Northport and Smithhaven Mall. The speed limit on
the public roads surrounding the shopping center is 35
miles per hour. When drivers slowed down to read the
picket signs, there were a number of near collisions.9
Attempts to distribute handbills to passengers while
running alongside moving vehicles subjected both
pickets and drivers to risk. We conclude that the
record supports a finding that requiring the picketing
to be carried on at the perimeter of the parking area
subjected persons and vehicles to unreasonable risk.
We also agree with the General Counsel that picket-
ing at the perimeter entrances to the shopping center
was ineffective. The record shows that when drivers
stopped their cars on the Respondent’s property to
speak to pickets, the Respondent’s security guards
threathened to remove the pickets.
We conclude that the picketing at the vehicular en-
trances to the parking lot ‘‘was generally ineffective
and dangererous owing to the difficulty of reading the
picket signs under existing traffic speed and safety
conditions.’’10 Under these circumstances, the General
Counsel has shown that there were no reasonable alter-
native means available to the Union to communicate
its message . To permit the Union access to the Re-
spondent’s property to communicate its message effec-
tively to its intended audience would mean only a
modest impairment of the Respondent’s property
rights. Accordingly, we find that the Respondent’s re-
fusal to permit the Union to picket in front of its auto
center at Hicksville violated Section 8(a)(1) of the Act.
2. The judge found that the Respondent did not vio-
late the Act when it prohibited the Union from distrib-
uting organizational literature at its East Northport re-
tail store because there was a reasonable alternative
available to the Union to communicate with the retail
store employees, namely, the auto center employees al-
ready represented by the Union. We find it unneces-
sary to rely on the judge’s reasoning that the already
represented auto center employees, without more, fur-
nished a reasonable alternative means of communica-
tion.11 Under the applicable test, the burden is on the
General Counsel to show that the Union lacked such
a means of communication; and for the reasons set
forth below, we agree that the General Counsel failed
to carry that burden.
The Union represented the auto center employees at
the East Northport facility. On September 19, a union
organizer and union members who were not Sears’ em-
ployees attempted to organize the retail store employ-
ees at the same location. The union agents stationed
themselves in front of the employee entrance to the re-
tail store and handed out organizational literature to
persons identified as the Respondent’s retail store em-
ployees. When the police informed the union agents
that they could not remain on the Respondent’s prop-
erty, they moved to the vehicular entrances of the
shopping center. Finding this attempt at distribution of
its literature to be ineffective, the Union abandoned its
efforts.
We agree with the judge that the Respondent has a
legitimate property interest at the East Northport loca-
tion. In contrast, the Union, through its organizational
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Emery Realty, 286 NLRB 372, 373 (1987), enfd. 863 F.2d 1259 (6th Cir.
1988).
13 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
solicitations, was asserting the Section 7 right of em-
ployees to organize, a right ‘‘at the ‘very core’ of the
interests the National Labor Relations Act seeks to
protect.’’12
The Supreme Court’s seminal decision in Babcock
& Wilcox, supra, concerned organizational activity. In
that case, the Court not only formulated the balancing
test between property rights and the employees’ statu-
tory rights that, as the Board in Jean Country acknowl-
edged, still must inform every decision concerning the
access of nonemployees to private property in the in-
terest of exercising Section 7 rights. It also determined
that, in the circumstances there, the General Counsel
had failed to carry his burden of showing that the
union lacked a reasonable alternative means of com-
munication with employees of the plant it sought to or-
ganize, where a ‘‘large percentage’’ of employees
lived in ‘‘small, well-settled communities’’ near the
plant, and the union could communicate with them
through ‘‘the usual methods of imparting informa-
tion,’’ i.e. , mailings, telephone calls, home visits, and
chance meetings on a town street. Babcock & Wilcox,
351 U.S. at 113. See also 351 U.S. at 107 fn. 1. The
Court noted that the union had, in fact, contacted more
than 100 out of the 500 employees in this manner.
The circumstances in Babcock & Wilcox—employ-
ees in close-knit communities living near a manufac-
turing plant with an exterior entrance that permitted
observers to identify those who entered there as plant
employees—are not, however, necessarily identical to
the circumstances of an organizational campaign di-
rected at an employer located in a shopping mall in a
modern suburban area. Lechmere, Inc. v. NLRB, 914
F.2d 313 (1st Cir. 1990), enfg. 295 NLRB 92 (1989).
Thus, in Lechmere, supra, where the union was at-
tempting to organize employees of a retail appliance
store located in a suburban mall with 13 other estab-
lishments, the Board found that the General Counsel
carried the burden of showing that the union had no
reasonable means of communication with the employ-
ees other than access to the property. Specifically, the
General Counsel has shown that the union—after exer-
cising due diligence (trying to pick employees’ cars
out of the cars on the mall parking lot, taking down
the license numbers, and obtaining names and address-
es through the state motor vehichle registry)—was able
to identify only a small portion of the store’s employ-
ees. Id. 295 NLRB 92 at 93. See also Emery Realty,
supra at 374 (union organizer made numerous fruitless
efforts to identify work force of hotel located in large
multistory office complex).
In the present case, by contrast, the record fails to
show that reasonable alternative means were not avail-
able. In fact, the Union conducted two meetings with
retail store employees off the East Northport premises,
which indicates that the Union had access to some of
the targeted employees. In the absence of any indica-
tion that this access was somewhat limited, the General
Counsel has failed to show a lack of alternative means.
The General Counsel has therefore not presented evi-
dence that would sufficiently distinguish this case from
Babcock & Wilcox. Accordingly, we shall dismiss this
allegation of the complaint for failure of proof on the
part of the General Counsel.
AMENDED CONCLUSION OF LAW
The Respondent violated Section 8(a)(1) of the Act
by prohibiting representatives of the Union from en-
gaging in peaceful picketing and handbilling in front
of the auto centers at East Northport, Smithtown, and
Hicksville, New York, and causing the police to assist
in the removal of such representatives from the Re-
spondent’s property.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sears,
Roebuck and Company, East Northport, Smithtown,
and Hicksville, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Prohibiting representatives of Local 282, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO from en-
gaging in peaceful picketing and handbilling in front
of the auto centers at East Northport, Smithtown, and
Hicksville, New York, and causing the police to assist
in the removal of such representatives from the Re-
spondent’s property, as long as that activity is con-
ducted by a reasonable number of persons and not un-
duly interfere with the normal use of facilities or oper-
ations of businesses not associated with the Respond-
ent.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Post at its facilities at East Northport,
Smithtown, and Hicksville, New York, copies of the
attached notice marked ‘‘Appendix.’’13 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
61SEARS, ROEBUCK & CO.
1 All dates are 1988 unless otherwise indicated.
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT prohibit representatives of Local 282,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO
from engaging in peaceful picketing and handbilling in
front of the auto centers at East Northport, Smithtown,
and Hicksville, New York, and WE WILL NOT cause the
police to assist in the removal of such representatives
from our property, as long as the Union’s activity is
conducted by a reasonable number of persons and does
not unduly interfere with the normal use of facilities
or operations of businesses not associated with us.
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.
SEARS, ROEBUCK & CO.
April M. Wexler, for the General Counsel.
Thomas P. Schnitzler (Jackson, Lewis, Schnitzler &
Krupman), of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Brooklyn, New York, on March 6 and 7, 1989.
The charge in Case 29–CA–13363 was filed on January 21,
1988, and the charge in Case 29–CA–13716 was filed on
September 30, 1988.1 The complaint was issued on Novem-
ber 30, 1988.
In essence, the complaint alleged as follows:
1. That the Union, which had been certified by the Board
on September 30, 1987, and after bargaining with the Em-
ployer, commenced an economic strike and picketing at the
stores and auto center facilities of the Respondent at loca-
tions in East Northport, Hicksville, and Smithhaven Mall, all
in New York. Such picketing was commenced in the parking
lot areas owned by the Respondent.
2. That on January 21, the Respondent, with the assistance
of the police, ordered and caused the Union to remove its
pickets to the public streets surrounding the parking lot
and/or mall areas where the Respondent’s stores were lo-
cated.
3. That on September 19, the Union commenced organiz-
ing activities by handing out literature near the main entrance
of the Respondent’s store located at the East Northport Mall.
4. That on September 19, the Respondent prevented and
prohibited the Union from engaging in the activity described
in paragraph 3 and forced its agents to engage in such activ-
ity on the public streets outside the mall’s parking lot.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed , I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
The Union, on September 30, 1987, was certified by the
Board as the exclusive collective-bargaining representative of
the auto center employees of Sears located at East Northport.
In October 1987, negotiations commenced between the par-
ties and on December 30, 1987, the Respondent made a
‘‘final offer’’ to the Union. This offer was rejected by the
employees on January 15, 1988, and on January 21, the
Union commenced a strike against the Employer.
In connection with the strike, the Union engaged in picket-
ing at the auto center in East Northport where the bargaining
unit employees worked. Additionally, the Union commenced
picketing the Respondent at two other locations, one being
at a store located in Hicksville, New York, and the other at
a Sears auto center located in the middle of a large shopping
mall in Smithhaven, New York. In all these instances, the
picketing was directed essentially at Sears’ customers and at
drivers making deliveries to the Sears stores. Basically, the
picket signs used were addressed to the public and notified
whoever chose to read them that the Union was engaged in
a strike for wages, job security, and fringe benefits.
At East Northport, the Respondent has a two-story retail
store and an attached auto center which is located to the
south of the main store. Both facilities (which are attached),
are part of a relatively small suburban mall with a larger area
set aside for parking. In addition to the Respondent’s facili-
ties, there also are located in the mall a CVS drug store, a
jewelry store, a shoe store, two fast food restaurants, an in-
surance agency, and a savings bank. The entire mall area, in-
cluding the parking lot is owned by the Respondent. To the
north of the parking area is Jericho Turnpike where there are
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two entrances to the mall’s parking lot. To the east is
Larkfield Road which has one entrance to the lot. On the
south border there is land owned by someone else and there
is a fence but no street which divides the properties. To the
west there is a lumberyard owned by another establishment.
Jericho Turnpike is a four-lane road, from which there are
two vehicular entrances to the mall’s parking lot on the north
side of the Sears facility. Between the parking lot and Jeri-
cho Turnpike there is a sidewalk and a grassy area or berm.
There are no traffic lights at these entrances and at one en-
trance there is a stop sign but only for outgoing traffic. The
other entrance to the mall’s parking lot is located on
Larkfield Road. Unlike the entrances on Jericho Turnpike,
there is a four-way traffic light at the Larkfield Road en-
trance. On the road leading from Larkfield Road to the mall
is an island which extends down towards the main entrance
of the Sears store. Adjacent to Larkfield Road, running
alongside the parking lot, is a grassy berm and a 4-foot-wide
sidewalk. It appears that the distance from the Larkfield
Road entrance to Sears’ main entrance is about 500 to 600
feet. In order to approach the entrance to the auto center
from Larkfield Road by vehicle, requires traveling about an-
other 200 feet around to the southern end of the Sears build-
ing.
On the first day of the strike, January 21, the Union, at
the East Northport mall, placed its pickets in front of the
auto center where they could easily communicate with peo-
ple bringing in their cars for service. Also, the Union placed
a van it owned (and used as a mobile office), in that part
of the parking lot immediately adjacent to the auto center.
After picketing for about 3 hours in the manner described
above, the Union was notified by the police department that
Sears wanted the pickets off its property. After some discus-
sion, the Union was required to remove its pickets from the
parking lot and to move its van to a spot within the parking
lot further away from the auto center and closer to Larkfield
Road. From that time to the end of the strike on February
11, the Union’s picketing activity was confined to the perim-
eter of the mall’s parking lot on Jericho Turnpike and
Larkfield Road.
The Union asserts that picketing on Jericho Turnpike and
Larkfield Road was dangerous because of inadequate lighting
and the fact that snow was on the sidewalks thereby causing
the pickets to walk on the heavily trafficked streets. I find
this argument unpersuasive and I note that a few shovels and
a little muscle could easily have resolved this ‘‘dilemma.’’
More persuasive is the Union’s contention that being forced
to picket at the vehicular entrances to the mall’s parking lot,
meant that it could not target Sears’ customers, and that the
opportunity for communication with moving cars was neg-
ligible at best. It also was contended that in the past Sears
allowed other groups to use the parking lot for activities.
Nevertheless, this was credibly denied by Sears’ management
who testified that they barred such activity whenever it came
to their attention.
In support of its strike at East Northport, the Union also
engaged in picketing at the Smithhaven Mall on January 21.
This was carried out by nonemployee union members. Pick-
eting at this location was carried out initially in front of the
Sears auto center. However, on the request of Sears, the po-
lice informed the Union that it would have to remove its
pickets from this area and move to public streets on the pe-
rimeter of the mall. The Union complied.
The Smithhaven Mall is a much larger and more complex
facility than the mall at East Northport. In its design and
structure it is a massive suburban shopping center which op-
erates almost like a small downtown city center accessible
almost exclusively by automobile. The entire facility, includ-
ing parking lots is located on a 93-acre parcel of land on
which there are at least 200 retail stores. Sears owns 20 of
the acres at the northern end where it has a retail store and
a separately standing auto center. In the middle of the parcel
is a mall with a large number of smaller retail establishments
and the mall is flanked on the east by Macy’s and on the
west by Abraham and Strauss. On the northern border is a
two-lane street, which has an entrance leading directly to the
Sears retail store. That street runs to the east where it inter-
sects, at a traffic light, with New Moscheles Road which
runs south along the eastern border of the mall’s parking
lots. There is an entrance to the mall parking area on New
Moscheles Road leading directly to the Macy’s parcel. On
the southern border is Middle County Road and on the west-
ern border is Alexander Avenue which has an entrance lead-
ing directly to Abraham and Strauss. There is also an inner
perimeter road which circles the 93-acre parcel and it is ob-
vious that a driver entering into any of the entrances could
easily visit any of the major stores and any number of the
smaller establishments within the mall. Indeed, as an average
citizen, one appreciates how these shopping malls have be-
come the suburban substitutes for town centers and are
places where many people come to browse, to shop, to exer-
cise, or simply to pass the time of day.
Also picketed on January 21, was a Sears auto center lo-
cated in Hicksville, New York. At this location there is a
Sears retail store and a separate auto center located on a par-
cel of land owned by the Respondent. Unlike the other two
locations described above, this facility is not located within
a mall and there are no other business establishments on the
property. The store and the auto center are situated on a
piece of property which includes a large parking area. To the
west is Broadway (Route 107), to the north is Nevada Street,
to the east is Bay Avenue, and to the south is property
owned by someone else. On Broadway, which is a six-lane
road having a 35-mile-per-hour speed limit, there are five en-
trances to the Sears parking lot. There is also an entrance on
Bay Avenue. Both Bay Avenue and Broadway have side-
walks that separate the Sears parking lot from the streets.
About an hour after the picketing began in front of the
Hicksville auto center (in the parking lot area owned by
Sears), the pickets were asked to leave by Sears’ security
people. Somewhat later in the day, the Union was notified
by the Nassau County Police (at the Respondent’s request),
that the pickets would have to get off Sears’ property and
move to the public sidewalks. The Union complied. In so
doing, I note that this entailed moving the pickets a very
short distance from where they were situated initially. Thus,
rather than being inside the parking lot, the pickets now were
stationed (among other places), at the entrance closest to the
auto center and only a few yards from where they first
began. I also note that after moving, the pickets at Hicksville
were successful in talking to truckdrivers, some of whom
honored the picket line and refused to make delivery to the
Respondent.
63SEARS, ROEBUCK & CO.
Although the General Counsel claimed that picketing on
the sidewalk on Broadway was dangerous due to traffic con-
ditions, that contention was not particularly persuasive to me.
In this regard, I note that there is a sidewalk, there is light-
ing, there is a 35-mile-per-hour speed limit and there was no
other convincing evidence of danger.
After the strike was over, the Union, on September 19,
1988, commenced a campaign to organize the retail store
employees of the Respondent at East Northport. In this re-
spect, nonemployee union representatives stationed them-
selves at the employee entrance to the store, which is imme-
diately adjacent to the store’s main public entrance. At this
location, informational flyers were given to any persons who
wore a name tag identifying themselves as a Sears employee.
Other people were approached, asked if they worked for
Sears, and, if they replied affirmatively, were also tendered
a flyer.
About 8:30 a.m. the Company’s management told union
organizer Perry Baron that she could not remain on the prop-
erty and that she would have to leave ‘‘like the last time.’’
Thereafter, the union people stationed themselves at the
Larkfield Road entrance and at the main Jericho Turnpike
entrance where they handed out leaflets to drivers who were
entering the mall’s parking areas. Many of the recipients of
the leaflets were customers, not Sears’ employees. Some
people thought the flyers were advertising a sale, not exactly
the message intended. After this first day, the Union ceased
its activity.
In relation to the organizing activity at the East Northport
store, I note that by this time, the Union was ensconced as
the representative of Sears’ auto center employees. I also
note that although the auto center employees worked in a
separate building, they could use a common cafeteria area
made available to all Sears’ employees. Moreover, there was
no rule prohibiting union solicitations by employees.
I note that Sears, at all three stores, had posted notices to
the public which prohibited solicitations or distributions of
handbills and circulars without prior permission.
III. ANALYSIS
The problem of balancing an employer’s property rights
with the rights of employees to engage in collective action
pursuant to Section 7 of the Act, is one which, over the
years, has given rise to a fair number of vexatious cases.
This problem has to some degree been made more acute with
the invention of suburban shopping malls which are gen-
erally accessible only by automobile and which, in some
cases (such as the Smithhaven Mall), can take on many of
the characteristics of the public areas within cities or towns.
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956),
nonemployee union organizers were barred by the company
from handing out leaflets to employees in the company’s
parking lot. In that case, the plant was a manufacturing facil-
ity located on a 100-acre tract of land. About 40 percent of
the company’s 500 employees lived in a town a mile away
and more than 90 percent drove to work and parked in the
company lot. Because of traffic conditions, the Board found
that union organizers could not safely distribute leaflets to
employees as they entered or left the parking area. The
Court, rejected the Board’s conclusion that the company had
to permit access to its property, and stated:
It is our judgment, however, that an employer may
validly post his property against nonemployee distribu-
tion of union literature if reasonable efforts by the
union through other available channels of communica-
tion will enable it to reach the employees with its mes-
sage and if the employer’s notice or order does not dis-
criminate against the union by allowing other distribu-
tion. . . . This is not a problem of always open or al-
ways closed doors for union organization on company
property. Organization rights are granted to workers by
the same authority, the National government, that pre-
serves property rights. Accommodation between the two
must be obtained with as little destruction of one as is
consistent with the maintenance of the other. The em-
ployer may not affirmatively interfere with organiza-
tion; the union may not always insist that the employer
aid organization. But when the inaccessibility of em-
ployees makes ineffective the reasonable attempts by
nonemployees to communicate with them through the
usual channels, the right to exclude from property has
been required to yield to the extent needed to permit
communication of information on the right to organize.
. . . .
No restriction may be placed on the employees’ right
to discuss self-organization among themselves, unless
the employer can demonstrate that a restriction is nec-
essary to maintain production or discipline. But no such
obligation is owed nonemployee organizers. Their ac-
cess to company property is governed by a different
consideration. The right of self-organization depends in
some measure on the ability of employees to learn the
advantages of self-organization from others. Con-
sequently, if the location of a plant and the living quar-
ters of the employees place the employees beyond the
reach of reasonable union efforts to communicate with
them, the employer must allow the union to approach
his employees on his property. No such conditions are
shown in these records. [Citations omitted.]
In Hudgens v. NLRB, 424 U.S. 507 (1976), the Supreme
Court dealt with the balance between private property inter-
ests and employees’ interest in conducting an economic
strike in a shopping mall. Unlike the facts of Babcock &
Wilcox, supra, this case involved a situation where employ-
ees (as opposed to nonemployees), were engaged in an eco-
nomic strike against Butler Shoe Company, which had a
store in a shopping center owned by Hudgens. The pickets
were told that they were trespassing and warned that unless
they left, they would be arrested. The Court decided that the
issue of whether an employer violated Section 8(a)(1) of the
Act, by threatening the arrest of pickets, was to be governed
by the National Labor Relations Act and not by First
Amendment considerations. The Court’s majority stated, inter
alia
Both Central Hardware [407 U.S. 539], and Babcock
& Wilcox involved organizational activity carried on by
nonemployees on the employers’ property. The context
of the Section 7 activityin the present case was different
in several respects which may or may not be relevant
in striking the proper balance. First, it involved lawful
economic strike activity rather than organizational ac-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tivity. . . . Second, the Section 7 activity here was car-
ried on by Butler’s employees [albeit not employees of
its shopping center store], not by outsiders. . . . Third,
the property interests impinged upon in this case were
not those of the employer against whom the Section 7
activity was directed, but of another.
The Babcock & Wilcox opinion established the basic
objective under the Act: accommodation of Section 7
rights and private property rights ‘‘with as little de-
struction of one as is consistent with the maintenance
of the other.’’ The locus of that accommodation, how-
ever, may fall at differing points along the spectrum de-
pending on the nature and strength of the respective
Section 7 rights and private property rights asserted in
any given context. [Citations omitted.]
Most recently the Board, made a major restatement in this
area of the law. This was in Jean Country, 291 NLRB 11
(1988), where the Board held that the employers (including
the shopping center owner), violated the Act by barring non-
employees from engaging in picketing within a shopping
mall for the purpose of notifying the public that Jean Coun-
try did not pay wages and benefits in accordance with ‘‘area
standards.’’ The Board stated:
We read Babcock & Wilcox as indicating that the Gen-
eral Counsel bears the initial burden on the alternative
means factor, i.e., that the General Counsel must show
that without access to the property, those seeking to ex-
ercise the right in question have no reasonable means
of communicating with the audience that exercise of
that right entails. . . . This does not necessarily mean
that, in order to show that ostensible alternative means
of reaching a relevant audience are not reasonable alter-
natives, the General Counsel must show that the party
engaging in the Section 7 conduct actually attempted
those means and found them futile. What is required is
simply a clear showing, based on objective consider-
ations rather than subjective impressions, that reason-
ably effective alternative means were unavailable in the
circumstances. In some contexts, the attempt must in
fact have been made to support an objective conclusion
that an asserted alternative is not reasonable, although
in others the unreasonableness of the asserted alter-
native may be clear without such an attempt. . . . We
note however that, generally, it will be the exceptional
case where the use of newspapers, radio, and television
will be feasible alternatives to direct contact. . . .
Because the Supreme Court in Hudgens indicated
that there is a ‘‘spectrum’’ of Section 7 rights and pri-
vate property rights and that the place of a particular
right in that spectrum might affect the outcome of a
case, we are not free to assume that every Section 7
right is of equal weight . . . .
Factors that may be relevant to assessing the weight
of property rights include, but are not limited to, the
use to which the property is put, the restrictions, if any
that are imposed on public access to the property, and
the property’s relative size and openness. . . . Factors
that may be relevant to the consideration of a Section
7 right in any given case include, but are not limited
to, the nature to the right, the identity of the employer
to which the right is directly related [e.g., the employer
with whom a union has a primary dispute], the relation-
ship of the employer or other target to the property to
which access is sought, the identity of the audience to
which the communications . . . are directed, and the
manner in which the activity related to that right is car-
ried out. Factors that may be relevant to the assessment
of alternative means include, but are not limited to, the
desirability of avoiding the enmeshment of neutrals in
labor disputes, the safety of attempting communications
at alternative public sites, the burden and expense of
nontrespassory communication alternatives, and, most
significantly, the extent to which exclusive use of the
nontrespassory alternatives would dilute the effective-
ness of the message.
Although we have identified the foregoing factors
within categories labeled ‘‘property rights,’’ ‘‘Section 7
rights,’’ and ‘‘alternative means,’’ these categories are
not entirely distinct and self-contained. . . .
Accordingly, in all access cases our essential concern
will be the degree of impairment of the Section 7 right
if access should be denied, as it balances against the
degree of impairment of the private property right if ac-
cess should be granted. We view the consideration of
the availability of reasonably effective alternative
means as especially significant in this balancing proc-
ess. In the final analysis however, there is no simple
formula that will immediately determine the result in
every case. . . . For example, denial of access will
more likely be found unlawful when property is open
to the general public that when a more private character
has been maintained. . . . [Citations omitted.]
Picketing at East Northport in January 1988
Initially noted is that Sears owns the property consisting
of its retail store, its auto center, the mall, and the surround-
ing parking lot area. Therefore under Jean Country its con-
duct vis-a-vis the union’s activity at this location was based
on a legitimate property interest. Further, the evidence estab-
lishes that the property was posted with rules against public
solicitations and distributions that have been enforced in a
nondiscriminatory manner. Cf. Ordman’s Park & Shop, 292
NLRB 953 (1989), where the Board held that Respondents
had violated the Act when they allowed organizations to use
the premises but discriminated against union activity.
The Union’s initial conduct at East Northport consisted of
picketing in furtherance of its bargaining posture with the
Company. Thus, the Union’s activity was primary economic
activity constituting a ‘‘core Section 7 right,’’ (i.e., the right
to bargain collectively). Further that activity was engaged in,
for the most part, by Respondent’s employees who worked
at the auto center. That is, a majority of the people who
commenced picketing on January 21, 1988, were employed
by the Respondent. (The testimony was that of about 40
pickets present, 30 were employees of Sears and 10 were
not.)
The Union’s picketing at East Northport was initiated in
front of the Respondent’s auto center, away from the Re-
spondent’s retail store entrance and away from the other es-
tablishments in the mall. Accordingly, the picketing was car-
ried out in a manner to reach most effectively the targeted
65SEARS, ROEBUCK & CO.
audience (customers of the auto center), while avoiding en-
meshing any of the neutrals located on the overall property.
When the Union was required by the police, at the request
of the Respondent, to move its pickets to the public streets
on the periphery of the mall’s parking lot, it seems to me
that its means of communicating with its intended audience
was drastically reduced. At these locations it could briefly
brandish picket signs or attempt to hand out leaflets as cars
entered and passed through the entrances while driving to-
ward the stores.
In balancing the private property rights versus the Section
7 rights, it seems to me that the Respondent’s property inter-
est would suffer only a modest impairment if access had
been granted to the Union. On the other hand, it is my opin-
ion that the Union’s interest in primary picketing at the im-
mediate location of the primary dispute outweighed the Com-
pany’s property interest. This is especially true, given the
fact that most of the pickets were employees of the Com-
pany; the alternative means of communication to the in-
tended audience was relatively inadequate; and the picketing
on the public streets would have to some degree enmeshed
the other establishments at the mall. W. S. Butterfield Thea-
tres, 292 NLRB 30 (1988); Sahara Tahoe Hotel, 292 NLRB
812 (1989).
Leafletting at East Northport—September 1988
The Union on September 19, 1988, by organizer Perry
Baron and three other members (who were not employees of
Sears), arrived at the employee entrance to the Sears retail
store about 8 a.m. where they began to hand out leaflets to
Respondent’s employees. The purpose of the Union’s activity
was to organize employees of the Company and the intended
audience did not include members of the general public. The
activity was carried out in the parking lot in front of the
store near the main entrance, which is immediately adjacent
to the employee entrance. This went on for about 15 minutes
until the Union’s representatives were told by Sears’ man-
agement that they could not remain on private property.
Thereafter, for some part of the day the Union’s representa-
tives distributed leaflets to people in cars as they entered the
parking lot at the entrances on Larkfield Road and Jericho
Turnpike.
The evidence as to this incident discloses that although the
employees of the Sears auto center, who are represented by
the Union, do not generally have contact with the Respond-
ent’s retail store employees, they can and sometimes eat at
the Company’s cafeteria located in the store. Moreover, there
is no rule prohibiting employee solicitation or distribution of
union literature. Also, nothing would prevent, represented
employees from going to the timeclock area and writing
down the names of the store employees, thereby providing
the Union with alternative means of communicating its orga-
nizational message to them.
In my opinion, the situation here is decidedly different
from the picketing that occurred in January and February
1988. It seems to me that in this case, there was a reasonable
alternative available to the Union in communicating with its
intended audience, namely the employees of the Respond-
ent’s retail store. Thus, the Union represented a group of the
Respondent’s employees in the adjacent auto center and
those employees had access to the retail store employees in
the cafeteria and elsewhere during breaktimes. Further, there
was no prohibition by the Employer against employee union
solicitation or distribution. The facts are therefore distin-
guishable from those in Sahara Tahoe Hotel, supra, where
the Board held that exclusion of nonemployees was violative
of the Act despite the employer’s argument that the union
could have communicated to represented employees by using
off-duty employees. In that case, however, the argument was
rejected because the employer had also denied access to off-
duty employees for handbilling purposes, at the time of the
alleged violations.
Picketing at the Smithhaven Mall
Unlike the East Northport Mall which is quite modest in
size, the Smithhaven Mall is of a completely different mag-
nitude. The entire property is 93 acres, of which Sears owns
and occupies 20 acres. In addition to the Sears retail store
and separate auto center, there is Macy’s store, an Abraham
& Strauss store, plus over 200 smaller retail establishments.
It appears that access to the stores and the mall is primarily
by automobile and there is a gigantic parking lot surrounding
the shopping area. Access to the stores, including the Sears’
facilities may be made through a variety of entrances on the
various public roads surrounding the property. Although wit-
ness for the Respondent testified that most Sears’ customers
entered from the northern entrance, it seems to me that this
testimony was speculative at best.
It seems to me that all the reasons for finding a violation
in relation to the Respondent’s action of forcing the Union
at East Northport to do its picketing on the perimeter of the
parking lot, are applicable in spades to the situation at the
Smithhaven Mall. As I see no reason to repeat my analysis,
I shall conclude that Respondent violated Section 8(a)(1) of
the Act by precluding the Union from engaging in primary
picketing in front of its auto center within the Smithhaven
Mall. See also Mountain Country Food Store, 292 NLRB
967 (1989); Target Stores, 292 NLRB 933 (1989);
D’Alessandro’s, Inc., 292 NLRB 81 (1988).
Picketing at Hicksville
In furtherance of its economic strike against Sears, the
Union also set up pickets, by nonemployees, in front of a
Sears auto center in Hicksville, New York. Here too, the
pickets were initially established in the parking lot imme-
diately in front of the auto center. However, unlike the other
two facilities described above, the Sears retail store and its
auto center are on property owned and exclusively used by
the Respondent. That is, there are no other business estab-
lishments sharing the property, and in this respect, the prop-
erty is more similar to a normal industrial setting.
At some point during the day and after the picketing com-
menced, the Union was ordered by the Company to leave its
property and the Union complied. It thereupon set up pickets
at various entrances to the parking lot including the entrance
nearest to the auto center. At this entrance, the Union’s pick-
ets were basically the same distance from the auto center as
when they began their picketing inside the parking lot. In
short, being forced to the perimeter, simply did not make any
significant difference in this situation insofar as the ability of
the public or truckdrivers to see the Union’s picket signs. In-
deed, the evidence shows that during the period of the strike,
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
truckdrivers were asked to honor the picket line and that
many did so.
The General Counsel asserted that picketing on the public
sidewalks on the streets adjacent to the parking lot was dan-
gerous because of vehicular traffic. In my opinion, she did
not prove this assertion. The fact is that each of the streets
where pickets were posted were uncurved, lighted, and had
normal sidewalks between the roads and the parking lot. On
Route 107 the posted speed limit is 35 miles per hour. Al-
though the General Counsel’s witness gave vague testimony
as to accidents which almost happened, the evidence dis-
closes no accidents on these roads, either during the time of
the picketing or at any other times. (Presumably, if these
streets were so dangerous, the General Counsel or the Union
could have obtained public records or other information from
the appropriate governmental agencies showing to what ex-
tent, if any, accidents have occurred in the past.)
In my opinion, the Respondent’s private property interests
at Hicksville, outweigh the Union’s right to have access to
the Respondent’s property to engage in picketing activity. At
this facility, where there is no danger of enmeshing neutral
persons, its seems to me that the Union’s activity on the pub-
lic sidewalks immediately outside the Employer’s premises,
provided a reasonably effective and undiluted alternative
means of communicating with the Union’s intended audi-
ence. I therefore shall recommend that the complaint to the
extent that it alleges conduct at this location, be dismissed.
CONCLUSIONS OF LAW
1. By prohibiting the Union from engaging in primary eco-
nomic picketing at Respondent’s East Northport and
Smithhaven Mall auto centers in January and February 1988,
and by causing the police to demand that the Union remove
such pickets from the parking lot areas in front of the auto
centers, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. The Respondent has not violated the Act in any other
manner encompassed by the complaints.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Sears, Roebuck and Company, East
Northport, Smithtown, and Hicksville, New York, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of Local 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO from engaging in peaceful in-
formational picketing and handbilling in front of the auto
centers at the East Northport and Smithhaven Malls, and
causing the police to assist in the removal of such representa-
tives from the Respondent’s property, 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 oper-
ations of businesses not associated with the Respondent.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a)Post at its facilities in Smithhaven and East Northport,
New York, copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the act not specifically
found.