Simon Debartelo Group

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 282 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 26
282
Simon Debartelo Group a/w M. S. Management As-
sociates, Inc. and Local 32B-32J, Service Em-
ployees International Union.1 Case 29–CA–
23218–1
May 31, 2006
ORDER REMANDING PROCEEDINGS
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On December 1, 2000, Administrative Law Judge
Howard Edelman issued the attached decision in this
case. The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering brief.
The General Counsel and the Charging Party filed lim-
ited cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Consistent with our decision in Dish Network Service
Corp., 345 NLRB 1071 (2005), the Board has decided to
remand this case in order for another judge to review the
record and issue an appropriate decision.2
In this case and in many others, the same judge has
copied extensively from the General Counsel’s brief in
his decision. In each case, the judge then decided the
case in favor of the General Counsel.3 Our comparison
of the General Counsel’s brief and the judge’s decision
reveals that the majority of the judge’s decision was cop-
ied verbatim from the General Counsel’s posthearing
brief. The judge copied verbatim from the General
Counsel’s brief in both his factual statement and his legal
discussion.
In Dish Network, supra at 1071, we said:
“[I]t is essential not only to avoid actual partiality and
prejudgment . . . in the conduct of Board proceedings,
but also to avoid even the appearance of a partisan tri-
bunal.” Indianapolis Glove Co., 88 NLRB 986 (1950).
See Reading Anthracite Co., 273 NLRB 1502 (1985);
Dayton Power & Light Co., 267 NLRB 202 (1983).
Considering the instant case in the context of all of
these cases as a whole, the impression given is that Judge
Edelman simply adopted, by rote, the views of the Gen-

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 Member Liebman dissents from the remand order for the reasons
stated in her dissent in Regency House of Wallingford, 347 NLRB 173
(2006).
3 See CMC Electrical, 347 NLRB 273 (2006); Eugene Iovine, 347
NLRB 258 (2006); Regency House of Wallingford, 347 NLRB 173
(2006); Trim Corp., 347 NLRB 264 (2006); J.J. Cassone Bakery, Inc.,
345 NLRB 1305 (2005); Dish Network Service Corp., 345 NLRB 1071
(2005); Fairfield Tower Condominium Assn., 343 NLRB 923 (2004).
eral Counsel and failed to conduct an independent analy-
sis of the case’s underlying facts and legal issues.
We recognize that the Respondent did not specifically
except to the judge’s extensive copying. However, that
fact does not, and should not, preclude the Board from
taking corrective measures. It is the Board’s solemn ob-
ligation to insure that its decisions and those of its judges
are free from partiality and the appearance of partiality.
We understand that this remand delays the issuance of
a Board decision, and this may inconvenience the parties.
However, we believe that the fundamental necessity to
insure the Board’s integrity outweighs these considera-
tions.
In order to dispel this impression of partiality, we will
remand the case to the chief administrative law judge for
reassignment to a different administrative law judge.
This judge shall review the record and issue a reasoned
decision.4 We will not order a hearing de novo because
our review of the record satisfies us that Judge Edelman
conducted the hearing itself properly.
ORDER
IT IS ORDERED that the administrative law judge’s deci-
sion of December 1, 2000, is set aside.
IT IS FURTHER ORDERED that this case is remanded to
the chief administrative law judge for reassignment to a
different administrative law judge who shall review the
record of this matter and prepare and serve on the parties
a decision containing findings of fact, conclusions of
law, and recommendations based on the evidence re-
ceived. Following service of such decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.
Haydee Rosario, Esq., for the General Counsel.
Douglas J. Heckler, Esq. (Barnes & Thornburg), for the Re-
spondent.
Rebecca Schleifer, Esq. and Larry Engelstein, Esq. (SEIU), for
the Charging Party.

4 The new judge may rely on Judge Edelman’s demeanor-based
credibility determinations unless they are inconsistent with the weight
of the evidence. If inconsistent with the weight of the evidence, the
new judge may seek to resolve such conflicts by considering “the
weight of the respective evidence, established or admitted facts, inher-
ent probabilities, and reasonable inferences which may be drawn from
the record as a whole.” RC Aluminum Industries, Inc., 343 NLRB 939
fn. 2 (2004), quoting Daikichi Sushi, 335 NLRB 622, 623 (2001) (in-
ternal quotation marks and citations omitted). Alternatively, the new
judge may, in his/her discretion, reconvene the hearing and recall wit-
nesses for further testimony. In doing so, the new judge will have the
authority to make his/her own demeanor-based credibility findings.
SIMON DEBARTELO GROUP 283
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on June 20, 2000, in Brooklyn, New York.
Pursuant to a charge filed by Local 32B-32J, Service Em-
ployees International Union, AFL–CIO (the Union, a complaint
and notice of hearing issued on March 20, 2000, alleging that
Simon DeBartelo Group a/w M. S. Management Associates,
Inc., the Respondent, at its Roosevelt Field and Smith Haven
Malls (the Malls), violated Section 8(a)(1) of the Act, by inter
alia, informing employees that union solicitation was not per-
mitted at the Malls; engaging in surveillance of employees’
union activities; directing employees to cease distribution of
union leaflets to the public and to leave its parking lot; sum-
moning the Suffolk county police to have employees who were
distributing union leaflets removed from the parking lots of the
Malls, and threatening employees to call the police and report
them if they continued to distribute union leaflets to the public.
On the entire record in this case, including, my observations
of the demeanor of witnesses, and briefs filed by counsel for
the General Counsel, counsel for the Union, and counsel for the
Respondent, I make the following
FINDINGS OF FACT
Respondent, is a Delaware corporation, owns and manages
numerous shopping malls throughout the United States, includ-
ing the Smith Haven and the Roosevelt Field Malls, herein
collectively (the Malls), which are located in Suffolk and Nas-
sau Counties respectively, in the State of New York. During
the past 12 month period, which period is representative of its
annual operations generally, Respondent, in the course and
conduct of its business operations, derived gross rent revenues
from stores located in the malls in excess of $100,000, of which
in excess of $25,000 was derived from Federated Stores, Inc.
Federated Stores, Inc. is engaged in the retail sale of goods,
and leases stores from Respondent at its Smith Haven Mall, and
its Roosevelt Field Mall. During the past 12 month period,
which period is representative of its annual operations gener-
ally, in the course and conduct of its business operations, Fed-
erated Stores, Inc. purchased and received at its New York
facilities, goods valued in excess of $50,000 directly from en-
terprises located outside the State of New York.
It is admitted that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
It is also admitted that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
Respondent contracted its janitorial and maintenance ser-
vices for the Malls to Control Services Inc. (Control). In or
about July 1999, the Union began its campaign to organize the
maintenance employees at various Long Island shopping malls,
including the employees of Control employed at the Malls. As
part of the organizing drive, certain employees of Control who
worked in the Malls assisted the Union with its campaign by
distributing Union leaflets to other employees and the public.
With respect to the distribution of literature at the Malls, Re-
spondent maintains posted rules to the public which state, inter
alia, that “picketing, distributing handbills, soliciting and peti-
tioning require prior written consent of mall management.”
Respondent has an access permit policy which requires indi-
viduals wishing to solicit or distribute materials at the Malls to
complete an application to obtain use of the common areas in
the Malls.
The Union began an organizing campaign to organize the
employees of Control working at Respondents malls sometime
in August 1999.
On or about August 19, Kevin Stavris, Angel Gonzalez, and
Francisco Chang, the union representatives involved in the
organizing drive, met at the Roosevelt Field Mall with about 5
to 10 employees employed by Control. The union representa-
tives initially met employees inside the Mall in an area adjacent
to Sbarro’s Restaurant on the first floor of the mall. While the
employees and organizers were outside Sbarro’s Restaurant.
Angelo Scala, the director of security at the Roosevelt Field
Mall, and an admitted supervisor within the meaning of Section
2(11) of the Act, approached the employees and informed them
that soliciting was not allowed in the Mall. Because of Scala’s
objection, the organizers and employees entered the Sbarro’s
Restaurant where they met while having pizza. However, Scala
did not leave the area when the employees entered the restau-
rant. Rather, he stayed in front of the restaurant observing the
employees and the organizers through a glass window, which
separates the Sbarro’s Restaurant from the Mall corridors.
Stavris, the union organizer, testified that Scala and other Re-
spondent’s representatives remained standing in front of the
restaurant for about 15 minutes observing the employees and
the union representatives who were inside the restaurant.
Scala, testified that immediately after he told the employees
and union organizers that they could not congregate in the com-
mon area, the group moved inside Sbarro’s Restaurant where
they continued their meeting. Scala testified that he stood in
front of the Sbarro’s Restaurant to observe the employees be-
cause he wanted to ensure that the group would not come out to
the common area. According to Scala, he stayed at least 5
minutes observing the group inside the restaurant. Scala also
admitted during his testimony that he reported the employees’
meeting with the union representatives to Respondent’s higher
management. In this regard, Scala stated that he reported, “Just
who was there, that they were union, their representatives was
there and some of the employees of Control.”
On or about August 28, about five to eight employees of
Control distributed union leaflets on the sidewalk in front of the
entrance to the Smith Haven Mall which is located in front of
the food court of the Mall. That day, the employees also dis-
tributed leaflets in the parking lot of the Smith Haven Mall.
The employees were accompanied by Kevin Stavris, Johnny
Patterson, Alberto _______, Carlos Cortez, and Howard Raze,
the union organizers. It is undisputed that the employees dis-
tributing union leaflets were regularly assigned to work at the
Smith Haven Mall and that the union leafleting occurred during
employees’ nonworking time. The leaflet distributed on Au-
gust 28 at the Smith Haven Mall, is entitled “Important Shop-
pers Advisory,” and states, inter alia, the following:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD284
We are appealing for your support in our effort to unionize
because Control Services is NOT TREATING US FAIRLY
. . .
Ask SIMON administration to do the right thing.
Ask them why they are using a contractor that is unfair to
workers.
Ask them to use a contractor that respects workers rights . . .
On August 28, Respondent’s agents at the Smith Haven Mall
directed employees of Control to cease distributing union leaf-
lets to the public and to leave the sidewalk of the Mall and the
parking lot. Kevin Stavris testified that Trombino, the Director
of security at the Smith Haven Mall, and an admitted supervisor
within the meaning of Section 2(11) of the Act approached the
group of employees and organizers and told them that “[t]his is
not going on here today.” Stavris further testified that about six
police cars arrived at the scene. The police told the employees
and organizers that they could not distribute the flyers at the
Mall because of Respondent’s objections. While Stavris was
discussing with the police, the employees’ right to distribute the
union leaflets, Dennis Hejen, respondent manager of Smith
Haven Mall, approached the group which was in the parking
lot. The uncontroverted testimony of Stavris establishes that,
after some discussion with the police, Hejen “yelled” to the
police to arrest the employees and organizers if they stayed in
Respondent’s property.
On or about September 24, at the Roosevelt Field Mall, two
employees of Control distributed union leaflets to the public.
The employees were standing on the sidewalk outside the
Grand entrance to the Mall. It is undisputed that the Roosevelt
Field Mall was the regular work place for these two employees
and that they were leafleting during their nonworking time.
The leaflet, entitled “Important Shoppers Advisory,” is the
same as the one distributed by employees on August 28, at the
Smith Haven Mall. At the time, Respondent’s agents told two
employees that they were not allowed to distribute the union
leaflets on Respondent’s property and that if they continued to
do so, they would be arrested. They did not distribute the leaf-
lets.
On October 20, the employees of Control, accompanied by
the union organizers, met with Respondent’s manager, Jim
Lundgren. During their meeting, the employees gave Lundgren
a letter dated October 20, addressed to him. In the letter, em-
ployees informed Lundgren, in part, of certain problems en-
countered by employees with their maintenance work and the
conditions of the bathrooms in the Malls. The letter also stated
that employees are “concerned that [they] will get disciplined
because customers may see and report problems with the main-
tenance and bathrooms.” It further stated that the employees
have reported the conditions enumerated in the letter to the
supervisors of Control, but that the problems have not been
resolved.
On October 23, employees of Control whose regular work-
place was the Smith Haven Mall distributed union leaflets to
the public. The employees were accompanied by the union
organizers. While distributing the union leaflets, they were
standing on the sidewalk outside the main entrances to the
Smith Haven Mall. These employees were on their nonwork-
ing time. It is undisputed that Respondent’s agents directed the
employees of Control to cease distributing union leaflets to the
public and threatened to call the police if they continued to
distribute leaflets to the public. The leaflets distributed to the
public contained pictures of cockroaches, and stated, in part,
“Here’s What Control Workers—The Cleaning Contractor at
Smith Haven Mall—Face When We Take Our Lunch Breaks!”.
Trombino, respondent security director, testified that he was
present during the employees’ handbilling to the public. He
testified that, with the exception of one individual, employees
were “civil” and that they were just leafleting. He claimed,
however, that one of the individuals distributing the flyers was
stepping up and down on a bench and got down on his stomach
emulating a cockroach. However, a review of the videotape in
evidence which covers the leafleting at the Smith Haven Mall
on October 23, does not show any disruptive conduct on the
part of any of the individuals in handbilling. The recording of
the leafleting in front of the Smith Haven Mall begins at about
12.42 p.m., and it shows employees peacefully distributing the
leaflets to the public. At about 12:46 p.m., the recording shows
that the first security guard approached the employees handbill-
ing, and at about 12:48 p.m., an individual who appears to be
Trombino also approached the group. The security officers
remained with the group while they were handbilling until ap-
proximately 1:12 p.m., when the employees and other individu-
als leafleting had to leave the entrance of the Mall. The re-
cording does not show any disruptive conduct on the part of the
employees or organizers who were leafleting.
Analysis and Conclusions
Whether an employer’s observations of the employees’ un-
ion activities constitutes unlawful surveillance involves a de-
termination of whether, under the circumstances, the conduct
would tend to interfere with, restrain, or coerce employees in
their right to organize under Section 7 of the Act. Metal Indus-
tries, 251 NLRB 1523 (1980).
The totality of the circumstances in this case show that on
August 19, the Respondent’s observations of employees’ meet-
ing with the union organizers by Security Director Scala in the
Sbarro’s Restaurant at the Roosevelt Field Mall, unlawfully
interfered with employees’ union activities. Scala’s observa-
tions were part of Respondent’s efforts to keep employees’
union activities out of the Malls, including its public and non-
sales areas such as the restaurant. This is also evidenced by
Respondent’s admission that employees were not allowed to
peacefully distribute union literature in their nonworking time
and in nonsales areas. Specifically, Scala’s testimony that he
stood outside the Sbarro’s Restaurant to observe employees
meeting immediately after he told them that they were not al-
lowed to solicit at the Mall, is sufficient to establish unlawful
interference with employees union activities.
Scala’s testimony that he stood outside the restaurant just to
ensure that employees’ would not come out to the common
areas is disingenuous, unconvincing, and not credible. Scala’s
testimony indicates that employees did not pose any challenge
to his request for them to move out of the Mall’s corridor.
Thus, there was no reasonable basis for him to think that once
employees were inside, sitting down ordering pizza, they would
SIMON DEBARTELO GROUP 285
again come out of the restaurant to stand in the same place
where they were asked to move. Further, Scala’s testimony
that he reported the meeting to Respondent, i.e., “Just who was
there, that they were union, their representative was there and
some of the employees of Control . . ., is sufficient to establish
that he stood in front of the Mall to unlawfully surveille em-
ployees’ union activities and it was intended to discourage them
from engaging in any union activities at the Malls. Eddyleon
Chocolate Corp., 301 NLRB 887 (1991), where the Board
found that the employer engaged in unlawful surveillance when
president of the company closely observed union leafleting
while speaking on the car and later ordered participants to leave
premises. Respondent’s massage was clear, it did not want
employees at the Malls meeting with their union organizers and
it did not want them distributing union leaflets in any part of
the Malls.
In view of the absence of any evidence of disruptive conduct
on the part of the employees or organizers, I conclude Scala’s
surveillance of employees’ union meeting and his report to
Respondent of the employees meeting with their union organiz-
ers, is violative of Section 8(a)(1) of the Act.
It is well settled law that an employee has the right to dis-
tribute union literature during their nonworking time and in
nonworking areas. Republic Aviation Corp. v. NLRB, 324 U.S.
793 (1945); Hudgens v. NLRB, 424 U.S. 507 (1976); Gayfers
Department Store, 324 NLRB 1246 (1997). Historically, the
Courts and the Board have recognized the fundamental differ-
ence between the rights of employees to organize under Section
7 of the Act, and the rights of union organizers. NLRB v. Bab-
cock & Wilcox, 351 U.S. 106 (1956). With respect to the dis-
tribution of union literature, the Supreme Court has made a
“critical distinction” between employee and nonemployee so-
licitation. Lechmere, Inc. v. NLRB, 502 U.S. 527, 529 (1992).
In Lechmere, the Court reaffirmed its holding in Babcock &
Wilcox, that an employer may bar nonemployee union organiz-
ers from its property unless there is no reasonable nontresspas-
sory means for them to communicate. Lechmere, supra, 502
U.S. at 535. However, when the rights of employees are in-
volved, as in the instant case, the employer’s managerial rights,
rather than his property rights, are at issue. Republic Aviation,
supra; Eastex, Inc. v. NLRB, 437 U.S. 556 (1978).
The Board in Gayfers Department Store, supra, a case ex-
actly like the instant case, held that the applicable standard in
cases involving the rights of employees to distribute union lit-
erature during their nonworking time is the Republic Aviation
standard, where the Supreme Court held that an employer may
not bar the distribution of union literature by employees who
are in nonworking areas of its property during their nonworking
time unless the employer can show that its nonsolicitation rule
is necessary to maintain discipline and production. The Board
further held that employees who are working regularly and
exclusively on the premises of an employer other than their
own, as in the instant case, are “already rightfully” on the prop-
erty pursuant to their employment relationship. Gayfer, 324
NLRB at 1250, quoting Southern Service, 300 NLRB 1154
(1990), enfd 954 F.2d 700 (11th Cir. 1992); and Hudgen, supra
424 U.S. at 521 fn. 10.
Gayfer involved union leafleting during an organizing drive
by electrical employees who were assigned to work at Gayfer’s
department stores pursuant to their employment relationship
with Baroco. Gayfer had a published no solicitation rule which
prohibited the distribution of written or printed materials in the
selling areas of any time during store’s opened hours or at any
other place on Gayfer’s property. In applying the Republic
Aviation standard, the Board held that Gayfer violated Section
8(a)(1) of the Act, when it interfered with employees’ handbill-
ing at the entrances of its stores during their nonworking time
in nonsales areas. In addition, the Board held that Gayfer’s no
solicitation rule was overly broad and in violation of Section
8(a)(1) of the Act, because it prohibited solicitation and distri-
bution in nonselling areas of the premises, including the exte-
rior areas, during breaktimes and between employees’ shifts.
Gayfer, 324 NLRB at 1251, citing Our Way, Inc., 268 NLRB
394 (1983).
In the instant case, the underlying facts relating to Respon-
dent’s interference with the right of Control employees to dis-
tribute union literature are undisputed. The Malls of Respon-
dent is the place where Control employees are regularly as-
signed to work. On August 19 and 28, September 24, and Oc-
tober 23, Control employees were distributing union leaflets
during their nonworking time in nonsales areas outside the
Malls. Specifically, they were on the sidewalk in front of the
entrances of the Malls and in the parking lots of the Malls.
With the exception of the October 23 incident at Smith Haven
Mall, it is also undisputed that the employees’ leafleting was
peaceful and that their conduct consisted only in distributing
the union leaflets. Thus, the totality of the uncontroverted re-
cord shows that the Control employees’ distribution of litera-
ture was protected under the Republic Aviation standard. Re-
spondent did not submit any evidence to show that, consistent
with Republic Aviation, the employees’ leafleting should not be
protected because it interfered with the operations and mainte-
nance of the Malls.
Under Board law, an employer may also ban distribution of
literature on selling areas or selling floors. See J. C. Penny Co.,
266 NLRB 1223 (1983). However, the record evidence in the
instant case shows that Control employees were distributing the
union leaflets in nonsales areas outside the Malls. Thus, the
justification articulated by the Board in J. C. Penny for banning
employees’ handbilling in stores, is not applicable in the instant
case. Respondent’s contention that, as a property owner, it had
the right to ban the employees’ distribution of literature to pro-
tect its customers and its business, is not supported by the re-
cord evidence since Respondent did not show any disruption in
its operations and is not supported by the law which provides
that employees can peacefully handbill customers of mall
stores. DeBartelo Corp. v. Florida Gulf Coast Building Trades
Council, 485 U.S. 568, 583–588 (1988).
Further, Respondent’s posted rules banning the distribution
of written materials and solicitation in common areas without
first obtaining a permit from Respondent. An employer’s rules
which prohibit solicitation and distribution during employees’
nonworking time and in nonwork areas is presumptively unlaw-
ful. Ichikoh Mfg., 312 NLRB 1022 (1993), where the Board
found unlawful a rule requiring prior written consent for solici-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD286
tation and distribution of literature. See also Our Way, Inc,.
supra. In some instances, the Board had held such overly broad
rules to be lawful if an employer can show that it communi-
cated or applied the rule in a manner that it showed employees
its intent to permit solicitation during their nonworking time.
Our Way, Inc., 268 NLRB at 395 fn. 6 (citing Essex Interna-
tional, supra). However, the evidence in the instance case does
not show that such clarification was made by Respondent. To
the contrary, the stipulated record shows how Respondent re-
peatedly informed employees during their nonworking time and
in nonsales areas that solicitation was prohibited at its facilities.
In view of the foregoing, I conclude Respondent’s posted rules
are in violation of Section 8(a)(1) of the Act.
With exception of the August 28 threat to arrest employees
for distributing union leaflets at the Smith Haven Mall, Re-
spondent admits that it engaged in the conduct alleged in the
instant complaint relating to the distribution of union literature.
The uncontroverted testimony of union organizer Stavris shows
that on August 28, in the parking lot at the Smith Haven Mall,
Respondent’s manager, Hejen, “yelled” to the police to arrest
employees for distributing Union leaflets in its parking lot.
Thus, the conduct of Respondent, as alleged in the complaint, is
undisputed.
Respondent contends that the facts of the instant case are
controlled by the Supreme Court’s holding in Lechmere, and
that Republic Aviation must be reading light of, and limited by
Lechmere.
In fact, the reverse is true. Despite the Court’s board lan-
guage, Lechmere has only a limited effect. By own terms,
Lechmere applies only to nondiscriminatory prohibitions an
nonemployee attempts to communicate with employees on the
employer’s property. See John Ascuaga’s Nugget v. NLRB,
968 F.2d 991, 997–998 (9th Cir. 1992).
The instance case is clearly controlled by Republic Aviation
and Gayfers. Accordingly, I conclude that based upon Respon-
dent’s conduct described above, Respondent violated Section
8(a)(1) of the Act by: informing Control employees that union
solicitation was not permitted at the Malls; directing employees
to cease distributing union leaflets to the public and asking
them to leave the Malls; calling the Suffolk county police to
have the Control employees removed from the Malls and the
parking lots because they were distributing union leaflets; and
by threatening Control employees that Respondent would call
the police if they did not cease distributing union leaflets and
leave the Malls’ premises.
An employee may communicate with a third party in an ef-
fort to obtain the third party’s assistance in circumstances
where the communication is related to a legitimate labor dis-
pute between the employees and their employer. Emarco, Inc.,
284 NLRB 832, 833 (1987), citing NLRB v. Electrical Workers
Local 1229, 346 U.S. 464 (1953); (Allied Aviation Service Co.,
248 NLRB 229 (1980), citing Richboro Community Mental
Health Council, Inc., 242 NLRB 1267 (1979). The Board has
also held that harsh criticism of an employer’s product or in-
adequate and unsanitary conditions is protected under the Act,
where the communication raises issues related to the employ-
ees’ working conditions. Misericordia Hospital Medical Cen-
ter v. NLRB, 623 F.2d 808, 812–813 (2d Cir. 1980). Thus, the
threshold question is whether the communication constitutes
concerted activity. Once a determination is made that the
communication is protected, it is the employer’s burden to
show the communication in question is malicious in nature.
Springfield Library & Museum, 238 NLRB 1673 (1979).
Generally, with respect to the element of malice, Respondent
has the burden of establishing that “the words were published
with the knowledge of their falsity or with a reckless disregard
of whether they were true or false.” Diamond Walnut Growers,
316 NLRB 36, 47 (1995), enfd. in part and denied in part 113
F.3d 1259 (D.C. Cir. 1997), citing Springfield Library & Mu-
seum, supra. However, “specificity and/or articulation are not
the touchstone of union or protected activity.” Diamond Wal-
nut Growers, 316 NLRB at 47, citing Springfield Library &
Museum, supra. The Board has held that in the context of an
emotional labor dispute, remarks that reflect bias or hyperbole
will not be considered reckless or maliciously untrue as to lose
the protection of the Act. Emarco, Inc., 284 NLRB 832 (1987).
Furthermore, in Diamond Walnut, where employees urged the
public to boycott the company, stating, in part, that scabs were
packing “walnut with mold, dirt, oil, worms and debris,” the
Board found that the communication was not maliciously false
and that it was protected because it related to an ongoing labor
dispute. Diamond Walnut Growers, 316 NLRB at 46.
In the instant case, the language in the flyer distributed to the
public on October 23 at the Smith Haven Malls shows that the
remarks were related to the employees’ working conditions.
The flyer, which states, in part, that, “Here’s what Control
workers—the Cleaning Contractor at Smith Haven Mall—face
when we take our lunch,” and that “Control workers do not
want to lose their jobs because of consumer dissatisfaction.”
Clearly relates to the employees’ concerns about their working
conditions. It is undisputed that Control employees used the
food court of the Mall to take their lunch or that the communi-
cation related to their working conditions of Control employ-
ees. In addition, the October 20 letter, which was hand deliv-
ered to Manager Lundgren before distributing the flyer, shows
that the employees were concerned that the sanitary conditions
at the food court would lead to disciplinary action by Control
against them for a situation, which according to the employees’,
should be remedied by Control or Respondent. The remarks in
the flyer as well as the October 20 letter are sufficient to show
that the employees’ communication with the public on October
23 seeking its’ assistance, is protected under the Act.
Respondent failed to submit any evidence to show that the
statement concerning the presence of cockroaches in the food
court was maliciously false or reckless. Similarly, Respondent
failed to show that the conduct of employees during their dis-
tribution of the leaflets was disruptive of their operations. The
videotape in evidence shows that all of the individuals who
were handbilling were doing so in a peaceful and civil manner.
The testimony of Trombino, Respondent’s security director,
asserting that one of the employees distributing flyers was emu-
lating a cockroach, is not sufficient to deem the employees’
conduct unprotected. Further, Trombino’s testimony is not
supported by the videotape in evidence. The videotape shows
when Respondent’s security officers first approached the group
of individuals’ handbilling and how the officers remained with
SIMON DEBARTELO GROUP 287
the group until they left. The videotape does not show any
individual on the grounds emulating a cockroach. Even, as-
suming arguendo, that Trombino’s testimony is true, I would
still conclude that under Board precedent, the conduct is still
protected because such emotional display, hyperbole and ap-
peal to the emotions are the type of conduct which is typical of
organizing campaigns and protests relating to labor disputes.
Diamond Walnut Growers, 316 NLRB at 47, citing Mitchell
Manuals, 280 NLRB 230 (1986).
CONCLUSIONS OF LAW
1. Simon DeBartelo Group a/w M. S. Management Associ-
ates, Inc. is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 32B-32J, Service Employees International Union,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent, as set forth above in the analysis section, and
in the Order, below has committed various violations within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices offset commerce
within the meaning of Section 2(6), (7), and (8) of the Act.
THE REMEDY
Having found Respondent has engaged in unfair labor prac-
tices, I shall recommend it be ordered to cease and desist there-
from and to take certain affirmative action to effectuate the
policies of the Act.
On the foregoing findings and conclusions and the entire re-
cord, I issue the following recommended.1
ORDER
The Respondent, Simon DeBartelo Group, a/w M. S. Man-
agement Associates, Inc., Smith Haven Mall, Lake Grove, New
York, New York, and Roosevelt Field Mall, Camden City, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Surveilling its employees activities on behalf of Local
32B-32J, Service Employees International Union, AFL–CIO.
(b) Promulgating and enforcing a no solicitation provision
which prohibits its employees from distributing union literature
in nonworking areas of Respondents Roosevelt Field and Smith
Haven Malls (the Malls), during nonworking time.
(c) Informing and directing its employees that solicitation of
union literature in nonworking areas of its Malls, during non-
working time is not permitted.
(d) Threatening to summon police in order to remove its
employees from attempting to distribute union literature in
nonworking on its Malls and during nonworking time.
(e) Summoning police to remove its employees from dis-
tributing union literature at its Malls in nonworking areas and
during nonworking time.

1 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 objections to them shall be deemed waived for all pur-
poses.
(f) In any like or related matter interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Rescind and annul the no-solicitation/no-distribution rule,
described above, insofar as it forbids solicitation of union
membership and distribution of materials protected b Section 7
of the Act, anywhere on its premises by its own employees or
by employees otherwise employed to work on its premises
during nonworktime.
(b) Within 14 days after service by the Region, post at its
mall facilities in Smith Haven and Roosevelt Field, New York,
copies of the attached notice marked “Appendix.”2 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployed by the Respondent at any time since December 21,
1999.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent had taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
WE WILL NOT surveil our employees activities on behalf of
Local 32B-32J, Service Employees International Union, AFL–
CIO.
WE WILL NOT promulgate or enforce a no solicitation provi-
sion which prohibits our employees from distributing union
literature in nonworking areas of our Roosevelt Field and Smith
Haven Malls (the Malls), during nonworking time.
WE WILL NOT inform or direct our employees that solicitation
of union literature in nonworking areas of our Malls, during
nonworking time is not permitted.

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
WE WILL NOT threaten to summon police in order to remove
our employees from attempting to distribute union literature in
nonworking on our Malls and during nonworking time.
WE WILL NOT summon police to remove our employees from
distributing union literature at our Malls in nonworking areas
and during nonworking time.
WE WILL NOT in any like or related matter interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind and annul the no-solicitation/no-distribution
rule, described above, insofar as it forbids solicitation of union
membership and distribution of materials protected by Section
7 of the Act, anywhere on our premises by our own employees
or by employees otherwise employed to work on our premises
during nonworktime.
SIMON DEBARTELO GROUP A/W M.S. MANAGEMENT
ASSOCIATES, INC.