Simon Properties Group

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 1887 (N.L.R.B. 2011)

SIMON DEBARTOLO GROUP
357 NLRB No. 157
1887
Simon DeBartolo Group a/w M. S. Management As-
sociates, Inc. and Local 32B–32J, Service Em-
ployees International Union. Case 29–CA–
023218
December 30, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
The primary issue in this case is whether the Respond-
ent, Simon DeBartolo Group (Simon), violated Section
8(a)(1) of the Act by prohibiting employees of its
maintenance contractor, Control Building Services (Con-
trol), from engaging in organizational handbilling at two
shopping malls owned by Simon.1 The judge found the
violation, relying primarily on the Board’s decision in
Gayfers Department Store, 324 NLRB 1246 (1997),
which treated the employees of contractors, like those of
Control, as having the same access rights that employees
of the owner have under Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945).
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to

1 Administrative Law Judge Howard Edelman conducted the hearing
in this case on June 20, 2000, and issued his decision on December 1,
2000. On May 31, 2006, the National Labor Relations Board remanded
the case for reassignment to a different administrative law judge to
review the record and issue a new decision. 347 NLRB 282 (2006).
The Charging Party filed a motion for reconsideration of the remand,
which the Board denied on June 30, 2006. On July 13, 2006, Adminis-
trative Law Judge George Carson II issued the attached supplemental
decision. The Respondent filed exceptions and a supporting brief. On
August 25, 2006, the Charging Party moved to submit an untimely
answering brief. The Board denied this motion in an Order dated April
27, 2007.
We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, and we shall
substitute a new notice to conform to the Order as modified. We shall
further modify the judge’s recommended Order to provide for the post-
ing of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010).
We adopt the judge’s finding that the Respondent’s security director,
Angelo Scala, engaged in unlawful surveillance of the Control employ-
ees’ meeting with union representatives on August 19, 1999. In except-
ing to this finding, Simon cites Scala’s testimony—which it describes
as undisputed—that he only asked the Control employees and union
organizers not to congregate in the middle of the mall’s common area.
But the parties stipulated that, on August 19, Simon’s agent (indisputa-
bly Scala) “approached the employees and informed them that solicit-
ing was not allowed at the facility.” In adopting the judge’s conclusion
that Scala’s conduct violated Sec. 8(a)(1), we rely on the reasons stated
by the judge. Our dissenting colleague, in accepting Scala’s explana-
tion that he watched the employee meeting with the union because he
“wanted to make sure they wouldn’t come down into the common area
of the mall and congregate in the common areas of the mall,” relies on
testimony that Judge Carson expressly found “incredible” and that
Judge Edelman, who presided over the trial, also found “not credible.”
adopt the judge’s conclusions consistent with our deci-
sion in New York New York Hotel & Casino, 356 NLRB
907 (2011) (NYNY), which overruled the rationale of
Gayfers, supra,2 and adopted a new test for determining
access rights in cases like this one. Guided by NYNY, as
explained below, we find that Simon violated Section
8(a)(1) by prohibiting the handbilling at issue.
Facts
The parties’ stipulation of facts, which was admitted
into the record at the hearing, establishes that, in July
1999,3 the Union began a campaign to organize Control
employees at various Long Island shopping malls, in-
cluding Simon’s Roosevelt Field Mall and Smith Haven
Mall. According to the stipulation, on three occasions,
off-duty Control employees sought to distribute handbills
to customers at the exterior entrances of Roosevelt Field
and Smith Haven, as follows:
First, on August 28, a group of five to eight off-duty
Control employees who regularly worked at Smith Ha-
ven distributed leaflets on the sidewalk outside a Smith
Haven entrance and in its parking lot.4 Agents of Simon
directed the Control employees to stop distributing the
flyer to the public and to leave the sidewalk and parking
lot. Based on testimony, the judge found further that
Simon agents threatened to call the police if handbilling
continued; that Smith Haven Security Director Michael
Trombino called the police, after which about four to six
police cars arrived on the scene; and that Smith Haven
Mall Manager Dennis Hejen asked the police to arrest
Control employees and union representatives who did
not stop handbilling.5
Second, on September 24, two off-duty Control em-
ployees who regularly worked at Roosevelt Field handed
out union flyers on the sidewalk outside Roosevelt
Field’s grand entrance and were told by a Simon agent
that they were not allowed to hand out flyers on mall

2 NYNY, 356 NLRB 907, 913 fn. 27.
3 All dates are in 1999, unless specified otherwise.
4 That handbill—which was also distributed at Roosevelt Field on
September 24—stated, among other points, “[w]e are appealing for
your support in our effort to unionize because Control Services is NOT
TREATING US FAIRLY” (emphasis in original) and “[p]lease show
support by telling Simon that you support the cleaners in this mall.”
The handbill also stated, “[n]o dispute with any other employer or
Simon Administration. No request to any person to cease perform[ing]
services or making deliveries. This is an appeal to [the] public.”
5 The Control employees were not ticketed or arrested; however, the
record reflects that the police required them to move off the mall’s
property.
The Control employees who handbilled at Smith Haven Mall on Au-
gust 28 and October 23 were accompanied by union organizers who
were not employed by Control or Simon. The General Counsel did not
allege, and the judge did not find, that Simon acted unlawfully with
regard to the union organizers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1888
property and that if they continued to do so they would
be arrested for trespassing.
Third, on October 23, off-duty Control employees who
regularly worked at Smith Haven distributed leaflets to
the public on the sidewalk outside one of Smith Haven’s
main entrances.6 Simon directed the Control employees
to stop distributing union leaflets to the public and
threatened to call the police if the leafleting continued.
According to Simon’s incident report regarding the Oc-
tober 23 events, the police were called but the Control
employees had already stopped leafleting when they ar-
rived.
Analysis
In NYNY, supra, the Board addressed the “situation
where . . . a property owner seeks to exclude, from non-
working areas open to the public, the off-duty employees
of a contractor who are regularly employed on the prop-
erty in work integral to the owner’s business, who seek
to engage in organizational handbilling directed at poten-
tial customers of the employer and the property owner.”
356 NLRB 907, 918–919 (footnote omitted).7 The Board
held that:

[T]he property owner may lawfully exclude such em-
ployees only where the owner is able to demonstrate
that their activity significantly interferes with his use of
the property or where exclusion is justified by another
legitimate business reason, including, but not limited
to, the need to maintain production and discipline (as
those terms have come to be defined in the Board’s
case law).
Id. at 13.
A property owner may prevent contractors’ employees
from engaging in otherwise protected conduct on its
property to the same extent and for the same reasons that
it may restrict its own employees’ protected conduct. Id.

6 The handbill distributed on October 23 said, “Control Building
Services employees are organizing with Local 32 B-J SEIU for their
rights, dignity and respect. Control has violated federal labor law when
its workers organize and is continuing to do so. . . . No dispute with
any other employer. No request to any person to cease performing
services or making deliveries. This is an appeal to the public.” The
handbill also referred to cockroaches in the mall’s food court, and one
of the handbillers allegedly imitated a cockroach for about 20 seconds
during the handbilling.
The judge found that the alleged cockroach imitation did not make
the handbilling “unruly” and that neither that conduct nor the flyer’s
cockroach references were the basis for Simon’s efforts to stop the
handbilling; therefore, the judge found he did not need to decide
whether the contents of the handbill might, under other circumstances,
have rendered the exclusion lawful. Simon has not excepted to these
findings; consequently, these issues are not before us.
7 NYNY involved the employees of a food service contractor, Ark,
who worked on the premises of a hotel and casino.
But, under NYNY, to prevent contractors’ employees
from engaging in otherwise protected conduct on its
property under circumstances when it could not lawfully
restrict comparable conduct by its own employees, the
owner must demonstrate that the greater restrictions are
justified by a heightened risk of disruption or interfer-
ence with its use of the property created by the fact that
contractors’ employees, rather than its own employees,
are engaged in the conduct. See id., slip op. at 13 fn. 49
(analogizing to Hillhaven Highland House, 336 NLRB
646 (2001), enfd. sub nom. First Healthcare Corp. v.
NLRB, 344 F.3d 523 (6th Cir. 2003), which accommo-
dated rights of property owner and offsite employees
based on recognition that offsite employees’ “activities
arguably caused the owner heightened concern” beyond
the concerns caused by activities of onsite employees).
This new test, the Board explained, would be applied
retroactively. Id. at 14 fn. 53.
1. The test announced in NYNY is properly applied
here. The off-duty Control employees were regularly
employed on Simon’s property in work integral to Si-
mon’s business.8 They sought to engage in organization-
al handbilling directed at Simon’s customers, in exterior,
nonworking areas open to the public.9

8 The dissent suggests that the stipulated record in this case offers in-
sufficient information about the regularity of the Control employees’
work at the malls to support application of the NYNY analysis. But the
parties stipulated that the employees worked “regularly” at the mall
where they sought to distribute flyers. We can take administrative
notice of the fact that the malls at issue are physically enormous enter-
prises. The Roosevelt Field Mall is the ninth largest in the country,
with 270 stores, covering a total area of 2,162,600 square feet. See
“Largest Shopping Malls in the United States,” American Studies at
Eastern Connecticut State University
http://nutmeg.easternct.edu/~pocock/MallsLarge.htm;
http://www.simon.com/mall/?id =102. Based on the parties’ stipulation
and the nature of the task performed by the janitors—cleaning these
enormous malls—we find it is more likely than not that the janitors’
work at the malls is not so fleeting or occasional as to take this case
outside the holding in NYNY. To require that they work “exclusively”
at the mall, as our colleague would do, is too strict a standard. The mall
is the janitors’ regular workplace whether they also work at a different
location on weekends (or even less frequently) or not.
9 The dissent asserts that the mall’s customers were “at best, only
secondarily potential consumers of [Control’s cleaning and mainte-
nance] services.” However, the malls’ cleanliness and upkeep was at
least as essential to Simon’s ability to serve its customers as the food
service provided at NYNY’s hotel and casino, and all mall customers
enjoy (i.e., consume) the cleanliness of the malls.
In any event, as the Board explained in NYNY, “what matters here is
less the intended audience of the [contractor] employees than that the
[contractor] employees were exercising their own rights under Section
7 in organizing on their own behalf.” NYNY, supra, slip op. at 9. Here,
as in NYNY, the organizational purpose of the Control employees “rests
at the core of what Congress intended to protect through Section 7 . . .
[and] [t]his is true regardless of the primary audience of the organiza-
tional communication.” Id.
SIMON DEBARTOLO GROUP 1889
2. The issue, then, is whether Simon has been able to
make the showing required by NYNY: that the Control
employees’ activity “significantly interferes with [Si-
mon’s] use of the property or [that] exclusion is justified
by another legitimate business reason, including, but not
limited to, the need to maintain production and disci-
pline.” 356 NLRB 907, 919. We find that Simon has
not carried its burden here.
Simon asserts that, as the owner of the entire mall and
its grounds, it “has legitimate business reasons for being
concerned about activities and events on mall property
which could interfere with the rights of tenants, the en-
joyment by customers of shopping at the mall, or could
lead to accidents or property damage resulting in liability
to Simon.” Simon adds that handbilling by Control’s
employees threatens “the interests of all of the other ten-
ants and customers using the facility, who desire to avoid
this type of hassle and disruption in connection with their
shopping or work experiences.” Although Simon con-
tends that it need not show that such handbilling causes
actual disruption and intrusion,10 it argues that it has
made such a showing, stating:

Common sense dictates the conclusion that the mall’s
reputation would be impacted by Union allegations of
cockroaches in the food court, and that the ability of
shoppers and the employees of other tenants to come
and go from the facility free from harassment or nui-
sance would be disrupted to some extent by handbillers
standing in front of entrance doors. Likewise, shoppers
likely would not call Simon to register a complaint,
[sic] they would simply take their business elsewhere!

The abstract and generalized concerns expressed by
Simon concerning the Control’s employees’ distribution
of handbills on mall property could equally be expressed
about its own employees’ comparable activity. Never-
theless, the law is clear that Simon’s employees have a

The facts here would seem to present an even stronger case for find-
ing access rights than did NYNY in one respect. In contrast to the con-
tractor in NYNY, Control had no leasehold on Simon’s property. To
engage in organizational activity at their worksite, then, the Control
employees had no alternative but to station themselves on property
owned and fully controlled by Simon.
10 Simon’s primary contention is that Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992), provides the applicable standard regarding the Control
employees’ right to access for handbilling, an argument we rejected in
NYNY. 356 NLRB 907, 912–913. Despite Simon’s reliance on
Lechmere, the applicable standard at the time of the handbilling at issue
was indisputably that of Gayfers, supra, which required Simon to
demonstrate that the handbilling interfered with production or disci-
pline. While NYNY altered the Gayfers standard, retroactive applica-
tion of NYNY is not unfair because Simon attempted to make the requi-
site showing of disruption.
right to engage in such activity on mall property and
thus, under NYNY, so do Control’s employees.
The only argument advanced by Simon that might be
understood to suggest that Control employees’ handbill-
ing on mall property posed a heightened risk of disrup-
tion is Simon’s assertion that the risk of interference is
heightened by the “multi-tenant, mixed-use” nature of its
properties, where employees of multiple entities might
seek to engage in handbilling in multiple nonwork areas
of the mall. But this concern applies equally to Simon’s
own employees. Moreover, Simon has not demonstrated
that its prohibition of the Control employees’ handbilling
was actually based on this concern,11 or, more important-
ly, that a blanket prohibition of handbilling by contractor
employees was necessary to prevent any such heightened
risk of interference.12 Such a blanket prohibition would
clearly not be the sort of “reasonable, nondiscriminatory,
narrowly-tailored restrictions on the access of contrac-
tors’ off-duty employees, greater than those lawfully
imposed on its own employees,” that NYNY left open as a
possibility. 356 NLRB 907, 919.
While Simon argues that it has made a showing of ac-
tual disruption, the record simply does not support Si-
mon’s assertions. There is no evidence that the Control
employees’ handbilling interfered with customers’ or
tenants’ access to or use of the malls.13 Nor has Simon
explained how handbilling by Control’s employees in-
creased the risk of accidents or property damage.

11 Although each mall maintained a rule stating “[p]icketing, distrib-
uting handbills, soliciting and petitioning require the prior written con-
sent of mall management,” the judge found that Simon did not cite
these rules when it informed the Control employees that they could not
distribute flyers, and thus Simon did not enforce these rules in its deal-
ings with the Control employees. Simon did not except to this finding
or to the judge’s related finding that Simon’s rule was not addressed to
persons working on the mall property.
12 The dissent suggests that we have insufficiently analyzed the ex-
tent of Simon’s control over the Control employees. But, in contrast to
the owner in NYNY, Simon did not argue that it lacked sufficient
nonemployment-based means to protect its property rights. More im-
portantly, as the Board explained in NYNY, an owner’s “ability to pro-
tect its operational and property interests in relation to its contractors’
employees is the rule, not the exception. . . . Our experience suggests
that . . . a relationship [between employer/contractor and property own-
er] ordinarily permits the property owner to quickly and effectively
intervene, both through the employer and directly, to prevent any inap-
propriate conduct by the employer’s employees on the owner’s proper-
ty.” NYNY, supra, slip op. at 11. We have no doubt whatsoever that
Simon, one of the largest commercial real estate firms in the country,
could have secured in its contract with Control any provisions needed
to ensure that Control exercised its authority as the janitors’ employer
to protect Simon’s property rights and other interests.
13 As discussed in fn. 6, Simon does not except to the judge’s finding
that the cockroach-related message was not the basis for Simon’s ac-
tions against the Control handbillers. Thus, we need not decide wheth-
er that message would have justified the exclusion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1890
Our colleague attacks with considerable rhetorical gus-
to a holding he suggests the Board reached in NYNY. But
the holding he describes is not one found in that decision.
First, our colleague states that in NYNY, “the existence of
a contractual employment relationship with the property
owner is of no significance.” But NYNY clearly states:
“We leave open the possibility that in some instances
property owners will be able to demonstrate that they
have a legitimate interest in imposing reasonable, non-
discriminatory, narrowly-tailored restrictions on the ac-
cess of contractors’ off-duty employees, greater than
those lawfully imposed on [their] own employees.” 356
NLRB 907, 919. Indeed, NYNY further states that the
holding permits a “property owner to impose reasonable,
narrowly tailored restrictions on access [by contractors’
off-duty employees] when demonstrably necessary.” Id.
Second, our colleague states that in NYNY, “[i]f the
contractor employees work ‘regularly’ on the property,
there is no case-specific balancing or accommodation of
competing rights.” But NYNY clearly states that if a
property owner places “unique restrictions on contractor
employees’ access,” they “will be evaluated consistent
with the accommodation of interests we have engaged in
here . . . on a case-by-case basis.” Id., slip op. at 13.
Third, our colleague states that in NYNY, “all the prop-
erty owner is left with . . . is the limited management
right to maintain ‘production or discipline.’” But NYNY
clearly states,

the property owner may lawfully exclude such employ-
ees . . . where the owner is able to demonstrate that
their activity significantly interferes with his use of the
property or where exclusion is justified by another le-
gitimate business reason, including, but not limited to,
the need to maintain production and discipline (as those
terms have come to be defined in the Board’s case
law). Thus, any justification for exclusion that would
be available to an employer of the employees who
sought to engage in Section 7 activity on the employer's
property would also potentially be available to the
nonemployer property owner, as would any justifica-
tion derived from the property owner’s interests in the
efficient and productive use of the property.

Id., slip op. at 13.

We think it is worth making clear, in conclusion, the
very modest exercise of fundamental statutory rights at
issue in this case: janitors who clean the Respondent’s
two shopping malls attempted to peacefully pass out fly-
ers at the exterior entrances to the malls.14 The janitors

14 Our colleague suggests that under his test, these janitors might
have a right to distribute flyers “in or at the perimeter of mall parking
did not attempt to pass out flyers in any stores in the
malls. In fact, when engaged in that peaceful expressive
activity, they did not even enter the malls, according to
the judge’s findings. Our colleague recoils from the no-
tion that “the welcome mat is apparently out for organi-
zational activity,” but “organizational activity” is precise-
ly what Congress sought to protect by passing the Na-
tional Labor Relations Act in 1935. That congressional
policy remains unaltered as expressed in Section 7 of the
Act today. Accordingly, the decision in NYNY appropri-
ately protects employees’ right to engage in peaceful
organizational activity at their own workplace while fully
recognizing and balancing the legitimate rights and inter-
ests of property owners.
Conclusion
Accordingly, we find that Simon violated Section
8(a)(1) by prohibiting the Control employees from en-
gaging in public-directed organizational handbilling at
the entrances to Roosevelt Field and Smith Haven Malls.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Simon
DeBartolo Group a/w M. S. Management Associates,
Inc., Garden City and Lake Grove, New York, its offic-
ers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Engaging in surveillance of off-duty employees
engaging in the union activity of meeting with represent-
atives of Local 32B–32J, Service Employees Internation-
al Union, or of any other union.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its Roosevelt Field Mall, Garden City, New York, and
Smith Haven Mall, Lake Grove, New York, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-

lots.” But it is not at all clear how moving the janitors to a slightly
different exterior, nonwork area open to the public would affect any of
the legitimate rights and interests carefully balanced in NYNY.
SIMON DEBARTOLO GROUP 1891
ent 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 cur-
rent employees and former employees employed by the
Respondent at any time since August 19, 1999.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HAYES, dissenting.
I. INTRODUCTION
In New York New York Hotel & Casino, 356 NLRB
907 (2011) (NYNY), the majority purported to create a
new access test for contractor employees who are “regu-
larly” employed on a private property owner’s premises.
It required no clairvoyance to predict, as I did in my dis-
sent, that in future cases the majority’s test would reflex-
ively vest such contractor employees with the same
broad access rights enjoyed by employees of a property
owner under the Supreme Court’s decision in Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945). The ma-
jority does just that in this case.1
The majority’s decision today suffers from the same
flaws as the NYNY decision upon which it is based. First,
my colleagues continue to fail to observe what the Su-
preme Court has repeatedly reiterated is the “critical dis-
tinction” between the access rights of a property owner’s
employees and those of nonemployees (e.g., contractor
employees), Lechmere, Inc. v. NLRB, 502 U.S. 527, 533
(1992), a distinction the Court has admonished is “one of
substance.” NLRB v. Babcock & Wilcox Co., 351 U.S.

1 In addition to dissenting from the majority’s application of the
NYNY test here, I also dissent from the majority’s finding that the Re-
spondent engaged in surveillance violative of Sec. 8(a)(1) of the Act.
The evidence showed that Respondent’s Director of Security Scala
informed off-duty employees in a mall corridor outside a restaurant that
solicitation was not allowed in the facility. There is no allegation that
this prohibition was unlawful. Scala then watched through a restaurant
window (without listening) for 4 or 5 minutes while the employees met
and dined with union organizers. Scala testified that he did so because
he “wanted to make sure they wouldn’t come out into the common area
of the mall and congregate in the common area of the mall.” Judge
Carson found this explanation incredible, reasoning that Scala could
have accomplished the claimed purpose by positioning himself where
he could simply observe the restaurant door, rather than watching the
employee and organizer group inside the restaurant. Judge Carson was
not the presiding judge at the hearing, and his credibility assessment of
Scala’s testimony was based on the written record, not demeanor.
Accordingly, the judge was in no better position than I to make this
assessment. Whether or not Scala could have positioned himself dif-
ferently, I would not find his explanation incredible. I would further
find the evidence insufficient to prove that he engaged in actual surveil-
lance of union activity by standing where he did and observing the
employees inside for a brief time.
105, 113 (1956). In my colleagues’ analysis, the exist-
ence of a contractual employment relationship with the
property owner is of no significance. So long as an indi-
vidual is somebody’s employee, that person’s “regular”
presence at a worksite is sufficient alone to cloak the
individual with the same access rights as employees of
the owner of that worksite.
Second, the majority’s NYNY-based analysis defies the
Supreme Court’s mandate to accommodate Section 7
rights and the owner’s property rights “with as little de-
struction of one as is consistent with the maintenance of
the other.” Hudgens v. NLRB, 424 U.S. 507, 522 (1976).
As this case demonstrates, under the majority’s test, the
owner’s private property rights do not figure into the
equation at all; nor does the availability of nontrespasso-
ry alternative means of communication. If the contractor
employees work “regularly” on the property, there is no
case-specific balancing or accommodation of competing
rights. The contractor employees’ Section 7 interests
simply trump the property interests of the owner, and
access for handbilling or other Section 7 activity is man-
dated unless the property owner can carry the heavy bur-
den of proving that the activity significantly interferes
with his use of his own property. In essence, all the
property owner is left with under the majority’s test is the
limited management right to maintain “production or
discipline.”
Third, the majority’s ruling contravenes the very
guidelines under which the District of Columbia Circuit
reversed and remanded the Board’s first two NYNY deci-
sions. New York New York, LLC v. NLRB, 313 F.3d 585
(D.C. Cir. 2002) (reversing and remanding New York
New York Hotel & Casino, 334 NLRB 762 (2001), and
New York New York Hotel & Casino, 334 NLRB 772
(2001)). The court made clear that the Board’s reasoning
in Gayfers Department Store, 324 NLRB 1246 (1997),
which afforded contractor employees the same extensive,
full-access rights as the property owner’s employees, was
“lacking” and that the Board’s reliance on Gayfers2 in
NYNY failed to take “account of the principle reaffirmed
in Lechmere that the scope of Section 7 depends on one’s
status as an employee or nonemployee.” New York New
York, 313 F.3d at 588–590. The court’s remand instruc-
tions to the Board left no room for fabrication of a re-
vised test that simply dresses Gayfers in a shiny new

2 The judge’s ruling in this case, which the majority adopts, was
based on Gayfers. The D.C. Circuit also rejected the Board’s decision
in Southern Services v. NLRB, 300 NLRB 1154 (1990), enfd. 954 F.2d
700 (11th Cir. 1992). Southern Services was another case in which the
Board had applied the Republic Aviation test to contractor employees.
The NYNY Board purported to overrule the Gayfers and Southern Ser-
vices rationales. 356 NLRB 907, 913 fn. 27.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1892
frock. That is exactly what my colleagues did in NYNY,
and they repeat the error here.
In contrast, my NYNY dissent proposed an access test
for contractor employees that hews both to the D.C. Cir-
cuit’s remand opinion and to applicable Supreme Court
precedent. That test, a variant of the Babcock & Wilcox
test applicable to nonemployees, acknowledges the “crit-
ical distinction” between employees of the property
owner and those of a contractor, and more appropriately
balances the property interests and Section 7 rights at
stake. And, in contrast to the majority’s NYNY-based
ruling, my proposed test would give due weight to the
owner’s property rights and consider reasonable alterna-
tive means of communicating the contractor employees’
organizing message. Because the parties did not have the
opportunity to litigate this case under the test I propose, I
would remand the case for an appropriate hearing.
In short, my colleagues, while paying lip service to
controlling precedent and the D.C. Circuit’s rebuke on
review in NYNY, adhere to the essence of the discredited
position articulated by the Board in Gayfers. Because
their decision flouts applicable law and fails to conduct
the careful balancing of property and Section 7 rights
directed in the NYNY remand, I respectfully dissent.
II. FACTUAL BACKGROUND
Briefly, this case arises out of an SEIU Local 32B–32J
(the Union) effort during the summer of 1999 to organize
the cleaning and maintenance workers at shopping malls
on Long Island, New York. The Respondent Simon De-
Bartolo Group (Simon) owned two of those malls—the
Roosevelt Field Mall and the Smith Haven Mall. Control
Building Services, Inc. (Control) had a contract with Si-
mon to do cleaning and maintenance at the malls. Con-
trol employed the workers who did those tasks. They
had no employment relationship of any kind with the
Respondent. The stipulated record reflects only that the
Control employees worked “regularly” at the two malls;
there is no evidence of how often they reported to the
malls, how long their shifts were, whether they worked
“exclusively” at a particular mall, whether they were
assigned to specific locations within the malls, whether
Control had an office or other fixed facility at either mall,
or whether the employees reported initially to some other
location. Control apparently had no leasehold or other
form of tenancy at the malls.
On three occasions—in August, September, and Octo-
ber 1999—off-duty Control employees distributed leaf-
lets or flyers to patrons at one of the malls where they
“regularly” worked. In each instance, the distribution
was done on Simon’s private property. Also in each in-
stance, the Respondent directed the off-duty Control em-
ployees to stop distributing the leaflets or flyers. In two
instances, the Respondent threatened to call the police if
the off-duty Control employees did not stop the distribu-
tion.
III. ANALYSIS
My substantive objections to the test applied by my
colleagues, summarized above, are set forth in more de-
tail in my NYNY dissent. When applied to a different set
of facts, the flaws in that test are magnified.
For instance, as noted in that dissent, Board cases on
access rights had, prior to NYNY, properly required that
contractor employees work “regularly” and “exclusively”
on a property owner’s premises in order to have greater
Section 7 access rights to the property. See, e.g., Postal
Service, 339 NLRB 1175, 1177–1178 (2003). Even
though the restaurant employees in NYNY did work regu-
larly and exclusively on the hotel/casino operator’s prop-
erty, the majority dropped the exclusivity requirement
from its test. This case highlights the consequences of
that change. We know virtually nothing about the extent
of time Control’s employees spend at the Respondent’s
properties, as opposed to other facilities, or whether there
is a home base, owned by Control, to which employees
report, and at which they could engage in organizational
activities without impinging upon the property rights of
third parties. Simply put, the “regularly work” factor
alone is far too imprecise and ambiguous to serve as a
reliable indicator of where to draw the line on access
rights. Absent any indication from the majority as to
whether there is some minimum degree of regular pres-
ence (once a week, once a month, once a quarter?), the
welcome mat is apparently out for organizational activity
by persons who may have only a fleeting working rela-
tionship with the property owner’s site.
The NYNY majority also seemed to place great stock in
the fact that the hotel/casino property owner there exert-
ed significant contractual control over its restaurant sub-
contractor’s employees. 356 NLRB 907, 917–918. This
case shows the ephemeral nature of that factor. There is
no evidence that Control maintains company policies or
rules requiring its employees to adhere to mall property
rules. There also is no evidence that such rules as may
exist are incorporated or otherwise referred to in its ser-
vice contract with Control. Indeed, the judge found that
mall property rules did not apply to Control’s off-duty
employees or others who worked on the mall premises.
The majority’s opinion is silent on the point, demonstrat-
ing that a property owner’s regulatory or contractual per-
sonnel control is not really a meaningful factor at all in
the majority’s analysis. If anything, the absence of evi-
dence that Simon had any effective means of regulating
off-duty Control employees’ conduct on mall property—
short of excluding them altogether—should be a factor
SIMON DEBARTOLO GROUP 1893
that weighs against giving Control employees the same
access rights as Simon employees.
This case also illustrates the fallacy of defining the ma-
jority’s NYNY standard as a “balancing test.” As I ar-
gued in NYNY, the only appropriate way to achieve a
truly equitable balancing of interests is to use a variant of
the Babcock & Wilcox test applicable to nonemployees.
In particular, such a test would ensure that, as the Su-
preme Court and D.C. Circuit cases require, the lack of
an employment relationship between the Control em-
ployees and Simon is considered. Such an even-handed
test also would ensure that an owner’s property interests
(as opposed to just its management interests) receive
weight. Further, in sharp contrast to the majority’s ap-
proach, such a test would assess whether there are rea-
sonable nontrespassory alternative means for communi-
cating the Control employees’ organizing message to the
employees’ intended audience.
This is not to suggest that Control’s off-duty employ-
ees’ statutory rights of access to private property should
be restricted to the limited circumstances in which
nonemployee union organizers have such rights under
Lechmere. I recognize that Control’s employees are not
complete “strangers” to Simon’s property and that they
assert direct, rather than derivative, organizational rights.
These factors are entitled to some weight in assessing the
employees’ access rights, but they should not invariably
outweigh the property rights of the Respondent and its
many tenants. And again, the “accommodation between
the two must be obtained with as little destruction of one
as is consistent with the maintenance of the other.”
Hudgens, 424 U.S. at 522.
As my NYNY dissent indicated, I disagree that contrac-
tor employees’ organizing rights are as strong, or strong-
er, if their intended audience are members of the public
patronizing the property owner’s premises rather than
other contractor employees whom they are trying to or-
ganize. 356 NLRB 907, 922. At least in NYNY, the ap-
peal to the public for support of the organizational cam-
paign targeted persons who were, or reasonably could be,
direct consumers of the restaurant contractor’s services.
In this case, Simon and its tenants were direct consumers
of Control’s services. The Control off-duty employees
were appealing to members of the public who were, at
best, only secondarily potential consumers of those ser-
vices. Thus, the employees’ relationship to this target
audience was even more attenuated than in NYNY, and
the need for access to Simon’s property to reach this au-
dience was correspondingly entitled to even less weight.
In NYNY, I stated that I would put the burden on the
property owner to show that there were reasonable alter-
native means for communicating the contractor employ-
ees’ organizing message. 356 NLRB 907, 924. It may
be that the absence of nontrespassory alternatives would
require the Respondent’s property interests to yield to
some extent, perhaps requiring it to permit handbilling in
or at the perimeter of mall parking lots. There is no evi-
dence in the record on this point. That is not the Re-
spondent’s fault. The case was tried using the Gayfers
test, which, like the NYNY test, gives no consideration to
the existence of reasonable alternative means of commu-
nication. For that very reason, it cannot produce a fair
and refined balancing of the interests of Control employ-
ees and the Respondent. It is impossible to know how
much, if at all, the Respondent’s property rights should
yield to accommodate the Section 7 rights of Control’s
employees. Consequently, I would remand this case for
further hearing on the issue of alternative means.
IV. CONCLUSION
My colleagues’ decision lays bare and magnifies the
fundamental flaws in the analytical framework they fash-
ioned in NYNY, and proves that their test is simply Gay-
fers in disguise. I continue to reject their analysis as in-
consistent with precedent. I also adhere to the view that
the appropriate balance can be struck by application of
the test I proposed in NYNY, which is premised on deci-
sional authority dealing with the access rights of individ-
uals who are not employees of the property owner. As
Hudgens requires, this test would achieve a true balanc-
ing based on the facts of specific cases. 424 U.S. at 522.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT engage in surveillance of employees en-
gaging in the union activity of meeting with representa-
tives of Local 32B–32J, Service Employees International
Union or of any other union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1894
WE WILL NOT prohibit employees on their nonworking
time from engaging in solicitation and leafleting in non-
working areas.
WE WILL NOT threaten off-duty employees with inter-
vention by law enforcement authorities if they disobey
our unlawful prohibition of their protected leafleting ac-
tivity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.

SIMON DEBARTOLO GROUP A/W M. S.
MANAGEMENT ASSOCIATES, INC.

Haydee Rosario, Esq., for the General Counsel.
Douglas J. Heckler, Esq., for the Respondent.
Rebecca A. Schleifer and Larry Engelstein, Esqs., for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Brooklyn, New York, on June 20, 2000, before
Administrative Law Judge Howard Edelman.1 The charge was
filed on December 23, and the complaint issued on March 24,
2000. The complaint alleges violations of Section 8(a)(1) of
the National Labor Relations Act (the Act) affecting employees
of a contractor at two of the Respondent’s malls. The Re-
spondent’s answer denies any violation of the Act.
Judge Edelman issued his decision on December 1, 2000.
On May 31, 2006, the Board remanded this case to the chief
administrative law judge for reassignment to a different admin-
istrative law judge with the instruction to “review the record
and issue a reasoned decision.” Simon DeBartelo Group, 347
NLRB 282 (2006). On June 8, 2006, Chief Administrative Law
Judge Robert A. Giannasi reassigned this case to me pursuant
to the Board’s remand. On June 13, 2006, the Charging Party
filed with the Board a Motion for Reconsideration of its remand
order. On June 30, 2006, the Board denied that motion. I find
that the Respondent did violate the Act substantially as alleged
in the complaint.
On the entire record made before Judge Edelman,2 and after
considering the briefs filed by the General Counsel, the Re-
spondent, and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Simon DeBartelo Group a/w M. S. Man-
agement Associates, Inc., Simon, is a Delaware corporation
engaged in the ownership and management of shopping malls

1 All dates are in the year 1999, unless otherwise indicated.
2 The transcript index does not reflect receipt of GC Exh. 2, a stipu-
lation, into the record. At p. 25, after counsel for the Respondent stated
that he concurred with the stipulation, Judge Edelman stated, “I’m
going to admit the stipulation to the record.” The reporter marked GC
Exh. 2 as “received.”
including Roosevelt Field Mall, Garden City, New York, and
Smith Haven Mall, Lake Grove, New York. Simon annually
derives gross rent revenues in excess of $100,000 from stores
located in the malls including Federated Stores, Inc., from
which Simon derived of in excess of $25,000. Federated Stores,
Inc. is engaged in the retail sale of goods at Smith Haven Mall
and Roosevelt Field Mall, and it annually purchases and re-
ceives at those facilities goods valued in excess of $50,000
directly from enterprises located outside the State of New York.
Simon admits, and I find and conclude, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Control Services, Inc., Control, is a corporation that provides
building maintenance services pursuant to a contract with Si-
mon at various locations, including the Roosevelt Field Mall
and the Smith Haven Mall.
Simon admits, and I find and conclude, that Local 32B–32J,
Service Employees International Union, the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
In July 1999, the Union began organizational activities
among the maintenance employees of Control at various malls
located in the area of Long Island, New York. The complaint
allegations relate to events that occurred on August 19 and
September 24, at the Roosevelt Field Mall, and on August 28
and October 23, at the Smith Haven Mall. Almost all of the
facts relevant to the alleged violations of the Act are stipulated
and set out in General Counsel’s Exhibit 2, hereinafter cited as
Stipulation.
B. Facts
1. Events at Roosevelt Field Mall
The complaint alleges that, on August 19, the Respondent,
by Security Director Angelo Scala at the Roosevelt Field Mall,
informed employees of Control that union solicitation was not
permitted at the facility, and that he engaged in surveillance of
Control employees while they were engaged in union activity.
The complaint further alleges that, on September 24, the Re-
spondent directed employees of Control to stop distributing
union leaflets to the public and to leave the Roosevelt Field
Mall area and threatened them that it would summon the police
if they did not do so.
On August 19, a group of between five and eight off-duty
Control employees, who when on duty performed maintenance
at the Roosevelt Field Mall, met with organizers for the Union
on the first floor of the mall in the mall corridor adjacent to a
Sbarro’s restaurant. Angelo Scala, Security Director for Simon
at Roosevelt Field Mall, approached the group. Although Scala
testified that he cautioned the group against “congregating,” the
parties stipulated that “the Simon agent approached the em-
ployees and informed them that soliciting was not allowed in
the facility.” [Stipulation, par. 12.] The group then entered
Sbarro’s restaurant and ordered pizza. The parties stipulated
that “Simon representatives observed the workers through the
glass windows of the restaurant which separated the restaurant
SIMON DEBARTOLO GROUP 1895
from the mall corridor. The workers observed the Simon repre-
sentative looking at them.” [Stipulation, par. 12.] The stipula-
tion does not specify for how long the Simon representative
observed the employees and union representatives.
Although the briefs of the General Counsel and the Charging
Party state that the observation occurred for 15 minutes, there is
no probative evidence to support that argument. Union Repre-
sentative Kevin Stavris testified that “representatives” stood
outside the restaurant and observed for “about 15 minutes.” He
did not identify Scala nor did he identify the “representatives”
as Simon representatives.
Scala, an admitted supervisor for Simon, admits that he re-
mained for “four or five minutes.” He testified, “I guess I
wanted to make sure they wouldn’t come out into the common
area of the mall, and congregate in the common area of the
mall.” Scala, who normally makes his reports to Mall Manager
Joseph Silia, reported “who was there, that they were union,
their representative was there and some of the employees of
Control.” Scala denied reporting names. He did not recall to
whom he made his report.
On September 24, on the sidewalk outside the Grand En-
trance to the Roosevelt Field Mall, two off-duty Control em-
ployees who worked at the Roosevelt Field Mall were handing
out leaflets relating to the Union at 3:30 p.m. The parties stipu-
lated that a Simon agent, presumably Security Director Scala,
observed the workers and informed them “that they were not
allowed to hand out flyers on mall property and that if they
continued to do so they would be arrested for trespass.” [Stipu-
lation, par. 9.]
2. Events at Smith Haven Mall
The complaint alleges that, on August 28, the Respondent,
by Security Director Michael Trombino at the Smith Haven
Mall, directed employees of Control to cease distributing union
leaflets to the public and to leave its parking lots and sum-
moned Suffolk County Police to remove the employees of Con-
trol from its parking lot. The complaint alleges that, on that
same date, Mall Manager Dennis Hejen asked the Suffolk
County Police to arrest the Control employees who were dis-
tributing union leaflets to the public. The complaint further
alleges that, on October 23, Trombino directed employees of
Control to cease distributing union leaflets to the public and
threatened to call the police and report the employees of Con-
trol if they continued to distribute union leaflets to the public.
On August 28, shortly after 11:15 a.m., a group of between
six and eight off-duty Control employees, who when on duty
performed maintenance at the Smith Haven Mall, together with
five representatives of the Union, prepared to distribute leaflets
on the outdoor sidewalk and parking lot near an entrance to the
Mall. Security Director Michael Trombino approached the
group. The parties stipulated that “[a]gents of Simon respond-
ed by directing Control employees to stop distributing . . . to the
public and to leave the sidewalk and the parking lot.” [Stipula-
tion, par. 7.] Union Representative Kevin Stavris recalled that
Trombino informed the employees, “This is not going on here
today.”
Trombino informed Stavris that law enforcement officers
were present, although, at that point, none were visible. Stavris
informed Trombino that it was the right of the employees “to
leaflet in front of the mall.” Shortly thereafter several police
cars, between four and six, drove up. Stavris spoke with the
sergeant in charge. As he was doing so, Mall Manager Dennis
Hejen approached the group. The sergeant informed the group,
which included the off-duty Control employees, that they could
not leaflet on mall property, that it was private property. Stav-
ris overheard Hejen tell the police officers “to arrest us if we
stay on mall property.”
Trombino admitted calling the police, saying that he did so
after hearing that the Union planned a demonstration, the nature
of which he was unaware. He went to the group in the parking
lot after being informed that the group was gathering and that
they had flyers. He testified that “we [Simon] don’t allow solic-
iting or hand-billing on the property.” Although Trombino
denied making any statement regarding arrests, he did not deny
that Hejen informed the police officers that they should arrest
any members of the group, which included the off-duty Control
employees, if they stayed on mall property.
On October 23, off-duty Control employees, accompanied by
representatives of the Union, again went to the Smith Haven
Mall and began distributing union leaflets to the public on the
sidewalk outside of the main entrance to the mall. The parties
stipulated that “Simon directed these Control employees to stop
distributing union leaflets to the public and threatened to call
the police if they continued to distribute leaflets to the public.”
[Stipulation, par. 10.]
Paragraph 10 of the Stipulation also states: “The parties do
not stipulate that the Union’s conduct was ‘unruly.’” There is
no evidence that any conduct was unruly. Security Director
Trombino recalled that, prior to the employees and union repre-
sentatives leaving, one individual stood on a bench and then
“got down . . . on his stomach . . . trying to emulate a cock-
roach.” The significance, if there be any, to the cockroach
impersonation, relates to the claimed fear of the Control
maintenance employees that they might be disciplined for un-
sanitary conditions at the mall, conditions that were beyond
their control. The foregoing concern was expressed in a letter
delivered to James Lundgren, one of Simon’s Mall Managers at
Smith Haven Mall, on October 20, in which the employees set
out various deficiencies for which they had no responsibility
including broken urinals and a broken toilet, leaky ceilings, and
“[r]oaches in the food court area.” The leaflet the employees
were distributing on October 23, noted the cockroach problem,
explained that the employees were seeking representation by
the Union, and did not want “to lose their jobs because of con-
sumer dissatisfaction.”
Security Director Trombino recalled that the cockroach im-
personation lasted a total of 20 seconds. A videotape made by
the Union shows the leafleting during portions of the period
that it was occurring from about 12:42 p.m. until about 1:12
p.m., when the employees and union representatives complied
with the request to leave, accompanied as it was by the threat to
call law enforcement officers to which the parties, as recited
above, stipulated. Although the General Counsel, in her brief,
notes that the foregoing event was not on the videotape, there
are several gaps in the tape, including a gap of over 90 seconds
between 1:06:01 and 1:07:35 p.m. in which the foregoing 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1896
second incident could have occurred. I do not find that the
foregoing 20 second incident of street theater rendered the
peaceful leafleting unruly. Trombino did not testify that the
foregoing actions by one individual had any bearing upon the
request that the leafleting cease.
The General Counsel and the Charging Party, in their briefs,
argue that the leaflet distributed at the Smith Haven Mall on
October 23, was neither false nor malicious and that it was
protected. I need make no determination in that regard. Em-
ployees have a protected right, during nonworking time in
nonworking areas, to distribute literature in order “to solicit
sympathy, if not support, from the general public, customers,
supervisors, or members of other labor organizations.” NCR
Corp., 313 NLRB 574, 576 (1993). The Respondent did not
assert to the employees or at the hearing that the contents of the
leaflet related in any way to the direction that the employees
cease leafleting. Even if that issue had been raised and decided
adversely to the General Counsel, my recommended order
would be unaffected because no issue was raised with regard to
the contents of the leaflets that the Respondent directed not be
distributed on August 28, at the Smith Haven Mall or on Sep-
tember at the Roosevelt Field Mall.
An incident report prepared by Simon, Exhibit 7 attached to
the Stipulation, states that Trombino asked the employees to
leave, that they did not comply, that SCPD, presumably the
Suffolk County Police Department, was notified, but that by the
time the police arrived the employees had ceased leafleting.
The report makes no comment regarding the content of the
leaflets or any “unruly” conduct by any of the individuals en-
gaged in the leafleting.
B. Analysis and Concluding findings
1. The surveillance allegation (Roosevelt Field Mall)
On August 19, Security Director Angelo Scala informed the
union representatives and off-duty Control employees that they
would not be permitted to solicit in the mall corridor. The
group departed from the mall corridor, entered Sbarro’s restau-
rant, and ordered pizza. Thus, they complied with Scala’s re-
quest not to solicit and left the mall corridor. Scala thereafter
remained for 4 or 5 minutes observing the “workers through the
glass windows of the restaurant . . . [and] [t]he workers ob-
served the Simon representative looking at them.” Scala’s pur-
ported justification for his action, “I guess I wanted to make
sure they wouldn’t come out into the common area of the
mall,” is incredible. Watching the group through a window as
they sat together for the time to which he admitted gave Scala
the opportunity to observe the interaction of the employees with
the union representatives. He could see whether any docu-
ments were being exchanged. See Farm Fresh, Inc., 301
NLRB 907 (1991). Scala made a report of what he observed.
He did not report cautioning a group against soliciting. He
reported “who was there, that they were union, their representa-
tive was there and some of the employees of Control.” If, as he
claimed, Scala was seeking to assure that the employees did not
return to the common area of the mall, Scala could have posi-
tioned himself so that he could observe the door of the restau-
rant. Observing the door of the restaurant would establish
whether the group was coming back out into the common area.
There was no justification for observing the interaction of the
employees with the union representatives through the window
of the restaurant.
In Dayton Hudson Corp., 316 NLRB 85, 86 (1995), employ-
ees who were in the company of union representatives left a
department store and entered a nearby restaurant. Managers
followed and also entered the restaurant. The Board held that
there was “no legitimacy to the Respondent’s surveillance”
once the employees left the department store. In this case, the
employees left the corridor common area and entered the res-
taurant. Although Scala did not enter the restaurant, just as in
Dayton Hudson, management’s observation of “employees who
chose to associate with union organizers on their free time . . .
revealed the Respondent’s intention to observe at close range
the Section 7 activities” of those employees. In this case, as in
Dayton Hudson, “[t]his intrusion on their statutory rights con-
stitutes unlawful surveillance and violates Section 8(a)(1) of the
Act.” Ibid. I find that the Respondent engaged in surveillance
as alleged in the complaint.
2. The interference with solicitation and
distribution allegations
The stipulations of the parties and testimony establish that, at
the Roosevelt Field Mall on August 19, the Respondent di-
rected off-duty employees of Control to cease soliciting and on
September 24, directed off-duty employees of Control to cease
leafleting in nonwork areas and threatened that, if they contin-
ued to do so, law enforcement officers would be summoned.
The stipulations and testimony further establish that, at the
Smith Haven Mall on August 28 and October 23, the Respond-
ent directed off-duty employees of Control to cease leafleting in
nonwork areas and threatened that, if they continued to do so,
that law enforcement officers would be summoned. On August
28, Mall Manager Dennis Hejen requested law enforcement
officers to arrest Control employees and union representatives
who did not comply with the direction not to leaflet.
The Respondent argues that this case is controlled by
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and citing Oak-
land Mall, 316 NLRB 1160 (1995), points out that the employ-
ees of Control were not its employees, thus it had the right un-
der Lechmere to bar these nonemployees from its property.
Oakland Mall is inapposite. In that case, the Board specifically
held the individuals engaged in handbilling, who were laid-off
employees, were “nonemployees” because “they were neither
employees of any of the employers whose property interests are
at issue in this case nor employees with any right to enter to
property in the course of their employment under a subcon-
tract.” Id. at 1163 fn. 12.
The General Counsel contends that this case is controlled by
Gayfers Department Store, 324 NLRB 1246, 1250 (1997), in
which the Board, citing Southern Services, 300 NLRB 1154
(1990), enfd. 954 F.2d 700 (11th Cir. 1992), held that employ-
ees of a cleaning contractor who “regularly and exclusively
work on the premises of an employer other that their own . . .
are not strangers to the property” and that they had the right to
engage in Section 7 activity during nonworking times in non-
work areas of the Respondent’s property.
SIMON DEBARTOLO GROUP 1897
The complaint herein is clearly and carefully drawn. The on-
ly violations alleged relate to employees, not the nonemployee
union representatives who were present at each of the alleged
incidents.
When the rights being asserted by employees are rights pro-
tected by Section 7 of the Act, it is immaterial that the employ-
er seeking to deny those rights is not the employer of the af-
fected employees. In Fabric Services, 190 NLRB 540 (1971),
in which the employer argued that it could not, as a matter of
law, be found to have violated the Act because it was not the
employer of the employee who it had required to remove union
insignia as a condition of performing services in its plant, the
Board affirmed the decision of the administrative law judge
which stated:

. . . T]he specific language of the Act clearly manifests a leg-
islative purpose to extend the statutory protection of Section
8(a)(1) beyond the immediate employer-employee relation-
ship. Thus Section 8(a)(1) makes it “an unfair labor practice
for an employer [. . .] to interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed in Section 7.” And
Section 2(3) declares, “The term employee shall include any
employee, and shall not be limited to the employees of a par-
ticular employer, unless the Act explicitly states otherwise.”
[Id at 541, 542.]

The Board distinguishes between the rights of employees
and nonemployees vis-a-vis an employer’s property rights. The
Supreme Court has recognized the substantive difference of
activity by employees “already rightfully on the employer’s
property, since the employer’s management interests rather
than his property interests were there involved.” Hudgens v.
NLRB, 424 U.S. 507, 522 fn. 10 (1976), citing Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793 (1945). Thus, when the Sec-
tion 7 rights of employees “rightfully on the employer’s proper-
ty” are involved, the employer’s managerial rights, not the em-
ployer’s property rights, are the focus of the inquiry.
In International Business Machines Corp., 333 NLRB 215
(2001), a case involving the respondent’s prohibition of the
display in its parking lot of a large hand painted sign soliciting
support of a union, the Board affirmed the administrative law
judge who pointed out that:

In an unbroken line of decisions, this Board and the
Supreme Court have stated that where an employee exer-
cises his Section 7 rights while legally on an employer’s
property pursuant to the employment relationship, the bal-
ance to be struck is not vis-a-vis the employer’s property
rights, but only vis-a-vis the employer’s managerial rights.
The difference is “one of substance,” since in the latter sit-
uation Respondent’s managerial rights prevail only where
it can show that the restriction is necessary to maintain
production or discipline or otherwise prevent the disrup-
tion of Respondent’s operations. . . . [Id at 219, 220.]

In the instant case, as already noted, the complaint is careful-
ly drawn and relates only to employees, albeit employees of
Control rather than Simon. There is no evidence of any disrup-
tion of the Respondent’s operations. I find, consistent with the
holding of the Board in Gayfers Department Store, supra, and
as alleged in the complaint, that the Respondent violated Sec-
tion 8(a)(1) of the Act by prohibiting the off-duty Control em-
ployees from soliciting during their nonworking time on Au-
gust 19, at the Roosevelt Field Mall, from distributing union
leaflets on nonworking time in nonworking areas at the Roose-
velt Field Mall on September 24, and from distributing union
leaflets on nonworking time in nonworking areas at the Smith
Haven Mall on August 28 and October 23. I further find that
the Respondent violated Section 8(a)(1) of the Act on Septem-
ber 24, at the Roosevelt Field Mall and on August 28 and Octo-
ber 23, at Smith Haven Mall by threatening employees with
intervention by law enforcement officers if they engaged in
leafleting in contravention of its unlawful directive to cease
doing so.
3. The solicitation/distribution rule
The General Counsel and the Charging Party argue in their
briefs that a rule prohibiting distribution and solicitation at the
malls is overly broad and violates the Act. The Stipulation,
paragraph 8, recites that “Simon maintains posted rules con-
cerning solicitation and distribution at these malls” and main-
tains “an access permit policy for individuals wishing to solicit
or distribute at the malls.” Paragraph 8 further recites that “it is
not contended that Simon selectively enforced these rules.”
The rules in question, attached to the stipulation, are headed,
“Welcome to Roosevelt Field” and “Welcome to Smith Haven
Mall, respectively. They then state: “In order to assist in our
effort to provide a safe, secure and pleasant shopping environ-
ment, we ask for you cooperation with the following.” There-
after eight numbered “rules” are stated including “1. Appropri-
ate non-offensive attire, including shirts and shoes must be
worn,” “2. Conduct that is disorderly, disruptive or which en-
danger others is prohibited. Such conduct may include running,
use of skateboards, rollerblades, bicycles, radios, etc.” and “4.
Picketing, distributing handbills, soliciting and petitioning re-
quire the prior written consent of mall management.”
There is no evidence that the foregoing rules were cited by
representatives of Simon when it informed Control’s off-duty
employees that they could not solicit or distribute in nonwork
areas. There is no complaint allegation addressing any posted
or unposted rules. The complaint states that employees were
“informed” that solicitation was not permitted and “directed” to
cease distributing union leaflets. There is no allegation of en-
forcement of an unlawful rule.
Despite the foregoing, both the General Counsel and the
Charging Party argue in their briefs that rule number 4 is overly
broad and violates the Act. No amendment of the complaint
was offered at hearing or in the General Counsel’s brief. The
rules are addressed to the customers who are being served by
employees and for whom Simon seeks “to provide a safe, se-
cure, and pleasant shopping environment.” Customers, alt-
hough invitees, are strangers to the property. The Control em-
ployees who “regularly and exclusively work on the premises
. . . are not strangers to the property.” That distinction is the
controlling factor in this decision. The rules are addressed to
customers. The record does not establish that the Respondent
relied upon the foregoing rules when directing the off-duty
Control employees not to solicit or distribute. I have found that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1898
the foregoing conduct violated the Act. The Respondent was
not, pursuant to the allegations of the complaint or any amend-
ment thereto, placed on notice that the rule addressed to cus-
tomers was in issue. This matter was not fully litigated. I shall
make no finding regarding the foregoing rule.
CONCLUSIONS OF LAW
1. By engaging in surveillance of off-duty employees engag-
ing in the union activity of meeting with representatives of the
Union, 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. By prohibiting employees on their nonworking time from
engaging in solicitation and leafleting in nonworking areas,
activities protected by Section 7 of the Act, 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.
3. By threatening off-duty employees with intervention by
law enforcement authorities if they disobeyed the Respondent’s
unlawful prohibition of their protected solicitation and leaflet-
ing activity, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Simon DeBartelo Group a/w M. S. Man-
agement Associates, Inc., Garden City and Lake Grove, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from

3 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.
(a) Engaging in surveillance of off-duty employees engaging
in the union activity of meeting with representatives of Local
32B–32J, Service Employees International Union.
(b) Prohibiting employees on their nonworking time from
engaging in solicitation and leafleting in nonworking areas.
(c) Threatening off-duty employees with intervention by law
enforcement authorities if they disobeyed the Respondent’s
unlawful prohibition of their protected leafleting activity.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
Roosevelt Field Mall, Garden City, New York, and Smith Ha-
ven Mall, Lake Grove, New York, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 employees employed by Con-
trol Services, Inc., at any time since August 19, 1999.
(b) 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 has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

4 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.”