Winco Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 289 (N.L.R.B. 2001)

WINCO FOODS, INC. 289
Waremart Foods d/b/a Winco Foods, Inc. and Local
588, United Food and Commercial Workers Un­
ion. Case 20–CA–29332
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On September 25, 2000, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed a brief in opposition, and the Re­
spondent filed a reply brief.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
We agree with the judge, for the reasons set forth in
his decision, that the Respondent violated Section 8(a)(1)
of the Act by prohibiting nonemployee union representa­
tives from engaging in consumer handbilling at the Re­
spondent’s Chico, California store. Critical to that con­
clusion was the judge’s finding that, under California
property law, the Respondent did not have a right to ex­
clude union representatives from its property. Sears,
Roebuck & Co. v. San Diego District Council of Carpen­
ters, 25 Cal. 3d 317 (1979). The Respondent contends,
however, that California law itself is invalid because it
(1) is preempted by the Act, (2) constitutes a denial of
equal protection of the laws, in violation of the Four­
teenth Amendment, and (3) constitutes a taking of prop­
erty without just compensation, in violation of the Fifth
1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
The Board has taken administrative notice of recent decisions of the
Supreme Court of California in Golden Gateway Center v. Golden
Gateway Tenant’s Assn., 26 Cal. App. 4th 1013 (2001), and the Cali­
fornia Court of Appeal, Third District, in Young v. Raleys, 89 Cal. App.
4th 476 (2001), and Waremart, Inc., v. Progressive Campaigns, Inc., 85
Cal. App. 4th 679 (2000), pursuant to the Respondent’s request. We
find that they are inapposite to this case, as they address the right to
engage in political speech pursuant to the free-speech provision of the
California constitution. These cases do not involve union activity cog­
nizable under the National Labor Relations Act, 29 U.S.C. Sec. 151–
169. We agree with the judge that California cases arising in the con-
text of such political expressive activities have “little if any relevance
to cases arising in the context of labor-based expressive activities.”
Accordingly, we deny the Respondent’s request that the Board hold in
abeyance any action on the instant case pending review by the Califor­
nia Supreme Court of the lower court decisions in Young v. Raleys and
Waremart, Inc., v. Progressive Campaigns, Inc., supra.
2 There were no exceptions to the judge’s recommended dismissal of
the complaint’s allegations involving union activity at the Respondent’s
Redding store.
Amendment. We reject these arguments for the reasons
set forth below.
The Respondent asserts that the ability to exclude non-
union representatives from its property is the kind of
economic weapon that Congress intended to be available
to employers and thus is not subject to regulation by the
States. Accordingly, the Respondent contends that the
State’s attempt to deprive it of that right is preempted
under Machinists v. Wisconsin Employment Relations
Commission, 427 U.S. 132 (1976).3 We reject that con­
tention. As the judge noted, the Supreme Court has spe­
cifically stated that “The right of employers to exclude
union organizers from their private property emanates
from State common law, and while this right is not su­
perseded by the NLRA, nothing in the NLRA expressly
protects it.” Thunder Basin Coal Co. v. Reich, 510 U.S.
200, 217 fn. 21 (1994). That statement defeats the Re­
spondent’s contention that Machinists, in effect, gives
employers the right to exclude nonemployee union repre­
sentatives regardless of State property and trespass law.
The Respondent also contends that California law vio­
lates the equal protection clause of the Fourteenth
Amendment by giving unions, but not other organiza­
tions, access to employers’ private property. At the out-
set, we believe that there is a serious question whether
the Respondent has standing to raise an equal protection
argument, presumably on behalf of groups that do not
enjoy the access privilege under State law. But, even
assuming that the Respondent could establish standing, it
has not established its equal protection claim. “When
interpreting State law, we are bound by the decisions of a
State’s highest court.” NLRB v. Calkins, 187 F.3d at
1088. The Respondent has cited to no California author­
ity sustaining an equal protection claim against this Sate
property law, and we decline the Respondent’s invitation
to independently evaluate the constitutionality of the
State law.
Essentially for the same reason, we reject the Respon­
dent’s Fifth Amendment “taking” argument. In any
event, the Respondent has demonstrated no “taking” of
its property. Cf., Pruneyard Shopping Center v. Robins,
447 U.S. 74, 83–84 (1980) (rejecting “taking” argument).
In fact, the Respondent has not even alleged that the
value of its investment in the Chico store has been dimin­
ished as a result of California’s policy of affording ac­
cess to unions.
3 The Respondent also argues that the California property law is pre­
empted by Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and NLRB v.
Babcock & Wilcox Co ., 351 U.S. 105 (1956). For the reasons fully
discussed by the judge, we reject this argument. See also NLRB v. Cal­
kins, 187 F.3d 1080 (9th Cir. 1999), cert. denied 529 U.S. 1098 (2000),
which squarely rejects this argument.
337 NLRB No. 41
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
orders that the Respondent, Waremart Foods d/b/a Winco
Foods, Inc., Chico, California, its officers, agents, suc­
cessors, and assigns, shall take the action set forth in the
Order.
William A. Baudler, Atty., for the General Counsel.

Mark Ross and Christopher J. Pirrone, Attys. (Seyfarth, Shaw,

Fairweather & Geraldson), of San Francisco, California,
for the Respondent.
Timothy Sears, Atty. (Davis, Cowell & Bowe), of San Fran­
cisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. The ulti­
mate issue here is whether the owner of a warehouse supermar­
ket chain violated Section 8(a)(1) by prohibiting nonemployee
union agents from peacefully distributing consumer boycott
handbills on the premises of one of its California supermarkets.
Based on a charge filed by Local 588, United Food and
Commercial Workers Union (Union or Local 588), on Septem­
ber 30, 1999,1 the Regional Director for Region 20 of the Na­
tional Labor Relations Board (NLRB or Board), issued a com­
plaint on October 21, 1999. The complaint alleges that Ware-
mart Foods, d/b/a Winco Foods, Inc. (Winco or Respondent),
violated Section 8(a)(1) of the National Labor Relations Act
(Act), by prohibiting union agents and members from peace-
fully handbilling in front of its supermarket stores at Chico and
Redding, California, on April 14 and 15, respectively, and
threatening the handbillers with arrest if they refused to cease
handbilling. Respondent denies engaging in the unfair labor
practices alleged.
Upon the consideration of the entire record and the briefs
filed by the General Counsel and the Respondent, I have con­
cluded that Respondent engaged in the unfair labor practice
alleged as to the Chico facility but that the General Counsel
failed to prove Respondent engaged in an unfair labor practice
at the Redding facility on the basis of the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, an Idaho corporation, owns and operates
retail supermarkets in various California cities, including Chico
and Redding, the only stores involved here. During the 12-
month period ending April 30, Respondent derived gross reve­
nues in excess of $500,000 each from the operation of its Chico
and Redding stores. During the same period it purchased and
received at its Chico and Redding stores, goods valued in ex­
cess of $50,000 directly from outside the State of California.
Based on the foregoing, I find that Winco is an employer en-
1 All further dates refer to the 1999 calendar year, unless shown oth­
erwise.
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I further find that Local 588 is a labor or­
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Chico store, located at 2060 East 20th Street in that city,
stands alone adjacent to its parking lot on a 10.45-acre parcel.
Winco owns the property and is its sole user. The building
contains 79,324 square-foot of floor space, including 55,786
square feet of selling space open to the public for grocery shop-
ping during normal business hours. The parking lot has space
for nearly 500 automobiles. The property boundaries include
East 20th Street, Forest Avenue, and Springfield Drive. Cus­
tomers can only enter the store from the parking lot, rather than
any public sidewalk. The parking lot has two vehicle en-
trances, one off Forest Avenue and the other off 20th Street.
Winco maintains a 35-foot-wide “safety zone” between the
parking lot and the sidewalk abutting the store’s public en-
trances. The store averages about 27,500 register transactions
weekly albeit some of those transactions are by the same cus­
tomers.
The Redding store, located at 1345 Churn Creek Road, is
part of a larger shopping center with several strip stores and a
parking lot for use by customers of all stores. It too has a 35-
foot-wide “safety zone” painted on the pavement in front of the
store between the parking lot and the front sidewalk.
No evidence shows that Respondent has posted either of the
two properties involved for the purpose of restricting access for
limited purposes or to warn the public against engaging in par­
ticular activities while on the premises. The Chico store man­
ager provided a sworn statement (R. Exh. 5), in another pro­
ceeding admitting that Respondent had tolerated the sale of Girl
Scout cookies outside the entrances to that store for a short
period after it initially opened but otherwise Respondent has
strictly prohibited solicitors for political causes to engage in
activities at the store premises. Indeed, on two occasions, Re­
spondent has petitioned for and received injunctions from the
Butte County Superior Court prohibiting professional initiative
solicitors from soliciting Respondent’s customers to sign initia­
tive petitions as they entered and left the store. See Waremart,
Inc. v. Discovery Petition Management, Case No. 121900 (R.
Exhs. 6 and 7); Waremart, Inc. v. Voter Revolt, Case No.
119919 (R. Exh. 8). Whenever solicitors attempt to conduct
their activities on store property, Respondent’s managers ini­
tially attempt to identify and photograph the solicitors.
B. The April Handbilling
Six or seven Union agents and members peacefully distrib­
uted handbills to shoppers entering and leaving the aforede­
scribed Winco stores on April 14 and 15. Without question
Local 588 conducted the handbilling on Respondent’s private
property at both locations. Neither Respondent nor any entity
contracting to do business with the Respondent employed any
of the handbillers. The handbilling did not cause any employee
to cease work nor did it cause any disruption of deliveries and
pickups.
WINCO FOODS, INC. 291
Local 588 officials authorized this handbilling to encourage
consumers to shop at unionized stores rather than Winco be-
cause they believed that “the standards in the industry [were]
set by contracts negotiated through the United Food and Com­
mercial Workers in Northern California, and [Winco] ha[d] no
such contracts.” Darin Ferguson, the union agent who super-
vised these handbilling activities, also claimed that Winco did
not pay “their people what everyone else [was] making,” nor
did Winco “provide the benefits that everybody else re­
ceive[d].” At least one of the handbills (Local 588 Handbill,
below), contains a message consistent with Ferguson’s claim. It
states:
Local 588 Handbill
PLEASE DO NOT SHOP WINCO FOODS. The owner of
this market is not a friend of this community. Winco Foods
has set out to destroy the wages, hours, and working condi­
tions of food store workers in this area.
We request that you spend your hard-earned dollars with a
fair-minded food market that operates under a UFCW union
contract. Albertsons, Bel Air, Super Saver, Safeway, Raley’s,
Food Outlet, Rite Aid.
Thank you for your support. UFCW 588 NORTHERN
CALIFORNIA. [General Counsel Exhibit 10].
The handbillers distributed two other handbills at both loca­
tions that make similar appeals on behalf of an entity named
“Mothers Against Winco” (MAW). The MAW handbills make
no reference to Local 588 or to a dispute between Local 588
and Winco. Both Ferguson and Michael Gentry, a Local 588
agent in the Chico area, exhibited considerable reluctance to
provide information about MAW and its relationship to Local
588. Their posturing concerning MAW coupled with the fail­
ure of the Charging Party’s counsel—who also entered an ap­
pearance on behalf of MAW—to provide any explanation
whatsoever leads me to suspect that MAW amounts only to a
phantom created by Local 588 strategists to appeal to those
consumers who might be sympathetic to working mothers but
not to traditional union boycott pleas. No evidence shows that
MAW is a labor organization within the meaning of the Act.
Regardless, the MAW handbills contain the following mes­
sages:
MAW Handbill 1
(Front side) Mothers Against Winco Urge You To Shop at
Stores That Treat Their Workers Right! Endorsed for fair
treatment of working people. Albertsons, Lucky Stores,
Safeway, Rite Aid.2 The Coalition Against Exploitation of
Working Mothers. [GC Exh. 9.]
(Backside) You do the math 2 + 2 = Exploitation of Winco
Workers. A mother working for Winco makes less than
$10,000 a year.* These are poverty wages. *Based on an av­
erage of 25 hours per week at Winco’s starting wage. [GC
Exh. 8]
2 The address of each store was also listed on the handbill under-
neath the respective store name. They have been omitted here as a
matter of convenience.
MAW Handbill 2
M.A.W. says . . . STOP WINCO From: Lowering commu­
nity standards, Exploiting working mothers, Spying on citi­
zens, Funneling dollars out of the community, Misleading the
public. PLEASE DO NOT SHOP WINCO FOODS. The
Coalition Against Exploitation of Working Mothers. [GC
Exh. 7]3
The handbilling at Chico commenced at approximately 3
p.m. on April 14. Three union representatives (Ferguson, Gen­
try, and Terry Kilmire, a new Local 588 agent), and four volun­
teers from the Union’s membership in the Chico area conducted
it. Before the handbilling started, Ferguson provided instruc­
tions to the handbillers about the manner in which they were to
conduct themselves and the locations where they were to be
stationed. Approximately three or four handbilled immediately
in front of the stores and two or three positioned themselves at
the edge of the safety zone adjacent to the parking lot. No evi­
dence indicates that any of the handbillers blocked entrances,
impeded customers or were the least bit discourteous.
About 15 minutes after the handbilling began, Chico Store
Manager Richard Bryant came out of the store and spoke ini­
tially to Gentry. Seeing that, Ferguson approached Bryant and
Gentry and overheard Bryant tell Gentry that they “were tres­
passing” and if they did not leave he would call the police to
have the handbillers removed. The handbillers ignored that
request. Bryant then returned to the store and telephoned Fred
Andre, Chico’s city code enforcement officer. Based on Bry­
ant’s report, Andre opined that the Union had no lawful right to
handbill in front of the store and recommended Bryant call the
police if the handbilling continued. Bryant then went back to
Gentry’s location outside, informed Gentry of Andre’s advice,
and again requested, without success, that the handbilling
cease.
Bryant next called a Chico police dispatcher and requested
police assistance to stop “people on my property who were
handing out leaflets.” By about an hour after the handbilling
began, the first Chico police officer arrived at the premises. In
separate conversations, Bryant told the officer that he did not
“want them handing out the leaflets on our property” and Fer­
guson asserted to the officer that the Union had certain “privi­
leges” under the labor laws that permitted them to handbill.
For this reason, Ferguson suggested to the officer that he speak
first with his desk sergeant before taking further action. Noth­
ing further occurred until shortly after 5 p.m. when Chico po­
lice sergeant Fred Potter arrived at the scene. Although Potter
initially told Bryant that the union representatives had the right
to handbill, he later informed Ferguson that the Company in-
3 Based on store manager Richard Bryant’s testimony, Respondent
contends that Local 588 distributed only this handbill at Chico. I reject
that claim and credit Ferguson’s testimony on this point. At best, Bry­
ant’s testimony permits only the conclusion that, when he asked for a
handbill, he was provided with this particular handbill. Moreover, I
would be reluctant to credit Bryant otherwise in view of his apparent
conclusion that the handbill const ituted advertising for other businesses
in violation of a local Chico ordinance. Unlike the other two handbills
that specifically name other supermarkets, this handbill only asks
customers to refrain from shopping at the store they were about to
enter.
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sisted that he stop the handbilling and that “You guys are either
going to have to go or I’m going to be forced to arrest you.”4
Because the handbilling by then had gone on for as long as
originally planned, the Union agents and their volunteers com­
plied with Potter’s request and left.
At approximately 3 p.m. the following day, Ferguson,
Kilmire, Redding area union agent Brett Slesser, and three or
four volunteers from the Union’s membership handbilled at the
Winco store in Redding.5 About 40 minutes after this handbill­
ing commenced, a woman wearing a Winco uniform came out
of the store, spoke with Kilmire briefly and then approached
Ferguson. She identified herself as the head clerk or, perhaps,
head clerk in charge, and told Ferguson that the handbillers
were trespassing and that she would call the police if they did
not leave immediately. The woman then returned to the store
without further discussion. The handbilling continued without
interruption until shortly after 5 p.m., the time established by
Ferguson to finish handbilling for the day. No police official
ever arrived.
At the time, Respondent employed two females, Charity
Borges and Judy Cabral, in a department head capacity at Red-
ding. Pay records and Cabral’s testimony establish that both
were absent from work on vacation at the time of the April 15
handbilling. The General Counsel never established the actual
identity or the capacity of the person who approached Fergu­
son, accused him of trespassing, and threatened to have him
arrested.
C. Further Findings and Conclusions
Ordinarily an employer may bar nonemployee union agents
from distributing literature on its property except in the rare
cases—not applicable here—involving inaccessible employees.
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Bab­
cock & Wilcox Co., 351 U.S. 105 (1956). While Lechmere
requires “appropriate respect” for an employer’s property
rights, the Board does not accord an employer “any greater
property interest than it actually possesses.” Bristol Farms, 311
NLRB 437, 438 (1993). Hence, in nonemployee access cases,
the property owner seeking to bar nonemployee union agents
engaged in Section 7 activity has the “threshold burden” of
establishing that “it had, at the time it expelled the union repre­
sentatives, an interest which entitled it to exclude individuals
from the property.” Indio Grocery, 323 NLRB 1138, 1141
(1997), enfd. NLRB v. Calkins, 187 F.3d 1080 (9th Cir. 1999).
In California, an employer enjoys no right to exclude non-
employee union representatives engaged in peaceful picketing
or handbilling from the premises surrounding a retail estab-
4 Under Section 142 of the California Penal Code it is a crime for a
peace officer to refuse “willfully” to receive or arrest “a person charged
with a criminal offense.” One California Attorney General’s opinion
indicates that California peace officers may have no discretion to refuse
a cit izen’s arrest request even where the officer is satisfied that there is
insufficient grounds for a criminal complaint against the arrested per-
son. 73 Op. Atty. Gen. Cal. 291 (1990).
5 MAW Handbill 1 at Redding contained the same message, how-
ever the stores it listed varied slightly. It did not list Albertsons or
Lucky Stores, but instead listed Raley’s. All other stores listed re­
mained the same. (GC Exh. 11.)
lishment. After reviewing the lengthy evolution of this subject
in the California courts and in its legislature, the California
Supreme Court summarized its definitive holding on this sub­
ject in Sears, Roebuck & Co. v. San Diego District Council of
Carpenters, 25 Cal. 3d 317 (1979), in the following manner:
[T]he sidewalk outside a retail store has become the tradi­
tional and accepted place where unions may, by peaceful
picketing, present to the public their views respecting a labor
dispute with that store. Recognized as lawful by decisions of
this court, such picketing likewise finds statutory sanction in
the Moscone Act, and enjoys protection from injunction by
the terms of that act. In such context the location of the store
whether it is on the main street of the downtown section of the
metropolitan area, in a suburban shopping center, or in a
parking lot, does not make any difference. Peaceful picketing
outside the store, involving neither fraud, violence, breach of
the peace, nor interference with access or egress, is not subject
to the injunction jurisdiction of the courts. [Emphasis added.]
At first blush, this case appears to be indistinguishable from
Indio Grocery and Sears but Respondent advances several con­
tentions that require discussion.6 First, Respondent contends
that the General Counsel failed to establish that the handbillers
here were engaged in activity protected by Section 7. Respon­
dent fashions this argument from its belief that Local 588
handbilled for an “area standard” object. Starting from this
premise, Respondent then asserts that no finding may be made
that this handbilling is protected by Section 7 because the Gen­
eral Counsel failed to prove that the Union’s “area standard”
assertion had any basis in fact. This contention lacks any sub­
stantial factual support.
Although Ferguson misused the term “area standards” during
the course of his testimony, his testimony read in its entirety
and in conjunction with the wording of the handbills, particu­
larly Local 588’s handbill, merits the conclusion I have reached
that this handbilling amounted to nothing other than publicizing
a consumer boycott predicated on the undisputed fact that
Winco does not have a contract with Local 588.7 The
8(b)(7)(C) publicity proviso permits precisely this type of pub­
licity unless it causes employees to cease work or it causes
persons engaged in commerce to refuse to pick up or deliver
goods to the boycotted employer. No evidence shows that this
handbilling had that effect. Accordingly, I find that Local
588’s handbilling at Chico and Redding was protected by Sec­
tion 7. Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147
(1983); Indio Grocery, supra.
Second, Respondent contends that neither Bryant, admittedly
its supervisor and agent on April 14, nor any of its Redding
supervisors or agents interfered with, restrained, or coerced any
6 As is the case here, the Chula Vista Sears store was a stand-alone
retail establishment. Sears, Roebuck & Co. v. San Diego District
Council of Carpenters, 17 Cal. 3d 893, 895 (1976).
7 For what it is worth, the charge which gave rise to this dispute in
the first place alleges that Respondent sought to “prevent the peaceful
and lawful distribution of handbills informing the employees and the
public (including consumers), that the Employer does not have a collec­
tive-bargaining agreement with the Union[.]”
WINCO FOODS, INC. 293
of the union agents in violation of Section 8(a)(1). As to Bry­
ant, Respondent contends:
[H]e simply approached the Union’s representatives, told
them that their handbilling was in violation of a Chico ordi­
nance banning commercial advertising on private property . . .
and asked them to stop their unlawful activities. When those
entreaties failed, Bryant telephoned and sought the police to
enforce the Chico ordinance. Moreover, there is virtually no
evidence even remotely showing that Winco ever threatened
the Union representatives with arrest.
I reject Respondent’s contention as to Bryant. Although there
is no evidence that Bryant specifically requested that Sergeant
Potter or the other policeman arrest any of the handbillers, I am
satisfied General Counsel need not provide evidence that spe­
cific to prevail. Instead, I find that Bryant, by telephoning the
police and expressing his desire that the handbillers be removed
from Respondent’s Chico property, became responsible for the
arrest threat ultimately uttered by Sergeant Potter. Moreover,
Bryant’s remark to Ferguson that he would call the police and
have the handbillers removed is tantamount to a threat to have
them arrested.
As to the April 15 Redding incident, Respondent contends
that the General Counsel failed to show that “anyone speaking
on behalf of the Company or authorized to speak on its behalf”
uttered the complained of remarks to Ferguson. In essence, the
General Counsel argues that the anonymous person who spoke
to Ferguson acted with apparent authority to speak on Respon­
dent’s behalf. In support of this contention, the General Coun­
sel points to facts showing that this individual wore a Winco
uniform, identified herself as a “head clerk;” conducted herself
as someone “having authority to order the union agents and
members off of Respondent’s premises . . . [in a manner consis­
tent], with Respondent’s policy,” and the lack of evidence
showing that Respondent repudiated that conduct when the
Union filed an unfair labor practice charge. I reject General
Counsel’s argument. Simply put, the General Counsel failed to
prove one of the critical elements of a violation in cases of this
kind, to wit, the agency status of the person who spoke to Fer­
guson at Redding. For this reason, I will recommend dismissal
of complaint paragraph 7.
Third, Respondent claims, in effect, that the Bab­
cock/Lechmere rule establishes the scope of a union’s Federal
property access rights and an employer’s Federal obligations
that preempt State law. For this reason Respondent believes
that it is improper to rely on State law in determining whether a
property owner has an interest sufficient to exclude nonem­
ployee union agents engaged in Section 7 activity on its prem­
ises. Seemingly, Respondent asserts that Babcock and Lech­
mere expands an employer’s property rights, ordinarily deter-
mined by State law, to include an absolute right to exclude
nonemployee union organizers except where employees are
inaccessible, State law notwithstanding. The Ninth Circuit
rejected this argument in the Indio case.8 That court provided
8 Similarly, it is contrary to the view expressed in the Eighth Cir­
cuit’s opinion in O’Neil’s Markets v. NLRB, 95 F.3d 733 (8th Cir.
1996).
this explanation of the relationship between State law and the
Babcock/Lechmere rule:
At first blush, Lechmere appears to create a bright line rule
that in all cases, employers may exclude nonemployees from
their property (subject to the rare inaccessibility exception).
Lechmere does not suggest, however, that the NLRA man-
dates exclusion; the decision simply recognizes that “arguable
Section 7 claims do not pre-empt state trespass law.” 502
U.S. at 535, 112 S. Ct. 841 (citing Sears, Roebuck & Co., 436
U.S. at 205, 98 S. Ct. 1745). The Court has since clarified this
aspect of Lechmere, explaining that employers may exclude
union organizers in deference to state common law, but not
because the NLRA itself restricts access. See Thunder Basin
Coal, 510 U.S. at 217 n. 21, 114 S. Ct. 771. “The right of
employers to exclude union organizers from their private
property emanates from state common law, and while this
right is not superseded by the NLRA, nothing in the NLRA
expressly protects it.” Id., Thunder Basin Coal thus makes
plain what Lechmere left implicit: although the NLRA’s pro­
tection of Section 7 rights does not trump state property rights,
state property law is what creates the interest entitling em­
ployers to exclude organizers in the first instance. Where
state law does not create such an interest, access may not be
restricted consistent with Section 8(a)(1).
. . . .
Lechmere did not speak to the situation where, as here, an
employer’s state law property right does not entitle it to ex­
clude organizers. The Board has recognized that in such
cases, nonemployees’ exercise of Section 7 rights creates no
conflict as against any right of the employer. Although an
employer’s property rights “must be given appropriate re­
spect, an employer need not be accorded any greater property
interest than it actually possesses. Thus, the analysis that ap­
plies when Section 7 rights and property rights conflict is not
appropriately invoked as to an employer that possesses only a
property right that, under the law that creates and defines the
employer’s property rights, would not allow the employer to
exclude the individuals.” Bristol Farms, 311 NLRB at 438
(citing Johnson & Hardin Co., 305 NLRB No. 83 (1991),
WL 251699 (1991), enforced in relevant part, Johnson &
Hardin Co. v. NLRB, 49 F.3d 237, 241–42 (6th Cir.1995)).
Accordingly, “an employer’s exclusion of union representa­
tives from private property as to which the employer lacks a
property right entitling it to exclude individuals . . . violates
Section 8(a)(1), assuming the union representatives are en-
gaged in Section 7 activities.” Id.; see also O’Neil’s Markets,
d/b/a Food For Less, 318 NLRB 646, 649, (1995), WL
511396 (1995), enforced, 95 F.3d at 738–39.
Accordingly, in view of the clear precedent of the Board (that I
am bound to follow), and of the Ninth Circuit where this dis­
pute arose, I reject Respondent’s claim that the Bab­
cock/Lechmere rule preempts State law in nonemployee access
cases.
Fourth, Respondent argues that even assuming that State law
applies here, the Butte County Superior Court decisions in the
Voter Revolt and Discovery Petition Management cases estab-
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lish specifically that Respondent has a right to exclude nonem­
ployee solicitors at its Chico property. This claim lacks merit.
Voter Revolt and Discovery Petition Management were decided
by the Butte County Superior Court within the framework and
context of the California constitutional right to engage in politi­
cal expressive activities on the premises of privately owned
shopping centers first recognized in Robins v. Pruneyard Shop-
ping Center, 23 Cal. 3d 899 (1979). Although the Pruneyard
and its progeny share some similar characteristics with the line
of labor cases culminating in Sears decided 6 months after
Pruneyard, any attempt to apply a Pruneyard analysis to the
labor cases decided by the California Supreme Court quickly
demonstrates the distinctions found in California law between
constitutionally protected political activity and statutorily pro­
tected concerted activities in support of collective bargaining.
A comparison of Pruneyard and In re Zerbe, 60 Cal. 2d 666
(1964), one of the earliest labor related access cases in Califor­
nia, illustrates this point. Thus, Pruneyard rests solely on a
constitutional foundation that seeks to protect speech and asso­
ciational rights in modern commercial settings on private prop­
erty that compares to the traditional town center where political
expressive activities routinely occur. Zerbe, by contrast, re-
versed the trespass conviction of a union agent who entered on
private land of a nonparticipating party in order to picket adja­
cent to a railroad spur leading to the Chris Craft yacht manufac­
turing plant where the union was on strike.9 The court’s rever­
sal is based on its perception of California public policy favor­
ing concerted activities in support of collective bargaining and
the State’s trespass law that exempts peaceful activities permit­
ted by the National Labor Relations Act, in that case, primary
picketing. This core Zerbe rationale serves as the godfather of
all subsequent California Supreme Court labor access decisions
through Sears, the last definitive word from that court address­
ing the right of nonemployee union agents to picket or handbill
on private property. See Schwartz–Torrence Investment Cor­
poration v. Bakery and Confectionery Workers’ Union, Local
No. 31, 61 Cal. 2d 766 (1964); In re Lane, 71 Cal. 2d 872
(1969). As is abundantly clear, Pruneyard simply has no appli­
cation in Zerbe-like situations and absolutely nothing in Prune-
yard even remotely suggests that the California Supreme Court
intended to sweep away the protections it had previously ac­
corded labor expressive activities. To the contrary, the Court’s
Sears decision that followed unmistakably applied a signifi­
cantly different rationale to the labor expressive activities in­
volved there than it earlier applied to the political expressive
activities present in Pruneyard.
Accordingly, I conclude that California cases arising in the
context of political expressive activities that perforce look to
Pruneyard for resolution have little, if any, relevance to cases
arising in the context of labor-based expressive activities. For
this reason, I find the prior decisions by the Butte County Supe-
9 Mr. Zerbe had been convicted of violating a municipal trespass or­
dinance. The California Supreme Court’s reversal in Zerbe makes it
plain that the State’s labor policy in tandem with the state trespass
statute preempts conflicting municipal ordinances. For that reason, I
find the Chico ordinance, whatever its meaning and purpose, inapplica­
ble here.
rior Court as well as the California court of appeals opinion in
the Trader Joe’s case10 cited by Respondent inapplicable to this
or like cases.
Having concluded that Respondent failed to establish its
threshold burden of showing that it had a right under California
law to exclude the Local 588’s agents from its property, I find
that Respondent violated Section 8(a)(1) by prohibiting the
Union’s handbillers from peacefully distributing consumer
boycott handbills at its Chico store on April 14 and by sum­
moning Chico city police to enforce this prohibition.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By prohibiting Local 588 agents from engaging in the
peaceful distribution of consumer boycott handbills at its Chico
store on April 14, and by summoning the Chico city police to
enforce its prohibition, the Respondent engaged in an unfair
labor practice within the meaning of Section 8(a)(1).
4. The General Counsel failed to prove that Respondent en-
gaged in any unfair labor practice in connection with Local
588’s handbilling at the Redding, California, Winco store on
April 15, 1999.
5. The Respondent’s unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in a certain
unfair labor practice, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
Respondent will be required to post the attached notice in
places at its Chico store where notices to employees are nor­
mally posted. However, in order to assure that the employees,
whose rights would be vindicated by this decision, will have a
greater opportunity to receive information about the disposition
of this matter, my recommended Order will require that Re­
spondent also provide the Union with signed and dated copies
of the attached notice for posting by the Union if it so chooses.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Waremart Foods, d/b/a Winco Foods, Inc.,
Chico, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Prohibiting Local 588, United Food and Commercial
Workers Union, from peacefully distributing consumer boycott
10 Trader Joe’s Co. v. Progressive Campaigns, Inc., 73 Cal. App. 4th
425 (1999).
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
WINCO FOODS, INC. 295
handbills on the sidewalk abutting the public entrances to its
store at Chico, California, and in that portion of the parking lot
surrounding that store outside the designated safety zone, and
summoning the Chico city police to enforce such a prohibition.
(b) 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
Chico, California, store copies of the attached notice marked
“Appendix.”12 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by the Re­
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other 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 the
Respondent at any time since September 30, 1999.
(b) Sign and return to the Regional Director sufficient copies
of the notice for posting by the Union, if willing, at places
where it customarily posts notices to its members and employ­
ees it represents.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
12 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.”
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.
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any 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 prohibit Local 588, United Food and Commer­
cial Workers Union, from peacefully distributing consumer
boycott handbills on the sidewalk abutting the public entrances
of our Chico, California, store and in that portion of the parking
lot surrounding that store outside the designated safety zone,
and WE WILL NOT summon the Chico city police to enforce such
a prohibition.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran­
teed them by Section 7 of the Nation Labor Relations Act.
WINCO FOODS, INC.