Dillard's Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1992

305 N.L.R.B. 1102 (N.L.R.B. 1992)

1102
305 NLRB No. 173
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise stated, all events herein occurred during 1990.
Dillard’s, Inc. and Carpenters District Council of
Houston and Vicinity, affiliated with United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 16–CA–14705–2
January 10, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 31, 1991, Administrative Law Judge Burton
Litvack issued the attached decision. The General
Counsel and the Respondent filed exceptions and a
supporting brief and the Respondent filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Olivia Garcia Boult, Esq., for the General Counsel.
Fraser A. McAlpine, Esq. (Andrews & Kurth), of Houston,
Texas, appearing on behalf of the Respondent.
Victor J. Bieganowski, Esq. (Bieganowski & Allen), of Hous-
ton, Texas, appearing on behalf of the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Based on
the filing of the unfair labor practice charge in the above-
captioned matter by Carpenters District Council of Houston,
affiliated with United Brotherhood of Carpenters and Joiners
of America, AFL–CIO (the Charging Party), on August 20,
1990,1 the Regional Director of Region 16 of the National
Labor Relations Board (the Board), on October 3, 1990,
issued a complaint, alleging that Dillard’s, Inc. (the Respond-
ent) engaged in unfair labor practices violative of Section
8(a)(1) of the National Labor Relations Act (the Act). Re-
spondent timely filed an answer, essentially denying the
commission of the alleged unfair labor practices. The trial on
the merits of the allegations of the complaint, before me was
held on December 18, 1990 in Houston, Texas. At the trial,
all parties were afforded the opportunity to examine and to
cross-examine all witnesses, to offer into the record any rel-
evant evidence, to argue their legal positions orally, and to
file posthearing briefs. The latter documents were filed by
counsel for the General Counsel and by counsel for Respond-
ent and have been carefully considered.
Accordingly, based on the entire record, including the
posthearing briefs and my observation of the testimonial de-
meanor of each of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that, at all times material, it maintained
its principal office in Little Rock, Arkansas, and operated re-
tail stores in several states of the United States, including
Texas, with one such retail store located at the Westwood
Mall in Houston, Texas. Respondent further admits that, dur-
ing the 12-month period immediately preceding the issuance
of the instant complaint, a representative period of time, in
the normal course and conduct of its aforementioned busi-
ness operations, it purchased goods and materials valued in
excess of $50,000 directly from suppliers located outside the
State of Texas, with goods and materials shipped directly to
its Westwood Mall facility in Houston, Texas, and that, dur-
ing this same representative period, derived gross revenues,
from the operation of its retail stores, in excess of $500,000.
II. LABOR ORGANIZATION
The record establishes that the Charging Party exists for
the purpose of dealing with employers concerning labor dis-
putes, that it negotiates collective-bargaining agreements with
employers on behalf of their employees, and that it rep-
resents employees in the filing of contractual grievances
against their employers.
III. THE ISSUE
The complaint alleges that Respondent engaged in conduct
violative of Section 8(a)(1) of the Act by prohibiting rep-
resentatives of the Charging Party from engaging in conduct
privileged by Section 7 of the Act (handbilling) at the first-
level entryway to its retail store at the Westwood Mall in
Houston, Texas, by instructing representatives of the Charg-
ing Party that they could only engage in handbilling at the
street entrances to the Westwood Mall, by threatening to ar-
rest representatives of the Charging Party unless they ceased
their handbilling at the first-level entryway to the retail store
at the Westwood Mall, and by causing the arrest of a rep-
resentative of the Charging Party for having engaged in the
above-described conduct, which allegedly constituted a crimi-
nal trespass. Respondent denied the commission of the al-
leged unfair labor practices, arguing that the degree of im-
pairment to the Section 7 right of access to its private prop-
erty at the Westwood Mall, if such should such be denied,
is less substantial than the degree of impairment to its prop-
erty right if access is granted.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent operates a chain of retail department stores in
several southern States, including Texas, with eight stores lo-
cated in the vicinity of Houston, Texas. The retail store in-
volved in the instant proceeding is at the Westwood Mall,
which is located at the intersection of the Southwest Freeway
and Bissonnet in Houston. The Westwood Mall, which is a
typical urban shopping mall, is a two-level, indoor complex
1103DILLARD’S, INC.
2 Apparently, Oklahoma Installation is an out-of-state contractor,
based in Oklahoma. Likewise, GC Plus is an Arkansas contractor.
3 The record establishes that the Charging Party is engaged in an
on-going labor dispute with Oklahoma Installation in several south-
ern States, including Tennessee and Louisiana.
4 James Mount testified that Respondent owns this particular park-
ing lot at the Westwood Mall.
5 Elaborating, Herd explained that the Charging Party discovered
that Oklahoma Installation normally acts as the fixture installation
subcontractor on Respondent’s remodeling projects, and ‘‘it became
evident to us that Dillard’s was primarily in the business of using
non-union people.’’ Therefore, the handbilling was designed ‘‘to put
a little extra pressure on Dillard’s to start using some fair contrac-
tors.’’
6 The handbilling, addressed to the public, stated that ‘‘by patron-
izing this establishment we have afforded the owner the need to re-
model. In remodeling, the owner has selected OKLAHOMA IN-
STALLATION who does not carry health insurance for their em-
ployees.’’ The handbill concludes with the appeal, ‘‘DO NOT PA-
TRONIZE DILLARD’S.’’
There is no dispute that the handbill addresses the failure of Okla-
homa Installation’s terms and conditions of employment to meet area
standards. In this regard, during cross-examination, Herd conceded
that the Charging Party’s only dispute was with Oklahoma Installa-
tion and that the Charging Party had no labor dispute with Respond-
ent and was not attempting to organize its employees. There is no
contention by the Charging Party that Respondent’s employees were
being paid substandard wages or any evidence that the Charging
Party was, at all, interested in the wages or benefits received by Re-
spondent’s employees.
surrounded on all sides by parking lots. The mall is anchored
by Respondent’s department store at one end and by a Sears
retail store at the other and has specialty shops, a movie the-
ater, and restaurants located between the two major retail
stores. There are, of course, several outside entrances into the
mall and into the various retail establishments. With regard
to the Dillard’s department store, there are three outside en-
trances, with one located on each of the three outside sides
of the store, and two inside entrances, one on each level of
the mall. The entrance at which the incident involved here
occurred is the inside entrance on the lower level of the mall.
The record establishes that the lower mall entrance to Re-
spondent’s store is enclosed by a marble facade, attached to
which is a Dillard’s sign which overhangs the entryway and
faces out into the mall. Two marble columns, each 32 inches
wide, effectively divide the entryway into thirds. A guide
rail, 11 inches behind the pillars and along which the sliding
glass door, used to close the store from the mall’s common
area at night, is positioned, runs the entire length of the en-
trance and forms a demarcation line for the interior of the
store. The entrance is slightly less than 48 feet in length and,
measured from the guide rail to the outside edge of the
Dillard’s sign, is between 5 and 6 feet in width. Immediately
behind the guide rail, inside the store, are alternating 12-
inch-square black and white tiles, which run the entire length
of the entryway. Beyond this single row of tiles is the inte-
rior floor of the store, which appears to be a beige or brown
tile. The floor beneath the facade and sign is a gray-green
tile and is identical to the tile in the mall’s common area.
Finally, inside the store, located just in excess of 4 feet from
the guide rail, are display counters for merchandise.
James Mount, the store manager at Respondent’s
Westwood Mall facility, testified that ‘‘anything behind the
marble facade,’’ including the marble facade itself and the
gray-green tile beneath it, is owned by Respondent and that
Respondent is responsible for maintaining the entrance area
and performing any repair work there. However, Mount
added, at night when the sliding glass door is in place, mall
personnel clean the entrance area while performing such
work in the common areas of the mall. Finally, with regard
to security, Respondent is responsible for providing said
services on its property, including the entrance area, and the
mall provides security services for the common areas. The
Westwood Mall security director, David Schultz, testified
that, after hours, in the event of a minor discipline problem
on Respondent’s property, mall security would handle it;
however, if of a more serious nature, ‘‘we would call the po-
lice.’’
During the spring and summer of 1990, Respondent was
engaged in a complete interior renovation of its Westwood
Mall store and two others in the Houston municipal area.
The general contractor for these remodeling projects was GC
Plus which, in turn, hired a subcontractor, Oklahoma Installa-
tion,2 to perform the work of installing the ‘‘furniture fix-
tures,’’ including the display cases. In or about August 1990,
the Charging Party was in the midst of an organizing cam-
paign amongst the carpenter employees of Oklahoma Instal-
lation in the Houston area3 and became aware that the em-
ployees were then working in three of Respondent’s retail
stores in the city, including the one at the Westwood Mall.
Thereafter, business agent, James Herd, and other representa-
tives of the Charging Party held meetings, in the parking lot
next to the Dillard’s store’s loading dock4 at the Westwood
Mall, with the Oklahoma Installation employees and dis-
cussed representational matters. Also, besides its organizing
campaign, without limiting such to the three Dillard’s stores
at which employees of Oklahoma Installation were working,
officials of the Charging Party decided to commence a
handbilling campaign against Respondent at all of its Hous-
ton area department stores. The purpose of said activity, ac-
cording to James Herd, would be ‘‘to induce the general
public not to shop at Dillard’s because of the way that they
done their construction.’’5
Having decided that the first of Respondent’s stores to be
handbilled would be the Westwood Mall facility, on August
17, Herd, Benny Garza, an International representative for
the Charging Party, and Garza’s wife arrived at the mall at
approximately 2:45 in the afternoon. Herd’s intent was to
have two of the Oklahoma Installation carpenter employees,
J. B. Baxter and Craig Hurley, who were working at the
store that day, help with the handbilling; however, upon en-
tering the Dillard’s store and speaking to them, he learned
that they would not end their work shift until 3:30 p.m.
Thereupon, Herd and the Garzas waited in a mall restaurant
until the two Oklahoma Installation employees finished
working and met the two men in a parking lot adjacent to
Respondent’s store. After demonstrating how they should
perform their handbilling task, Herd stationed the two work-
ers at one of the outside entrances to the Dillard’s store and
gave each some handbills.6 Then, Herd and the Garzas en-
tered the lower level of the mall through a center entrance
and walked to an El Chico’s restaurant, which is located to
the side of the entrance to the Dillard’s store on the lower
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 David Schultz’ account of this initial conversation with Herd is
essentially corroborative of the latter. According to the mall security
director, he explained to Herd the mall’s policy prohibiting the dis-
tribution of handbills inside the ‘‘common area’’ of the mall and
told him to ‘‘get out.’’ At this point, Herd began moving toward the
Dillard’s entrance area, stopping every few feet, and asking if he
was ‘‘fine.’’ Schultz said, no, until Herd ‘‘got into the Dillard’s
area’’ and, then, said, yes.
With regard to the mall’s solicitation policy, Schultz’ testimony
was not entirely clear. Initially stating that, as of August 17, the
Westwood Mall’s policy was to prohibit handbilling and any form
of solicitation, Schultz then stated that an exception existed for
‘‘anything related to a marketing function,’’ such as the Boy Scouts.
During cross-examination, he mentioned functions put on by a
jazzercize group, the Lion’s Club, and a church group. Finally, after
stating that the Boy Scouts merely put on a soap box derby dem-
onstration, Schultz averred that the Girl Scouts are permitted to sell
cookies inside the mall.
8 By this point, the two Oklahoma Installation employees, Baxter
and Hurley, had ceased handbilling outside and come inside and
were observing and listening to the conversations between Herd and
Schultz. As to why they had stopped handbilling, Baxter said ‘‘we
wasn’t getting any traffic outside’’ and ‘‘it was real hot and we were
getting thirsty and wanted something to drink.’’
9 As stated above Oklahoma Installation employees, Baxter and
Hurley, witnessed what occurred. According to the former, he ob-
served a mall security officer approach Herd and tell him that he
could not handbill inside the mall but could do so ‘‘in the store,’’
beneath the canopy. Hurley corroborated this, adding that Herd re-
plied that he did not know what property belonged to the mall and
what was owned by Dillard’s. The security guard pointed to the area
between the columns, beneath the marble facade, and Herd
handbilled in that area. A short while later, according to Hurley, the
mall security man returned.
10 Falls himself described his work responsibility for Respondent
as mainly acting as a ‘‘deterrent for shoplifters.’’ While working for
Respondent, Falls is paid by the latter but continues to wear his
Houston Police Department uniform, including his gun and holster
but not his radio; must, according to policy regulations for off-duty
work, adhere to all Federal, state, and local laws; and must be avail-
able to respond to any police situations. Finally, Falls testified that
he is ‘‘authorized’’ by Respondent to arrest law violators and to
threaten arrest in accord with district attorney authorization. In the
latter regard, Fall explained that normal procedure is to seek author-
ization from the office of the Houston district attorney prior to ar-
resting anyone.
level. In front of the restaurant, Herd and Benny Garza set
up a videotape camera in order that Garza could record
Herd’s handbilling activities for instructional purposes, and
Herd ‘‘positioned [himself] . . . six feet or so in front of the
sign in the middle of the major opening’’ into the store. Esti-
mating his starting time at 3:45 p.m., Herd handbilled for no
more than 8 minutes when David Schultz, the Westwood
Mall security director, approached him from inside the mall.
According to Herd, ‘‘he asked what I had.’’ Herd introduced
himself, showed Schultz a handbill, and said he was engaged
in an organizing campaign with Oklahoma Installation and
‘‘we had a right to be there.’’ Herd testified that Schultz
asked if he had received the mall manager’s permission to
engage in handbilling, and Herd said he was not aware that
such was required. To this, the security guard replied that
‘‘They do not allow any handbilling inside of the mall.’’
Then, for the next several minutes the two men discussed
handbilling that Herd had done elsewhere. Eventually,
Schultz said he would ‘‘grant’’ that Herd had a ‘‘right’’ to
handbill ‘‘but not here.’’ Herd asked where, and the security
guard ‘‘directed’’ Herd to the area beneath the Dillard’s en-
trance facade, saying ‘‘this out here belongs to the mall and
that in there belongs to Dillard’s and you’re going to have
to be underneath that sign.’’ Schultz then walked away in the
direction of the mall.7
Adhering to the security director’s instructions, Herd con-
tinued to handbill for several more minutes beneath the
Dillard’s facade. At one point, he was approached by another
Westwood Mall security official, who grabbed the handbills
from Herd and, as the latter grabbed them back, said Herd
‘‘couldn’t do that in there, I had to go outside.’’ Herd ex-
plained about his conversation with Schultz, and the guard
‘‘backed off,’’ speaking into a radio. Herd resumed
handbilling inside the Dillard’s entryway beneath the store
sign, and, after a few minutes, Schultz returned, accompanied
by a woman he identified as Michelle Frazier, the mall’s
marketing director. According to Herd, Schultz said that they
had been ‘‘mistaken’’ and ‘‘I had to be either outside or in-
side the store. . . . But I was not going to be allowed to
handbill . . . inside the mall.’’ Herd added that, when
Schultz said ‘‘inside the store,’’ he ‘‘pointed’’ to the area be-
hind the black and while tiles behind the guide rail. Finally,
referring to the two Oklahoma Installation employees who
had been handbilling at an outside entrance to the Dillard’s
store,8 Schultz said ‘‘we was going to have to get out at the
street entrance to the mall.’’ Contradicting Herd, Schultz tes-
tified that, when he returned with Frazier to where Herd was
handbilling, the latter was not standing where he had been
when Schultz left but, rather, was inside the mall’s common
area, directly in front of the Dillard’s sign. While not deny-
ing what Herd attributed to him, Schultz further testified that
he told Herd to move back onto Dillard’s property and that
he was ‘‘prohibited’’ from handbilling in the common area.9
There is no dispute that, while Herd handbilled in the
common area of the mall and inside the Dillard’s entryway
and while he spoke to the mall security guards, he was being
observed by Respondent’s store manager Mount and by the
Dillard’s store’s security guard, Clinton Falls, who is a full-
time Houston policy officer and, while off-duty, is employed
by Respondent in the above capacity.10 Falls stated that, dur-
ing the afternoon of August 17, he was notified by the store
telephone operator that he was to meet Mount at the lower
level mall entrance to the store and that ‘‘there was a man
handing flyers out in the mall.’’ Thereupon, he met Mount
at the above location, and they stood in the area of the dis-
play cases and watched Herd handbilling for about 5 or 10
minutes ‘‘just a little bit outside of Dillard’s property.’’ After
a while, according to Falls, he observed Mall Security Direc-
tor Schultz approach Herd; watched, as Schultz and Herd
spoke and possibly moved inside the store entrance area and,
therefore onto Respondent’s property; and listened to Schultz
telling Herd that he could not be out in the mall area.
Assertedly without being instructed to do so and believing
that Schultz was having a problem and aware of Respond-
ent’s policy prohibiting any solicitations on its property by
employees or anyone else, Falls walked over to where Herd
and Schultz were speaking and intervened in the conversa-
tion. While Falls specifically denied having been instructed
1105DILLARD’S, INC.
11 Falls did concede that ‘‘I knew that they didn’t want [Herd] in
the store. They have a policy against handbilling inside the store.’’
12 Mount testified that ‘‘I didn’t feel that we had any reason to
take any action, as long as [Herd] was out in the mall. . . . Only
when he got on our property . . . did I have a problem with that.’’
When he observed Herd move into the entryway, he made certain
his security guard Falls was aware that Herd could not distribute his
leaflets on Respondent’s property.
It is not in dispute that Respondent did nothing to interfere with
the handbilling by the Oklahoma Installation employees at one of the
store’s outside entrances that afternoon. Mount stated that he did
nothing simply because the handbilling was outside the doors of the
store and added that Respondent has never attempted to stop
handbilling on mall property as ‘‘we don’t have any reason to say
something to anyone that’s outside in the mall or outside our store.’’
Handbillers Baxter and Hurley corroborated Mount that no one at-
tempted to interfere with their distribution of the Charging Party’s
leaflets while they stood at an outside entrance to the Dillard’s that
afternoon.
13 Oklahoma Installation employees, Baxter and Hurley, each over-
heard this conversation. According to the former, the Houston police
officer stood on the store’s black and white tiles and said to Herd,
who was standing under the facade, that ‘‘he couldn’t handbill here
in the store . . . .’’ but he ‘‘didn’t care’’ about handbilling in the
mall. The mall security guard said that Herd could not handbill in
the mall but could do so on store property, and Herd said to both
that he had a legal right to handbill and said the officers should
‘‘make up [their] minds’’ about where he could do so and suggested
that the police officer telephone his superiors to get instructions. The
latter agreed. Hurley’s version of what was said after Falls inter-
vened in the conversation between Herd and Schultz differs from
that of Baxter. According to Hurley, both Falls and Schultz insisted
that the place Herd should be handbilling is ‘‘the outside entrance,
street entrance,’’ but Herd replied that he had a right to be where
he stood. To this, the Dillard’s guard warned that, if Herd did not
leave, he would be arrested. To this, Herd said that the police officer
should telephone his superiors ‘‘to find out what’s going on.’’ The
officer agreed to do so.
14 Herd admitted that he distributed some handbills from this loca-
tion as ‘‘a couple of two or three people came by.’’
15 While on the telephone, according to Falls, he observed Herd
distributing his flyers between the entrance columns and, on one oc-
casion when an individual attempted to avoid him, managing to hand
a handbill to that person inside the gate rail ‘‘on the marble area,’’
inside the black and white tiles. Such was specifically denied by
Herd.
Falls further testified that the property about which he asked the
assistant district attorney was the Dillard’s property.
by Mount to intervene,11 the latter contradicted Falls, testi-
fying that he (Mount) spoke to Falls as they observed Herd
handbilling out in the mall’s common area, telling the police
officer ‘‘He can’t be inside our store passing out leaflets.’’12
As he testified, Clinton Falls intervened in the second con-
versation between James Herd and David Schultz. According
to Herd, Falls approached and interjected that ‘‘Schultz is
right, there is no soliciting in the mall.’’ Then, after asking
Falls to identify himself, Herd again protested that he had a
legal right to handbill where he stood; however, Falls dis-
agreed, saying there was a no-soliciting rule and ‘‘nobody
was allowed to solicit.’’ Herd responded that a labor organi-
zation was entitled to do certain things, but the Houston po-
lice officer again disagreed. According to Herd, he thereupon
suggested to Falls that he telephone the district attorney’s of-
fice and ascertain exactly what rights Herd possessed regard-
ing handbilling. Westwood Mall Security Director Schultz re-
called that Clinton Falls came out from the store while he
(Schultz) was in the midst of his conversation with Herd and,
after Schultz told Herd he could not handbill in the mall’s
common area, Falls said he was also ‘‘prohibited’’ from
being on Dillard’s property. Then, after some further discus-
sion, without Herd suggesting such, Falls volunteered to seek
the advice of the district attorney. Falls testified that, while
approaching the two men, he overheard them disagreeing,
with Schultz instructing Herd to move outside of the mall
and the latter saying he possessed a right to be inside the
mall. At this point, Falls interjected, saying that Herd could
handbill ‘‘outside of the . . . Dillard’s doors, or anywhere
outside.’’ Schultz added that Herd could not be in the com-
mon area and pointed to the guide rail as to where he could
stand, but Falls disagreed, saying Herd ‘‘couldn’t be inside
the store.’’ At this point, according to the police officer, he
said to Herd ‘‘There’s no common ground here that you can
stand, it’s either mall or Dillard’s,’’ and announced that he
would telephone the district attorney’s office before taking
any action.13
Again, there is no dispute that, at this point in the incident,
Falls and Schultz walked into the Dillard’s store, and Falls
placed a telephone call to the Houston district attorney’s of-
fice. According to Herd, he was left alone, standing in Re-
spondent’s store entrance, and began handbilling customers
as they entered the store. A few minutes later, Schultz
walked out from inside the store, approached Herd, and said
‘‘that it was definite. . . . I could not stand underneath this
sign area, that I would have to get inside of the store.’’ Herd
protested that he knew he could not handbill inside the store,
and Schultz said he could not stay where he was and, if he
did not move, ‘‘there’s going to be trouble.’’ According to
Herd, he responded that he would stand on the black and
white tiles and, when Schultz walked back into the store, did
so.14 Herd testified further that he observed Falls conclude
his telephone conversation and that Schultz, the store man-
ager Mount, and Falls then walked back to where Herd was
standing. Falls said that he had just concluded speaking to
the district attorney’s office and was told that Herd would
have to leave ‘‘or face charges, be arrested.’’ The police offi-
cer continued, saying ‘‘that I needed to be outside of the
mall, I need to be off of the mall property, I need to be out
on the street at the entrances to the mall property, that’s
where I could handbill.’’ As Falls spoke, Herd activated a
small tape recorder in order to record what the police officer
said and pushed it toward the latter. Falls pushed it aside;
Herd protested; Falls said, ‘‘That’s it’’; and, with the assist-
ance of Schultz, proceeded to handcuff and arrest Herd.
While Schultz recalled little of what was said subsequent
to Falls telephoning the district attorney’s office other than
that Falls told Herd he was being arrested for criminal tres-
pass, Clinton Falls recalled the incident in detail. According
to the Houston police officer, the assistant district attorney,
to whom he spoke, told him that he could require Herd to
handbill on city property at the entrances to the mall and ad-
vised him that, if he asked and Herd refused to leave the
area, he (Falls) ‘‘had the right to arrest [Herd] for criminal
trespassing’’ on both the mall’s and Dillard’s property.15 Fol-
lowing this telephone conversation, Falls confronted Herd,
who, according to Falls, was standing ‘‘probably three to
four feet, if not five feet, inside the store on the black and
white tile,’’ and told the business agent that he could arrest
him (Herd) for criminal trespass if he did not leave, explain-
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 There is no dispute that Respondent and Store Manager Mount
are named as the complaining parties on the arrest report, which
Falls drafted regarding this incident.
17 Oklahoma Installation employee J. B. Baxter testified that he
heard and observed the final confrontation between Herd and Falls
and that, with regard to the location of the renewed handbilling, the
latter told Herd ‘‘he’d have to either get out in the mall or go out-
side.’’
18 Notwithstanding his fears of the effects of handbilling within the
inside entrance to Respondent’s store, Mount conceded that Herd’s
handbilling on August 17 had no effect on customers.
19 Of course, even before police officer Falls spoke to an assistant
district attorney and received authority to evict Herd from the mall,
the Westwood Mall security officers stated that Herd would not be
permitted to handbill in the common area of the mall.
ing ‘‘that from the DA’s information . . . we could push you
all the way to the sidewalk at the city property.’’ Falls fur-
ther testified that, as he spoke, Herd ‘‘brought’’ a tape re-
corder within inches of his face and asked if Falls was pre-
pared to arrest him. Falls said he was, and Herd kept saying
‘‘by whose authority’’ and making it obvious ‘‘he wasn’t
going to leave.’’ Therefore, according to Falls, ‘‘I went to
handcuff him.’’ The police officer denied speaking to store
manager Mount or receiving any instructions from his supe-
rior; however, he admitted that it was Respondent who want-
ed Herd arrested as the latter was on store property at the
time of the arrest.16 During cross-examination, Falls changed
his testimony as to where he told Herd the latter would be
able to engage in his handbilling at the Westwood Mall, stat-
ing he ‘‘told Herd that I could possibly make him go all the
way out to the city . . . but we would be happy if he just
went outside the Dillard’s entrance . . . on the sidewalk.’’
This assertion was contradicted by the transcription of Herd’s
tape recording of the incident, General Counsel’s Exhibit 5,
according to which Falls told Herd, ‘‘You are going to have
to get off the property, outside distributing your flyers. You
will have to get on city property, which is out by the street
by the entrance.’’ In any event, there is no dispute that Herd
was placed under arrest and charged with criminal tres-
passing for what occurred on August 17.17
Respondent’s store manager, James Mount, while denying
that he authorized the stoppage of handbilling activities on
the property of the Westwood Mall, admitted that he was
within 5 feet of police officer Falls at the time of the con-
frontation with and arrest of James Herd, and there is no
record evidence that Mount disavowed anything done or said
by Falls. While stating that he had no objection to anyone
handbilling inside the common area of the mall or outside
the store doors, Mount was adamant that Respondent could
not tolerate such conduct inside the store entrance on the first
level of the mall as ‘‘I think it interferes with a customer
shopping in the store.’’ Elaborating, Mount explained, ‘‘our
showcases . . . are . . . four or five feet from the edge of
those columns. A person . . . could be standing outside [of]
. . . the track . . . and literally reach in and touch . . . peo-
ple that are shopping or bending over inside our cases. . . .
I think it’s difficult for our people to stand behind the show-
case there and to try and explain to a customer the features
and benefits of this merchandise and . . . a person standing
four feet away passing out a leaflet [about] . . . why people
shouldn’t trade with Dillard’s.’’18 Apparently in agreement
with Mount, James Herd conceded that he ‘‘definitely’’
would have preferred not to have handbilled under the facade
within the entryway as ‘‘the closer you get to the door, then
the more chance there is that you’re going to be in some-
body’s way. If you’re five, or eight, or ten foot away from
that door, then they’ve got plenty of room to go around you
if they want to. And that’s what we try to do.’’
Finally, with regard to the August 17 incident, as to what
alternative means existed by which the Charging Party could
have communicated with its intended audience, the customers
of Dillard’s at the Westwood Mall, the record establishes that
James Herd would have preferred not to have engaged in
handbilling within the inside mall entrances to Respondent’s
store and that there were other locations for said conduct. In
this regard, Oklahoma Installation employees handbilled, for
a short time, by one of the outside entrances to the Dillard’s
store, without any interference from Respondent, but such
may have been of dubious value as, one of the handbillers
testified, there was little traffic and, according to Herd, ‘‘we
found that the outside entrances was nearly a ghost town,
that 80 to 90 percent of the people were coming through the
mall.’’ The location, where Herd would have preferred to
conduct his handbilling, was inside the common area of the
mall, at least, 10 feet from the lower level store entrance;
however, the Westwood Mall security officers prohibited him
from doing so. Another potential handbilling location, the
outside doors leading into the mall’s interior common area,
does not appear to have been considered by the Charging
Party. Finally, upon Herd’s arrest by Houston police officer
Falls, the Charging Party was prohibited from conducting
any more handbilling either within the inside common area
of the mall,19 by the outside doors of the Dillard’s store, or
at any other location on the property of Westwood Mall. As
the record establishes, the closest point to the Dillard’s store
the Charging Party would have been permitted to handbill
was at the street entrances to the Westwood Mall—on prop-
erty owned by the city of Houston. There was no record evi-
dence as to the effectiveness of handbilling at said location
on August 17.
While, I believe, of no relevance to the legality of the
foregoing events, the record establishes that, pursuant to a
conversation between the Charging Party’s attorney and an
attorney for the Westwood Mall, the Charging Party was per-
mitted to, and did, engage in handbilling against Respondent
in the common area of the Westwood Mall and by the out-
side doors of the Dillard’s store on, at lest, two occasions
subsequent to August 17 and that Respondent did not inter-
fere with said conduct. The record also establishes that Okla-
homa Installation employees were working at the store on the
first occasion and, on the second, according to business agent
Herd, Oklahoma Installation was ‘‘putting the finishing
touches on.’’ Moreover, subsequent to the instant events, the
Charging Party broadened its area standards and consumer
boycott campaign by handbilling at ‘‘all’’ of Respondent’s
stores in the Houston vicinity, including those at which Okla-
homa Installation employees were not working.
B. Analysis
The complaint alleges that, by threatening the arrest of
James Herd, causing his arrest, and informing him that he
could only engage in handbilling at the street entrances to the
Westwood Mall on August 17, Respondent, acting through
1107DILLARD’S, INC.
20 While I am cognizant of the testimony of Oklahoma Installation
employee Baxter that Falls told Herd he would be able to handbill
either in the common area of the mall or outside, I do not rely upon
the witness’s recollection on that point. In this regard, I note that
the tape recording of the arrest incident quotes Falls as instructing
Herd to handbill at the street entrance to the mall.
21 In Jean Country, the Board pointed out that ‘‘there is an initial
burden of the party claiming the property right to show, through tes-
timonial or documentary evidence, that it has an interest in the prop-
erty and what its interest in the property is.’’ Id. at 13 fn. 7.
22 The General Counsel bears the initial burden on the alternative
means factor. Id. at 13.
its agent, Houston policy officer, Clinton Falls, engaged in
conduct violative of Section 8(a)(1) of the Act. Central to the
resolution of these issues is a question which vexed the
Board and the courts for many years—the accommodation of
the exercise of Section 7 rights with the right of property
owners to protect their property from intrusions by outsiders
who have not been invited onto such property. All parties
agree that this question, the legality of Respondent’s afore-
mentioned conduct, and the underlying rationale are gov-
erned by the Board’s decision in Jean Country, 291 NLRB
11 (1988), wherein the Board stated, ‘‘in all access cases our
essential concern will be the degree of impairment of the
Section 7 right if access should be denied, as it balances
against the degree of impairment of the private property right
if access should be granted. We view the consideration of the
availability of reasonably effective alternative means as espe-
cially significant in this balancing process.’’ Id. at 14.
At the outset, there can be no question that Houston police
officer, Clinton Falls, acted herein as Respondent’s agent and
that the latter is liable for any allegedly unlawful acts in
which Falls engaged. Thus, at the time of the August 17 inci-
dent, Falls was working part time for Respondent as its secu-
rity guard in the Westwood Mall facility and concededly was
‘‘authorized’’ by the latter to arrest law violators. Further,
Store Manager Mount admitted that, at the time he and Falls
observed James Herd handbilling in the common area of the
mall, he instructed the police officer that Herd should not
‘‘be inside our store passing out leaflets.’’ Moreover, Mount
admitted standing within 5 feet of Falls as the latter told
Herd that he would only be allowed to handbill on city prop-
erty at the street entrances to the mall, threatened to arrest
Herd if he did not leave Respondent’s and the mall’s respec-
tive property, and arrested Herd, and the record establishes
that Mount did nothing to contravene Falls’ statements or
conduct. In these circumstances, I find that, at all times on
August 17, police officer Falls acted as Respondent’s agent
so as to bind the latter for the consequences of his conduct.
Hudson Oxygen Sales Co., 264 NLRB 61, 71 (1982); West-
ward Ho Hotel, 251 NLRB 1199 (1980); National Paper
Co., 102 NLRB 1569 (1953), enf. denied 216 F.2d 859, 868
(5th Cir. 1954).
With regard to what occurred during the afternoon of Au-
gust 17 when the Charging Party attempted to handbill at the
outside doors of Respondent’s store at the Westwood Mall,
in the interior common area of the mall just outside the
lower level entrance to the store, and, later, inside the lower
level entryway of the store, I find that, except for minor de-
tails, there is not much dispute as to what occurred. Also,
other than Clinton Falls, who was contradicted by other wit-
nesses as to some aspects and was internally contradictory as
to another and who, I believe, dissembled in order to protect
Respondent’s interests herein and, therefore, shall not be
credited except for any admissions, I found the witnesses
herein to be basically forthright and honest and generally
consistent as to what occurred. Accordingly, I find that, after
placing the two Oklahoma Installation employees at an out-
side entrance to the Dillard’s store, James Herd entered the
interior of the mall in order to handbill; that he stationed
himself in the mall’s common area a few feet outside the
lower level entrance to the Dillard’s store; that, after a few
minutes, mall security director Schultz approached, advised
Herd that, rather than on property owned by Westwood Mall,
he (Herd) would have to confine his handbilling to property
owned by Dillard’s, and directed Herd to the area beneath
the marble canopy of the store’s entryway; that Herd com-
menced handbilling from this area; that, a few minutes later,
Schultz returned and stated that Herd would be required to
handbill inside the store or by a street entrance to the mall
and could not do so inside the mall; that police officer Falls
joined them and told Herd he would not be permitted to
handbill on Respondent’s property; that Herd protested he
had a legal right to engage in handbilling and suggested that
Falls telephone the Houston district attorney’s office in order
to resolve the dispute as to where he could handbill; that
Falls did so and was informed by an assistant district attor-
ney that Herd could be arrested for a criminal trespass if he
did not leave Respondent’s property and could be forced to
confine the Charging Party’s handbilling to city property at
the street entrances to the mall; that Falls returned to where
Herd was standing and, with Store Manager Mount standing
close by, threatened to arrest Herd for a criminal trespass if
he did not leave Respondent’s property and told Herd he
could not handbill on the property of the mall and would
have to do so on city property near the street entrances to
the mall; and that, after Herd again protested that he had a
legal right to handbill, Falls arrested Herd for engaging in a
criminal trespass on Respondent’s property.20
In Jean Country, supra, the Board identified numerous il-
lustrative factors that may be relevant to assessing the rel-
ative weight of the competing rights asserted as well as the
availability of alternative means. With regard to the asserted
private property right,21 relevant considerations include the
use to which the property is put, restrictions, if any, upon the
right to public access, and the property’s relative size and
openness. Factors bearing upon the relative strength of the
asserted Section 7 right may include the nature of the right,
the identity of the employer to which the right is directly re-
lated, the relationship of the targeted employer to the prop-
erty to which access is sought, the identity of the audience
to which the communications concerning the Section 7 right
are directed, and the manner in which the activity related to
that right is carried out. Finally, factors possibly relevant to
the assessment of alternative means of communication in-
clude the desirability of avoiding the enmeshment of neutrals
in labor disputes, the safety of attempting communications at
alternative public sights, the burden and expense of non-
trespassory communication alternatives, and, ‘‘most signifi-
cantly,’’ the extent to which exclusive use of the non-
trespassory alternatives would dilute the effectiveness of the
message.22 Id. at 13. Finally, with regard to the balancing of
the competing asserted rights and the various factors to be
considered, the Board recognized that there may exist ‘‘a
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 I agree with counsel for Respondent’s point that the relevant
focus herein should be when shoppers are present in the store and
in the mall and not the hours during which no business is conducted.
Accordingly, the fact that the mall’s maintenance crew may clean
the entrance area at night does not detract from the relative strength
of Respondent’s property interest herein.
24 With the two marble columns, the store entrance is essentially
divided into three equal parts. Accordingly, notwithstanding Store
Manager Mount’s reluctance to concede such, based upon the photo-
graphic and videotape evidence, it appears that entering customers
would have room to maneuver around an individual who is stationed
in the middle of the entrance and handbilling.
25 The primary employer was, of course, Oklahoma Installation,
against whom the Charging Party was conducting an on-going orga-
nizing campaign. Rather than Respondent, the entity which had con-
tracted with Oklahoma Installation was the general contractor for
Respondent, GC Plus.
certain interdependence’’ to the factors with some being rel-
evant to more than one inquiry. Ibid.
Herein, I initially turn to whether Respondent has a gen-
uine interest in the property at issue—the lower level interior
entrance area to its store at the Westwood Mall. In this re-
gard, there is no dispute and Store Manager Mount testified
that Respondent’s property includes all the area beneath the
marble facade from the guide rail to the Dillard’s sign. Ac-
cordingly, I find that Respondent’s conduct was based upon
a legitimate interest in the property in dispute. Next, with re-
gard to the relative strength of Respondent’s right to main-
tain the privacy of said property, I note, at the outset, that
the disputed 48-foot-long and 6-foot-wide area is, of course,
the point of entry for customers to enter the store from the
interior of the lower level of the mall, that the Board has tra-
ditionally held that ‘‘the degree that an owner opens up prop-
erty to the general public reasonably has a bearing on the
strength of the property right asserted,’’ (40–41 Realty Asso-
ciates, 288 NLRB 200, 203 (1988)), and that the Board will
‘‘more likely’’ find denials of access unlawful in such cir-
cumstances (Jean Country, supra at 14). In urging that the
fact that the disputed property is open to the public during
the store’s business hours23 must not be considered in a vac-
uum, counsel for Respondent points to the close proximity
of display cases to the lower level entrance and argues that,
with shopping occurring within 5 feet of potential
handbilling, ‘‘a person handbilling inside the entrance would
for all effective purposes be in the midst of the shoppers and
sales personnel.’’ While an analysis of the entire record here-
in, including the testimony, pictures, and videotapes, has
convinced me that Respondent may have overstated the de-
gree to which one individual handbilling in an area 48-feet
wide may interfere with shopping activities inside the store,24
there is, I believe, some merit to Respondent’s contention.
Thus, the undeniable fact is that display cases and sales areas
are no more than 4 feet from the entrance, and a distinct pos-
sibility exists that a person, handbilling while standing in the
entrance area, may inadvertently step back onto the black
and white tiles behind the guide rail in order to distribute his
flyers, thereby not only disturbing customers at the display
counters but also making it difficult for incoming customers
to view the merchandise inside the display cases. That such
interference with sales and customer use of the store is, in-
deed, a potential result of handbilling inside the store’s en-
trance was recognized by James Herd himself when he con-
ceded his distaste for conducting handbilling inside a store’s
entrance inasmuch as ‘‘the closer you get to the door, then
the more chance there is that you’re going to be in some-
body’s way.’’ In these circumstances, notwithstanding the
fact that the entrance is obviously open to the public, given
the close proximity of display cases and selling areas to it
and the potential interference with business activities, I be-
lieve Respondent’s property interest would suffer some de-
gree of impairment by permitting access to the Charging
Party for the purpose of handbilling and that, therefore, Re-
spondent’s property right is not insubstantial.
With respect to the Charging Party’s activities, there is no
dispute that the message conveyed to the Dillard’s customers
by the Charging Party’s handbills on August 17 concerned
the asserted failure of Oklahoma Installation to provide its
employees with benefits (health insurance) commensurate
with area standards in the Houston vicinity. The Board has
long held that area standards activity is clearly a protected
exercise of a Section 7 right. Giant Food Markets, 241
NLRB 727, 728 (1979), enf. denied on other grounds 633
F.2d 18 (6th Cir. 1980). This is so as labor organizations
have a legitimate interest in protecting the wage and benefits
standards of its members who are employed by competitors
of the targeted employer. ‘‘Area standards [handbilling] is,
however, protected to a lesser extent than activity that fur-
thers a ’core’ purpose of the Act’’ and constitutes a ‘‘rel-
atively weak’’ Section 7 right. Red Food Stores, 296 NLRB
450 (1989); Hardee’s Food Systems, 294 NLRB 642 (1989).
The weight assigned to such activity is diminished further
when, as herein, the Charging Party’s conduct is of a tertiary
nature,25 the name of the contracting or secondary employer,
GC Plus, is not mentioned on the handbill (leaving the erro-
neous inference to be drawn that Respondent had contracted
directly with Oklahoma Installation), the handbills failed to
mention that the Charging Party was engaged in an orga-
nizing campaign of the Oklahoma Installation employees,
and ‘‘the maintenance of construction industry employees’
area standards has no apparent immediate potential to benefit
even indirectly the retail store employees of the Respond-
ent.’’ Federated Department Stores, 294 NLRB 650 (1989).
Strengthening the Charging Party’s Section 7 interest is
the relationship between the primary employer to the prop-
erty to which access is sought herein. Thus, although Re-
spondent may be a tertiary party to the labor dispute between
the Charging Party and Oklahoma Installation and the
handbilling did not concern Respondent’s employees, such
did occur on a day during which Oklahoma Installation’s em-
ployees were working at Respondent’s Westwood Mall store.
Accordingly, there exists some connection between Respond-
ent and the handbilling. Moreover, there is no evidence but
that the handbilling was conducted in a peaceful manner and,
notwithstanding my findings above, there is no record evi-
dence that Herd’s limited handbilling in the entrance to the
Dillard’s store on August 17 ‘‘unduly’’ interfered with Re-
spondent’s business operations. Best Co., 293 NLRB 845
(1989). In the foregoing circumstances, while clearly on the
weak end of the spectrum of Section 7 rights, I believe the
Charging Party’s area standards handbilling on August 17
was entitled to protection from impairment.
Given the relatively equal private property interest of Re-
spondent and the Section 7 interest of the Charging Party,
the existence, or lack thereof, of reasonable, alternative
1109DILLARD’S, INC.
26 Respondent’s defense to the unfair labor practice allegations
herein, in part, is based on the mall’s prohibition against Herd
handbilling in the common area in front of the store entrance. As
counsel states, ‘‘had the Mall not required Mr. Herd to move into
the store, Dillard’s would have remained a passive bystander. The
[Charging Party] would have been satisfied because [it] preferred to
handbill in the common area of the Mall.’’ Ultimately, counsel uti-
lizes the foregoing to frame what he perceives as the proper legal
issue herein—‘‘whether the Mall’s act of forbidding handbilling in
its common area gives the [Charging Party] a right to require
Dillard’s to permit handbilling within close proximity to ongoing re-
tail operations.’’
27 The fact that, during a 40-minute period, only a few customers
entered the store through the outside entrance does not, without
more, render this location an unreasonable alternative to the entrance
at issue herein. Thus, I do not believe the short time that the two
Oklahoma Installation employees stood at the outside entrance was
sufficient enough to be representative for that day, and they left said
location, partly, for reasons having nothing to do with the effective-
ness of the handbilling. Moreover, given the tertiary nature of the
labor dispute and that fact that Respondent never interfered with the
Charging Party’s direct organizational efforts directed at the Okla-
homa Installation employees, continued handbilling at the outside
doors to the Dillard’s store on August 17 would not have been an
unreasonable alternative to being inside.
28 The lack of record evidence as to the efficacy of handbilling on
public land by the street entrances to the mall or by the outside
doors to the mall’s common area distinguishes this case from those
in which no reasonable alternative means of communication existed.
See, for example, Sentry Markets 296 NLRB 40 (1989), and Best
Co., supra.
means of communication to the customers of Dillard’s at the
Westwood Mall on August 17, besides handbilling from
within the store’s entrance, is crucial to a determination as
to the legality of Respondent’s conduct. In this regard, four
other locations seem to have been available to the Charging
Party for disseminating its message to customers—the out-
side entrances to the Dillard’s store, the outside entrances to
the mall building, the interior common areas of the mall in
front of the open store entrances, and on city property at the
street entrances to the mall. Counsel for the General Counsel
dismisses any of the alternatives as not being ‘‘viable.’’ As
to handbilling by the outside entrances to the store, while
James Herd compared them to a ghost town, there is no
record evidence that he handbilled from that location on Au-
gust 17, and his characterization seems to have been based
upon the Charging Party’s subsequent experience. Further,
the two individuals, who did handbill at an outside entrance
to the Dillard’s store on August 17, Hurley and Baxter, did
so for no more than 20 to 40 minutes, discontinued
handbilling there not only due to slight customer traffic but
also due to the heat and their desires for refreshment, and ad-
mitted that Respondent, in no way, interfered with their ef-
forts to handbill. With regard to handbilling within the inte-
rior common area of the mall in front of the store entrances,
the indisputable fact is that, as Herd was prohibited from
handbilling from that location by Mall Security Officer
Schultz, whether this area was a viable alternative to being
in the store’s entrance area is a moot point.26 There is no
record evidence with regard to the efficacy of handbilling by
the outside entrances to the interior common area of the
mall, whether such would have been permitted by mall secu-
rity, or whether such had even been considered by the
Charging Party. Finally, upon the arrest of Herd, the only
permissible alternative handbilling location was on the prop-
erty of the city of Houston at the street entrances to the
Westwood Mall. As to this, while the Board has, in several
decisions subsequent to Jean Country, discussed the myriad
safety and communicative problems inherent in handbilling
from public property adjacent to the street entrances to shop-
ping malls and the likelihood of enmeshing neutrals in labor
disputes not their own, any findings by the Board are based
upon developed facts, the General Counsel bears the initial
burden of establishing the non-viability of a proposed alter-
native means of communication (Target Stores, 300 NLRB
964 (1990)), there exists no record evidence herein as to the
viability of handbilling by the street entrances to the mall,
and, accordingly, any finding as to the nonviability of the lo-
cation would be based on speculation.
In addition to the foregoing, one must bear in mind that,
underlying the handbilling against Respondent, was the
Charging Party’s labor dispute with Oklahoma Installation,
involving the former’s organizing campaign amongst the car-
penter employees of Oklahoma Installation. In support of
said campaign, prior to August 17, representatives of the
Charging Party held meetings with Oklahoma Installation
employees, who worked at Respondent’s Westwood Mall
store, in the parking lot near the loading dock without inter-
ference by Respondent. Moreover, in light of the tertiary na-
ture of Respondent to the Charging Party’s labor dispute with
Oklahoma Installation, it seems to me that it was incumbent
on the General Counsel to have demonstrated that the Charg-
ing Party could not have effectively communicated elsewhere
its protest involving Oklahoma Installation. However, coun-
sel for the General Counsel offered no evidence about the
existence of other Oklahoma Installation jobsites in the
Houston vicinity or even those of secondary employers, such
as GC Plus, which may have contract relationships with
Oklahoma Installation. Federated Department Stores, supra;
Hardee’s Food Systems, supra; and Homart Development
Co., 286 NLRB 714 (1987).
Based on the record as a whole, accommodating the rights
in conflict in accord with the Board’s analysis in Jean Coun-
try, in view of the close proximity of display cases to the
store entrance at issue, the likelihood that handbillers, who
are standing within the entrance area, will inadvertently step
back into the 4-foot area separating the display cases from
the entrance and interfere with sales activity and customer
access to the sales counters, and James Herd’s admission as
to the possibility of such interference, I find that there would
be significant impairment to Respondent’s property interest if
access is granted for handbilling no matter how unobtru-
sively such activity may be conducted. In contrast, noting the
relatively weak nature of the Section 7 right involved, the
fact that Respondent is but a tertiary party to the Charging
Party’s labor dispute with Oklahoma Installation, and, most
significantly, the absence of evidence that the outside en-
trances to the Dillard’s store27 or to the interior mall com-
mon area or public property adjacent to the street entrances
to the mall28 were not effective, alternate locations for the
Charging Party’s handbilling or that ‘‘no reasonable alter-
native means existed for the [Charging Party] to engage in
area standards protests against the primary [employer]’’
(Federated Department Stores, supra), in the circumstances
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 I agree with counsel for the General Counsel that neither Re-
spondent nor the Westwood Mall desired the Charging Party to be
handbilling inside the mall on August 17 and that Respondent could
have exerted some influence on the mall to permit the handbilling.
Such, however, does not excuse the General Counsel from estab-
lishing that no reasonable alternative existed—as was its burden of
proof.
30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
of this case,29 I find that the degree of impairment to the
Charging Party’s Section 7 right is less substantial. Accord-
ingly, I conclude that Respondent did not violate Section
8(a)(1) of the Act by its conduct herein. Target Stores, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Charging Party did have a statutory right to hand-
bill on the private property of Respondent in the cir-
cumstances of this case.
4. Respondent engaged in no unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended30
ORDER
The complaint herein is dismissed in its entirety.