Galleria Joint Venture

National Labor Relations Board - Board Decisions

Jul 22, 1991

303 N.L.R.B. 815 (N.L.R.B. 1991)

815
303 NLRB No. 122
GALLERIA JOINT VENTURE
1 In affirming the judge’s analysis of the Union’s ability to engage in
nontrespassory handbilling in this case, we rely, inter alia, on the objective
considerations presented by the configuration of the Respondents’ shopping
mall. Thus, although we note the proximity of the Laurel store—the target of
the handbilling—to one of the mall’s entrances, we also note that the store
was merely 1 of at least 50 commercial establishments in the 2-level mall.
Further, we take account of the five different entrances to the mall from public
property, and we note especially the interior, private-property entrances to the
mall from the adjoining 40-story office building and from the underground
parking lot. On the basis of these factors and others set forth in the judge’s
decision, we find that the Union’s handbilling on public property beyond the
perimeter of the mall and other means conceivably available to the Union are
not reasonable alternative means of communications. Without the right to
handbill next to the Laurel store on the Respondents’ property, the Union’s
ability to convey its message to potential customers of the Laurel store is so
diminished as to threaten the ‘‘destruction’’ of the Sec. 7 right. See Jean
Country, 291 NLRB 11, 12, 13, 18–19 (1988); Scott Hudgens, 230 NLRB 414,
417 (1977). See also, e.g., Emery Realty, Inc., 286 NLRB 372, 374–375
(1987), enfd. 863 F.2d 1259 (6th Cir. 1988). We do not rely on the fact that
the mall protects the handbilling activity from inclement weather.
Member Raudabaugh disagrees with the judge’s conclusion that the private
property right was ‘‘quite weak.’’ However, he agrees that the Sec. 7 right
herein was a strong one and that the Union had no reasonably effective alter-
native means of reaching those potential customers who come from the office
building and the underground parking lot. Accordingly, he agrees with the
finding of a violation herein.
2 We adopt in the absence of exceptions the judge’s dismissal of the com-
plaint allegations concerning the Respondents’ interference with the Union’s
handbilling on public property outside the shopping mall.
3 We find merit in the Union’s exception requesting clarification of the
judge’s recommended Order concerning the specific location of the protected
handbilling within the mall that the Respondents must permit, and we will
modify the Order accordingly.
Galleria Joint Venture and International Ladies’
Garment Workers’ Union Ohio District Coun-
cil a/w International Ladies’ Garment Work-
ers’ Union, AFL–CIO
St. Clair Management Co. and International La-
dies’ Garment Workers’ Union Ohio District
CounciL a/w International Ladies’ Garment
Workers’ Union, AFL–CIO. Cases 8–CA–22469
and 8–CA–22571
July 22, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On December 6, 1990, Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondents and the Union filed exceptions and sup-
porting briefs, the General Counsel and the Union filed
briefs answering the Respondents’ exceptions, and the
Respondents filed a brief answering the Union’s ex-
ception.
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,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Galleria Joint Venture and St. Clair Management Co.,
Cleveland, Ohio, their officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Prohibiting representatives of International La-
dies’ Garment Workers’ Union Ohio District Council,
affiliated with International Ladies’ Garment Workers’
Union, AFL–CIO from engaging in the protected dis-
tribution of handbills in front of the Laurel store in the
Galleria mall, Cleveland, Ohio, as long as that activity
is conducted by a reasonable number of persons and
does not unduly interfere with the normal use of facili-
ties or operation of businesses not associated with the
Laurel store.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT prohibit representatives of Inter-
national Ladies’ Garment Workers’ Union Ohio Dis-
trict Council, affiliated with International Ladies’ Gar-
ment Workers’ Union, AFL–CIO from engaging in the
protected distribution of handbills in front of the Lau-
rel store in the Galleria mall, Cleveland, Ohio, as long
as that activity is conducted by a reasonable number
of persons and does not unduly interfere with the nor-
mal use of facilities or operation of businesses not as-
sociated with the Laurel store.
WE WILL NOT in any like or related manner, inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7 of
the National Labor Relations Act.
GALLERIA JOINT VENTURE
Nancy Recko, Esq., for the General Counsel.
T. Merritt Bumpass Jr., Esq. and Carl H. Gluek, Esq.
(Thompson, Hine & Flory), of Cleveland, Ohio, for the
Respondents.
Frank Consolo, Esq. (Schwarzwald, Robiner & Rock), of
Cleveland, Ohio, for the Charging Party.
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The charges in these cases were filed, respectively, on February 20, 1990,
and March 21, 1990. The complaint issued on April 30, 1990.
2 Certain errors in the transcript are noted and corrected.
3 Provision is made that ‘‘Tenant expressly agrees that it will not ring a bell
in connection with operating the collection kettle.’’ The spirit of Christmas
grows dimmer.
4 This is, clearly, hearsay, and it was objected to. I overruled the objection.
I think that in a consumer boycott case such as this one, it is sufficient to
prove a good-faith belief that protected activity is occurring at the distant loca-
tion. In any event, the record shows a stipulation by the parties that Local 138
of the ILGWU commenced a strike in November 1989 against the Escada
New Jersey operation for alleged commission of unfair labor practices during
an organizing campaign.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge. This matter
was tried in Cleveland, Ohio, on August 20–22, 1990.1 The
complaint essentially raises the issue of the extent to which,
in the particular circumstances, property rights must yield to
the exercise of rights protected by Section 7 of the National
Labor Relations Act. Respondents deny all material allega-
tions of the complaint that assert violations of the Act.
Briefs were received from all parties on or about Novem-
ber 2, 1990 (all dates refer to 1990 unless otherwise indi-
cated). I have considered the transcript of proceedings,2 the
exhibits, and the briefs, and I have reached the following
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATIONS
I. THE BASIC FACTS
Respondent Galleria Joint Venture (GJV) owns an en-
closed shopping mall in downtown Cleveland, Ohio, which
is operated by Respondent St. Clair Management Company.
The Galleria mall apparently contains about 50 stores on two
floors, a refreshments area on the first floor, and some open
spaces which are occasionally used for exhibits. It is open
7 days a week.
The mall is a modern day analogue of the old-fashioned
downtown shopping area. It is surrounded on three sides by
streets and sidewalks commonly used by vehicular and pe-
destrian traffic and on the fourth by a walkway which is
owned by GJV and bounded by three other buildings. Each
of the four sides of the mall is bordered by a red brick side-
walk which, according to the testimony, covers both the
boundaries of GJV’s property and part of the public property
which adjoins it.
The mall has several entrances, the most formal being the
one on the west side facing East 9th Street. It may also be
entered from the south on the St. Clair Avenue side, from
the east through the lobby of an adjoining 40-story office
building owned by GJV, through the food court entrance on
the northwest, and from a parking garage beneath the ground
floor.
A manual for security guards issued by Respondents states
that the ‘‘placing or distribution of written materials and the
solicitation of customers or employees inside the Mall and
common areas is prohibited, no matter what its purpose or
sponsorship.’’ A similar rule applies to distribution and solic-
itation in the mall ‘‘parking lots or roadways.’’ While the
manual also states that express rules to this effect ‘‘are to be
posted at all entrances,’’ such posting has not been accom-
plished. Commercial solicitors have consistently been ordered
to leave the mall.
The premises in the mall have seldom been used for other
than business-related purposes. Occasional art and auto-
mobile exhibitions are permitted, but no people are there to
promote the exhibits. Galleria Marketing Manager Elizabeth
Umstead testified that she has, without deviation, refused to
grant permission to tenants who wish to distribute pro-
motional leaflets on the property. The only actual solicitation
that has been allowed was for one emergency relief situation
and by the Salvation Army during the Christmas season.
Even for the latter purpose, Respondents have created—on
paper, at least—a landlord-tenant relationship, by executing
a ‘‘lease’’ under which the the Salvation Army is allowed to
operate a ‘‘manned collection kettle’’ in a small space for a
month,3 in exchange for the Army’s agreement to provide
appropriate entertainment, such as ‘‘carolers and mini
bands.’’ At some recent time, a demonstration involving a
professor at a local university assembled outside the mall,
but on its property, for about an hour, and no effort was
made to remove the demonstrators.
The underlying labor dispute here concerns a firm called
Escada U.S.A., Inc., which imports clothes from Europe to
its distribution center in New Jersey and sells them in this
country under the label of ‘‘Escada’’ or ‘‘Laurel’’ or (appar-
ently) ‘‘Crisca,’’ either from outlets called ‘‘Escada’’ or
‘‘Laurel’’ or through sale to other stores (several of which
are in the Cleveland area). In this case, there is a store called
‘‘Laurel’’ in the Galleria which is owned by Escada and
which markets only Escada and Laurel brand clothes.
Albert Gargiulo, the Ohio state director of the ILGWU, re-
ceived a call in November 1989 from the New York office
of the ILGWU, in which he was told that the employees of
the New Jersey Escada facility were on strike in protest
against the discharge of an employee-organizer.4 Gargiulo
was asked to handbill the Laurel store at the Galleria; he
agreed to do so, and soon received some leaflets from New
York, which he promptly had duplicated.
Toward the end of November, Gargiulo and Barbara Janis,
another union employee, entered the Galleria and stood a few
feet outside the 26-foot front of the Laurel store and, in a
peaceful manner, handed out to prospective Laurel customers
two leaflets signed by ‘‘The Escada Workers’ Strike Com-
mittee, Local 138, International Ladies’ Garment Workers’
Union.’’ One leaflet read:
BUYERS BEWARE:
ESCADA ON STRIKE
On November 8, the workers at Escada (USA), Inc.’s
New Jersey warehouse—the company’s only distribu-
tion center in the United States—walked off their jobs
to protest the management’s ILLEGAL FIRING of a pro-
union employee and its subsequent attempts to intimi-
date union supporters. The workers’ action has success-
fully shut down Escada’s U.S. importing operation.
DON’T PATRONIZE A COMPANY WHICH CANNOT DE-
LIVER ITS MERCHANDISE!
DON’T BUY ESCADA, LAUREL, AND CRISCA!
The second leaflet also appealed to customers not to pur-
chase garments bearing the Escada, Laurel, and Crisca labels;
817GALLERIA JOINT VENTURE
5 See Little & Co., 296 NLRB 691 (1989), which found economic strike
picketing to be protected even though it was performed in the lobby of the
14th floor of a building in which an office of the primary disputant was lo-
cated.
6 The present distribution of handbills is not properly classified as ‘‘solicita-
tion’’ under the clause in the security manual, since there the prohibited con-
duct is limited to importuning ‘‘with respect to any request or demand for pay-
ment of money or subscription to any form of communication.’’ R. Exh. 6,
p. 2.
assailed the parsimony of Escada, Inc.; and charged that
when the employees began to organize, Escada ‘‘began to
fire us.’’ Galleria customers were asked not to ‘‘support a
lawbreaker.’’
A few minutes after arriving, the two union agents were
told by security guards to leave. They took their handbills
outside the Ninth Street entrance, but were again told to
leave the red brick path. The record indicates that not all that
path in fact underlies GJV property; some of it is public. Ap-
parently because the placement indicated by the security
guard made distribution of the handbills difficult, Gargiulo
and Janis left. They made another attempt in November,
handing out leaflets outside the mall, but were told to leave
and did so. The record is incomplete on the details of this
sortie.
On January 11, Gargiulo and Janis made another attempt,
this time back inside the mall and in front of the Laurel
store. When they were told to leave by the assistant security
manager, they did so. Janis and another union representative
stationed themselves at the two ends of East Ninth Street, off
the red brick, but soon left.
On January 22, the Union’s attorney wrote to Respondent
St. Clair, threatening to file a charge with the Board unless
agreement could be reached allowing the handbillers to lo-
cate themselves outside the Laurel store in the mall. St.
Clair’s response was affirmative, and the Union engaged
handbillers to stand, two at a time, outside the Laurel door.
The handbilling began on January 24 and ended on February
19, after St. Clair announced that it had changed its mind.
During this time, the handbilling had been orderly and with-
out incident. The Union promptly filed a charge. After their
removal, handbillers were stationed at the entrances at Ninth
and Twelfth Street and St. Clair Avenue until March 17,
when the Union decided that it could not get its message
across from those locations.
II. FINDINGS AND CONCLUSIONS
The complaint alleges that Respondents violated Section
8(a)(1) by refusing to allow the Union to handbill both inside
the Galleria and on public sidewalks outside.
The principles controlling this decision were announced in
Jean Country, 291 NLRB 11 (1988), in which the Board
modified to some extent its existing method of analyzing the
right of strangers to enter on an employer’s property to en-
gage in activity protected by Section 7 of the Act. In a effort
to clarify what has since been called ‘‘this murky corner of
the law,’’ Lechmere, Inc. v. NLRB, 914 F.2d 313, 319 (1st.
Cir. 1990), the Jean Country Board decided that the proper
test would require balancing the strength of the Section 7
claim against the strength of the property right involved, tak-
ing into account in each case ‘‘the availability of reasonable
alternative means’’ for the exercise of the Section 7 right
short of trespass.
As the Board stated in Jean Country, ‘‘[T]here is no sim-
ple formula that will immediately determine the result in
every case.’’ It has, however, attempted to provide guidance
by listing some factors which may be relevant to the assess-
ment of the weight of the various rights. As to property
rights, it suggests considering ‘‘the use to which the property
is put, the restrictions, if any, that are imposed on public ac-
cess to the property, and the property’s relative size and
openness.’’ Jean Country, supra.
Depending on the relationship between the property and
the person asserting a protectable right in it, a property
‘‘right’’ really consists of varying bundles of rights. The
owner of property generally has the power to alienate the
property, to use it for his own purposes, and to exclude oth-
ers from it. In all of these areas, however, the law impinges
on each strand of right in particular ways. The owner cannot
refuse to sell or rent his property for invidious reasons which
the Government has deemed to be unacceptable, nor, if the
site has a public character, can he choose to exclude certain
legally protected classes from the common public enjoyment
of it. The zoning board or the fine arts commission may bar
the owner from building a restaurant on it, and the police
may not allow him to operate a disorderly house.
Property ‘‘rights,’’ in short, are subject to constraints im-
posed by law. Those constraints may be the more easily im-
posed when, as was said of the open-air mall in Jean Coun-
try, supra, it ‘‘has, and is intended to have, certain quasi-pub-
lic characteristics.’’ Such traits, the Board stated, ‘‘tend to
lessen the private nature of the property, because it is appar-
ent that the public is extended a broad invitation to come on
the property, and not necessarily with the specific purpose of
purchasing a particular product or service.’’ This is, of
course, no less true of an enclosed mall.5
In Jean Country, the Board noted that, although the mall
manager had testimonially referred to no-solicitation rules, no
such rules had been placed in evidence. The Board said that
it assumed that owners ‘‘have rights in some degree to con-
trol access to the property during business hours and to con-
trol the public’s conduct on the property,’’ but it did not pur-
sue the matter further because ‘‘no pertinent regulations have
been put before us.’’ In the instant case, as noted, the secu-
rity manual bars the ‘‘distribution of written materials,’’6 al-
though a tenants’ manual does not contain similar language
(the closest wording being a prohibition of ‘‘canvassing, so-
liciting, or peddling’’). While the rules in the security manual
are supposed to be posted at all entrances, they have not
been, as earlier noted.
It is somewhat difficult to understand how the ‘‘strength’’
of a property right is measured by judging the degree to
which the property holder attempts to regulate use of the
property. A tenant’s property right would seem to have no
more and no less ‘‘strength’’ by virtue of the tenant’s deci-
sion to keep the public away or invite it in. The Board, how-
ever, has given substantial weight to the use to which the
property is put, as seen above; perhaps it means, by referring
to the ‘‘strength’’ of a property right, the intensity or neces-
sity of the property holder’s desire to exercise its power to
exclude or invite strangers.
What weight the Board would assign to an unposted rule
prohibiting the distribution of written materials is not clear.
The primary purpose of such a rule would seem to be the
maintenance of an unlittered shopping area, and the evidence
shows that the handbillers in this case were instructed to pick
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Accordingly, I rejected certain studies which Galleria marketing manager
Umstead purportedly had reviewed and which are said to show that ‘‘solicita-
tion has a negative impact on shoppers.’’ The possibility that handbilling
‘‘hurts sales,’’ as counsel argued, is of no more consequence than the possi-
bility that lawful picketing might adversely affect business. Moreover,
handbilling limited to the Laurel store is likely to minimize any negative im-
pact on other stores in the mall.
8 In its affirmance of the latter case, Sentry Markets, Inc. v. NLRB, 914 F.2d
113 (7th Cir. 1990), the court erred in stating that in Montgomery Ward &
Co., 265 NLRB 60 (1982), ‘‘the Board held struck product consumer
handbilling to be of the highest ‘nature and strength.’’’ See ibid., Board deci-
sion, final paragraph.
9 On brief, Respondents advance four special contentions to dilute the Sec-
tion 7 right involved here; I reject them all.
The first argument—that the ‘‘Escada dispute is remote to the Galleria’’—
is, economically, untrue. Escada leases space in the Galleria and sells its im-
ported goods there under the store name ‘‘Laurel.’’ The Laurel store is thus
closely involved in the dispute.
The second argument is that the leaflets deserve no protection because they
contain untruths. The first ‘‘untruth’’ Respondents assert is that one handbill
states, ‘‘We Escada workers are on strike . . .,’’ while in fact none of the
handbillers were Escada employees. Whether such an untruth would be impor-
tant is beside the point here, since the handbill is not, in fact, misleading—
the handbillers did not purport to be Escada employees, but rather their agents;
the handbill is signed by ‘‘The Escada Workers’ Strike Committee,’’ which
is obviously the group that ‘‘We Escada workers . . .’’ refers to.
Third, Respondents point to the fact that the other handbill states that the
strike ‘‘has successfully shut down Escada’s U.S. importing operation.’’ But
the fact on which Respondents rely for this argument—a stipulation that the
strike ‘‘did not completely shut down Escada’s import operations’’—is a far
cry from definitively giving the lie to the handbill claim. In any event, the
substantive value of the contention seems to be of little moment.
Finally, Respondents, citing Hardee’s Food Systems, 294 NLRB 642,
(1989), enfd. sub nom. Laborers’ Local 204 v. NLRB, 904 F.2d 715 (D.C. Cir.
1990), argue that there were many other sites at which the Union could have
handbilled. But Hardee’s is factually different because there the union’s effort
was to handbill the locations of secondary employers substantial distances
away from the primary situs of the primary employer. Moreover, the record
shows no other locations at which Escada and Laurel brands are sold exclu-
sively at a store leased by Escada; the evidence refers only to a few Ohio
stores which carry the Escada line, and gives no information as to the physical
characteristics of these sites.
10 At the cited page, fn. 18, the Board stated that it would be ‘‘an excep-
tional case’’ where use of the mass media should be considered a reasonable
alternative.
11 A unique, and telling, factor here is that the Respondents authorized the
Union to handbill at the Laurel store entrance for 25 days before ordering the
handbilling to stop. No reason was given at the hearing to explain the change
of heart other than testimony by an attorney for GJV that he was advised by
his client that the handbilling ‘‘did interfere with the operations of the mall.’’
up any leaflets thrown to the ground. Another purpose might
be to avoid annoyance to customers, but, as Jean Country
and its related cases show, prevention of such annoyance
simply cannot, given the proper circumstances, be raised as
a defense.7
In Jean Country, supra, the Board found (and it could
hardly conclude otherwise) that ‘‘strict maintenance of the
privacy of the mall property during business hours is not an
overriding concern and in fact is not generally desirable, be-
cause the presence of the public in large numbers is instrinsic
to the commercial goals of the lessees and Respondent
Brooks.’’ It went on to decide that, for this reason, the pri-
vate property right asserted against the picketing there is
‘‘quite weak in the circumstances.’’ Applying this rationale
and comparing the circumstances, it is not easy to detect a
distinction between picketing in front of a store in an open-
air mall and handbilling in front of a store in an enclosed
mall.
The ‘‘strength’’ of the right implicated in the handbilling
derives from its placement on the ‘‘spectrum’’ of Section 7
rights. The Section 7 activity engaged in here could be con-
sidered to ‘‘protest unfair labor practices,’’ which, in Jean
Country, the Board denominated as a ‘‘central’’ right, on a
par with ‘‘the right of employees to organize.’’ Since the
handbilling was directed against an outlet of Escada, the pri-
mary disputant, the Section 7 right being exercised would ap-
pear to be of the highest order. Even where handbilling is
simply called ‘‘struck product consumer handbilling,’’ the
Board has twice recently declared such activity to be the as-
sertion of a ‘‘relatively strong’’ Section 7 right. Mountain
Country Food Store, 292 NLRB 967 (1989); Sentry Markets,
296 NLRB 40 (1989).8
Given this precedent, it would follow that the scales tip in
favor of the Section 7 right.9
Left for consideration is the question of whether reason-
able alternative means were available to the Union to engage
in its protected activity. Where the intended audience was the
potential customers of the Laurel store, ‘‘[t]he single alter-
native worthy of extended consideration in these cir-
cumstances is the possibility of the Union’s communicating
its message from public property at the entrances to the
mall.’’ Jean Country, supra at 18.10 In concluding that such
communication was not a reasonable alternative, the Board
considered the dilution of the Union’s message caused by the
‘‘sheer physical distance’’ from the mall entrances to the
Jean Country store; the large number of other stores; and the
crowds of people coming onto the property at eight different
entrances.
Although the present facts are not as large in scale, a simi-
lar analysis produces a similar conclusion. While the dis-
tances from the mall entrances to the Laurel store are not as
great as those in Jean Country, the same basic problems
present themselves. Requiring the Union to convey its mes-
sage from public property would entail the use of at least
five handbillers at the different entrances. Shoppers who are
proffered the handbills outside the mall are probably more
likely to turn away from or to discard or disregard the mes-
sage, especially in inclement weather, as compared to receiv-
ing them in the dry and climate—controlled arcade. ‘‘An-
other consideration if the Union had to communicate its mes-
sages at the mall’s entrances, given the circumstances of this
case, is the chance that the Union might unintentionally en-
mesh neutral stores in its labor dispute with [Escada].’’ Ibid.
Moreover, as General Counsel points out, restricting the
handbilling would possibly prevent any communication of
the message to the many employees who work in the adja-
cent 40-story office building and who need not leave the
property to enter the Galleria, and to those customers who
enter through the parking garage.
As in Jean Country, a requirement of handbilling all po-
tential customers in order to reach the desired few, and the
possibility that the message may not as readily reach the de-
sired few by public property handbilling as by store entrance
handouts, together with the sensible desideratum of keeping
the dispute as narrowly confined as possible, point to the
conclusion that propagandizing from public property is not a
reasonably effective alternative means of communication.
Here, like Jean Country, we are considering a venue de-
voted to public use, a characteristic which the board has re-
ferred to as rendering the property right ‘‘quite weak’’ and
which considerably enervates claims based on privacy and
disruption;11 the exercise of a Section 7 right which the
819GALLERIA JOINT VENTURE
The record indicates that the handbilling had caused no incident or problem
serious enough to be memorialized in an incident report or other record.
I do not find the other occasions noted by the General Counsel to be sub-
stantial enough to affect the fundamental character of the property right here
or to warrant a charge of disparate treatment. While the Salvation Army does
engage in ‘‘solicitation,’’ it also likely does provide, in Respondents’ view, a
positive contribution to the Galleria’s image, holiday ambience, and, ulti-
mately, financial return, much like Christmas decorations. See Sentry Markets,
supra. The same may be said of the permission to allow solicitation for South
Carolina hurricane victims; it should be remembered that Marketing Manager
Umstead testified, without contradiction, that she has consistently refused to
allow Respondents’ own tenants to pass out flyers. It was undoubtedly the
wiser course of action to stand by in silence while the college-professor dem-
onstration lived out its short life (Respondents contend that the testimony
shows that the demonstration occurred off the mall property; I read the record
otherwise). Finally, the art and auto displays did not involve the presence of
strangers, and thus differed in an important respect from regular solicitation
or handbilling.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Board has labelled either ‘‘central’’ or ‘‘relatively strong’’;
and a case fairly made that other means of communication
are not nearly as effective as direct-store handbilling. Having
weighed these results, there seems to be no alternative under
the Jean Country principles and precedents to a conclusion
that Respondents’ refusal to allow the Union to continue
handbilling at the Laurel store violated Section 8(a)(1) of the
Act.
The remainder of the complaint refers to isolated instances
in which the handbillers, after being ordered out of the
Galleria, were allegedly required by security guards to refrain
from handbilling on what the guards assumed to be private
property. The guards, apparently in the mistaken belief that
the entire brick path surrounding the Galleria was private
property, assertedly required the union agents to remove
themselves from what was actually public property.
While the good faith of the guards does not constitute a
defense, it seems to me that the core of this case is the issue
of handbilling inside the mall, and not whether the guards
erred in knowing where the private/public demonstration line
should be drawn. There seems to be no doubt that Respond-
ent understands its obligation to refrain from interference
with the Union’s conduct on public property. I note that, on
February 20, after the handbillers were ejected from the mall
and took up positions outside, the Union and management,
using a property map, calculated where the Galleria border
ended and the public access area started outside of the main
entrance. That particular confusion has now been clarified. In
these circumstances, since the question as to whether the
Union was entitled to hand out pamphlets inside the mall has
also (at this stage, anyhow) been resolved, no statutory pur-
pose would be furthered by inquiring into whether Respond-
ents’ agents made isolated errors in distinguishing between
what constituted public and private property outside the
shopping center.
CONCLUSIONS OF LAW
1. Each of the Respondents 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 requiring that union handbillers cease from engag-
ing, in front of the Laurel store in the Galleria, in activity
protected under Section 7 of the Act, Respondents violated
Section 8(a)(1) of the Act.
THE REMEDY
As a remedy, I recommend that Respondents be ordered
to cease and desist from engaging in the unfair labor practice
found and to take certain affirmative action which will effec-
tuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondents, Galleria Joint Venture and St. Clair
Management Co., Cleveland, Ohio, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of the Union from distrib-
uting handbills within the Galleria mall in circumstances in
which Section 7 of the Act protects such activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the Galleria mall, Cleveland, Ohio, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of the no-
tice, on forms provided by the Regional Director for Region
8, after being signed by the Respondents’ authorized rep-
resentatives, shall be posted by them immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from receipt of this Order what steps the Respondents have
taken to comply.