Harco Asphalt Paving, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 2008

353 N.L.R.B. 661 (N.L.R.B. 2008)

HARCO ASPHALT PAVING, INC.
353 NLRB No. 74
661
Harco Asphalt Paving, Inc. and Laborers Interna-
tional Union of North America, Local Union No.
120, a/w Laborers International Union of North
America. Cases 25–CA–30352, 25–CA–30354,
25–CA–30355, 25–CA–30356, 25–CA–30357, 25–
CA–30359, and 25–CA–30370
December 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On March 6, 2008, Administrative Law Judge Mark D.
Rubin issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed limited cross-exceptions and an answering
brief. The Charging Party filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified and set forth in full below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 Although the Respondent filed exceptions to the judge’s finding
that it violated Sec. 8(a)(1) of the Act by threatening to obtain a re-
straining order against the Union’s agents, it did not articulate, either in
its exceptions or briefs, any grounds for reversing the judge. Accord-
ingly, we find, pursuant to Sec. 102.46(b)(2) of the Board’s Rules and
Regulations, that the Respondent has effectively waived these excep-
tions. See, e.g., Barstow Community Hospital, 352 NLRB1052 (2008),
citing Holsum de Puerto Rico, 344 NLRB 694, 694 fn. 1 (2005), enfd.
456 F.3d 265 (1st Cir. 2006).
We find no need to pass on whether other actions taken by the Re-
spondent in response to the presence of the Union’s agents in the area
of Harco Way on May 21 and 31, 2007, violated Sec. 8(a)(1) inasmuch
as the Board’s Order issued today approving the parties’ settlement in
Case 25–CA–30671, et al., fully addresses handbilling activity in the
areas along Harco Way.
3 We shall modify the judge’s recommended Order and substitute a
new notice to conform to our findings and to the Board’s standard
remedial language. We shall also delete the recommended provision
requiring the Respondent to mail letters to local police departments and
to a local school district. We find it unnecessary to pass on the General
Counsel’s request that the notice be read aloud to the Respondent’s
employees, as the Board’s Order in Case 25–CA–30671, et al., provides
for the reading of a substantially similar notice.
modified and set forth in full below and orders that the
Respondent, Harco Asphalt Paving, Inc., Indianapolis,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing union representatives who engage in
protected union activity to leave areas where the Re-
spondent has no property right to exclude trespassers,
threatening to call the police and calling the police to
remove union representatives from such areas, and
threatening to obtain a restraining order against union
representatives for this purpose.
(b) Engaging in photographic surveillance of our em-
ployees and union representatives attempting to commu-
nicate with them.
(c) Ordering employees to leave a jobsite in order to
avoid contact during their lunchbreak with union repre-
sentatives in areas where the Respondent has no property
right to exclude trespassers.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Indianapolis, Indiana, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 31, 2007.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD662
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT instruct union representatives who en-
gage in protected union activity to leave areas where we
have no property right to exclude trespassers, threaten to
call the police and call the police to remove union repre-
sentatives from such areas, and threaten to obtain a re-
straining order against union representatives for this pur-
pose.
WE WILL NOT engage in photographic surveillance of
our employees and union representatives seeking to
communicate with them.
WE WILL NOT order our employees to leave a jobsite in
order to avoid contact during their lunchbreak with union
representatives in areas where the Respondent has no
property right to exclude trespassers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
HARCO ASPHALT PAVING, INC.
Belinda J. Brown, Esq., for the General Counsel.
Michael L. Einterz, Esq., of Indianapolis, Indiana, for the Re-
spondent.
Neil E. Gath, Esq., of Indianapolis, Indiana, for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE
MARK D. RUBIN, Administrative Law Judge. These cases
were tried in Indianapolis, Indiana, on December 11, 2007,
based on charges filed against Harco Asphalt Paving, Inc. (Re-
spondent) by Laborers International Union of North America,
Local Union No. 120, a/w Laborers International Union of
North America (the Union or the Charging Party) on the fol-
lowing dates in 2007: June 19 (Case 25–CA–30370), June 5
(Case 25–CA–30359), and June 1 (all other cases). Amended
charges in all of the cases except Case 25–CA–30370 were
filed on July 30, 2007.1
The Regional Director’s consolidated complaint, dated Sep-
tember 28, 2007, alleges, in pertinent part, that the Respondent
violated Section 8(a)(1) by engaging in the following actions
in response to assertedly lawful handbilling engaged in by the
Union: instructed handbillers to leave the area; threatened to
call the police to have handbillers removed; called the police to
have handbillers removed; engaged in surveillance of the pro-
tected, concerted activities of the handbillers and employees;
instructed employees to physically remove handbillers; and
threatened to obtain a restraining order against the handbillers.
The complaint further alleges that the Respondent violated
Section 8(a)(1) at its jobsites by engaging in the following ac-
tions in order to prevent the Union’s representatives from
communicating with its employees: instructed union represen-
tatives to leave the area; threatened to call police to have union
representatives removed; called the police to have union repre-
sentatives removed; ordered employees to leave the jobsite; and
engaged in surveillance of the protected, concerted activities of
union representatives and employees.
The Respondent defends by maintaining as to certain hand-
billing that occurred in the area of its offices, that it was simply
asserting its private property rights. As to the allegations per-
taining to visits by union representatives to its jobsites, the
Respondent asserts that the burden is on the General Counsel to
prove that the Union’s agents engaged in handbilling were not
trespassing on property which the Respondent, admittedly, did
not own, and that the General Counsel failed to carry this as-
serted burden. Finally, the Respondent, admitting that it pho-
tographed the Union’s agents, denies that it engaged in any
surveillance of protected, concerted activity.
At the trial, the parties were afforded a full opportunity to
examine and cross-examine witnesses, to adduce competent,
relevant, and material evidence, to argue their positions orally,
and to file posttrial briefs. On the entire record, including my
observation of the demeanor of the witnesses, and after consid-
ering the briefs filed by the Respondent, the General Counsel,
and the Union I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged in the con-
struction industry as a provider of asphalt paving, concrete, dirt,
and maintenance services at its facility in Indianapolis, Indiana,
where it annually has received revenue in excess of $50,000 for
services provided to the State of Indiana, an entity engaged in
interstate commerce. The Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a

1 During the course of the hearing, the Respondent, the Union, and
the General Counsel reached an informal settlement agreement in re-
spect to Cases 25–CA–30354 and 25–CA–30355, which I approved on
the record as it served to effectuate the purposes of the Act. The issues
decided in this decision were those not settled. The settled allegations
consist of complaint pars. 5(b), 6(a) and (b), and 8.
HARCO ASPHALT PAVING, INC. 663
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The substantive events described below occurred in the con-
text of the Union’s attempt to distribute handbills near the of-
fices of the Respondent, a nonunion contractor, and to visit
jobsites where the Respondent was engaged in work. Much of
the factual background was either stipulated to by the parties or
is undisputed.
Respondent’s Premises and Surrounding Property
The Respondent’s offices and work facility are located at
1650 Harco Way, in Indianapolis. Harco Way is an east/west
street, privately owned by the Respondent, beginning at a “t-
intersection” with Harding Street, a main thoroughfare, and
with no other public street access. Various businesses, unre-
lated to the Respondent, occupy the north and south side of
Harco Way, including the “Classy Chassis,” apparently an en-
tertainment venue, at the northwest corner of Harco Way and
Harding, a truck wash on the south side of Harco Way, ap-
proximately opposite of the Classy Chassis, and a motel and
parking area on the south side of Harco Way, separated from
the truck wash to the east by a small grassy area. The Respon-
dent’s offices are located on the north side of Harco Way, west
of the Classy Chassis and separated from the Classy Chassis
parking area by a large grassy area. Harco Way is the only
street providing ingress or egress to the Respondent, and to the
truck wash and the motel.2 An easement to Harco Way exists,
but is not detailed in the record.3
In addition to owning the street Harco Way, the Respondent
owns the parcel of property its business is located on, and owns
other parcels of property west and south of its offices. While
the Respondent owns the street Harco Way, it does not own the
property where the motel and truck wash are located on the
south side of Harco Way, the property on the north side of
Harco Way opposite the truck wash and motel, or the property
occupied by the Classy Chassis.4
May 21; Harco Way
On May 21, Union Organizers James Daniels and Brian
Short5 arrived in the vicinity of Harco Way at about 6:15 a.m.
and began distributing handbills prepared by the Union, as part

2 These facts were stipulated to by the parties, by exhibit and verbal
stipulation. Indeed, most facts found herein were stipulated to by the
parties during the hearing. The Respondent maintains in its counsel’s
brief that “the relevant facts have been stipulated to by the parties,
eliminating the need for credibility determinations.”
3 The parties stipulated that “on Harco Way there is an ingress/egress
easement,” but the record contains no further detail.
4 Stipulated by the parties, as part of GC Exh. 2. In its brief, the Un-
ion asserts that “all of the property depicted in GC Exh. 5 allegedly
belongs to Harco. . . .” The stipulation, however, was that “the high-
lighted areas are owned by Harco. . . .” Thus, the stipulation does not
demonstrate that all of the property depicted in the exhibit belongs to
the Respondent, but that the property not highlighted, occupied by the
Classy Chassis, the motel, and the truck wash, does not belong to the
Respondent.
5 Daniels and Short are employed by the Union.
of its campaign to organize the nonunion Respondent.6 Ini-
tially, Daniels and Short generally stood in the grassy area
separating the motel from the truck wash on the south side of
Harco Way, a distance from the Respondent’s offices, further
west. Daniels and Short proffered handbills to passing motor-
ists, including the Respondent’s employees, and when a vehicle
stopped, they stepped onto the pavement to hand a handbill to
the motorist, then stepped back onto the grassy area.7 Later,
they moved across the street to the north side of Harco Way, in
the grassy area next to the Classy Chassis, still well east of the
Respondent’s offices, and engaged in the same activity.
Daniels and Short passed out about 15 to 20 handbills in total.8
Between 7 and 7:15 a.m., the Respondent’s office manager,
Cindy Sartain, drove by Daniels and Short, and stopped her
vehicle about 10 feet past where they were standing. Short
stepped into the street towards Sartain’s vehicle and offered a
handbill to her. Sartain opened her window and asked what the
handbill was. Short responded, “Just information.” Sartain
rolled up her window and drove a few feet, and then did a “u-
turn” back towards Daniels and Short, stopped again, and ex-
ited her vehicle. Then, the parties stipulated and I find, Sartain
instructed Daniels and Short to leave the area, threatened to call
the police to have them removed from the area, and called the
police to have Daniels and Short removed. Some of Sartain’s
words to Daniels and Short were aggressive and obscene.9
When Sartain exited her car, the union representatives began

6 There is no other evidence as to the contents of the handbill other
than it was part of the Union’s organization campaign and that the
organizers distributed the handbills to the Respondent’s employees,
among others.
7 Credited testimony of Daniels.
8 Credited testimony of Daniels and Short who, in my observation,
demonstrated the testimonial demeanor of witnesses truthfully testify-
ing. This testimony is generally uncontroverted. The Respondent’s
office manager, Cindy Sartain, testified that when she first observed
Daniels and Short, they were standing on the pavement. This testimony
does not controvert the testimony of Daniels and Short to the effect that
they generally remained on the grassy area, with brief forays into the
street. To the extent that it does, and for the reasons discussed below, I
do not credit Sartain as to this testimony. Daniels credibly testified that
Sartain initially pulled her car up in the street lane next to the grassy
area and “she kind of blocked us right there.”
9 The Respondent essentially stipulated to par. 5, subpars. (i), (ii),
and (iii) of the complaint. The actual testimony of Sartain, Daniels, and
Short differs as to how vociferously Sartain expressed herself and
whether or not she used obscenities. Sartain described herself as fright-
ened. The testimony of Daniels and Short both as to the language
Sartain used and her aggressive manner would indicate to the contrary.
I credit the testimony of Daniels and Short as to Sartain’s manner and
words and find that Sartain, in fact, was not frightened by the appear-
ance and actions of Daniels and Short. Thus, I find, that Sartain told
Daniels and Short that “they were non-union, that they didn’t want us
union mother-fu— there, that we were trespassing, and that she was
going to call the cops.” Both Daniels and Short, by demeanor, good
recollection of various events, and demonstrated proclivity to fully
answer the questions of all counsel, displayed the traits of truthful
witnesses. Sartain was less impressive. She appeared uncomfortable
on the witness stand and less willing to engage the questions of oppos-
ing counsel. Most of the facts found herein were either stipulated to or
were uncontroverted. Any other facts found are based on the credited
testimony of Daniels and Short for the reasons stated above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD664
videotaping. Sartain used her cell phone to take photos of
Daniels and Short and then to call the Indianapolis Police De-
partment.
At some point during the confrontation, a pickup truck with
Harco markings on the door and four occupants, drove past
Sartain, Daniels, and Short. Sartain yelled towards the truck to
pull over and wait for the police.10 The truck pulled over into
the truck wash, faced the vehicle north towards Harco Way,
and parked.
An Indianapolis Metropolitan Police squad car arrived on the
scene about 7:15 to 7:30 a.m., and pulled into the truck wash
parking area. Sartain walked to the police car and told the offi-
cer that Daniels and Short were trespassing.11 The police offi-
cer walked over to Daniels and Short. Short handed him a
handbill. The officer said he didn’t need to see the handbill,
and that Daniels and Short were trespassing. The organizers
replied that they were on public property because there was an
easement. The officer replied that they were on private prop-
erty and needed to leave.12 The officer added that if they re-
turned, they would be arrested.13 Daniels and Short proceeded
to their vehicle and left the area.
May 31; Harco Way
On May 31, union organizers returned to the Harco Way area
and resumed handbilling. This time organizers Daniel and
Short, were accompanied by fellow organizers Chris Guerrero
and Joe Hardwick. The organizers arrived at about 6:15 a.m.,
and positioned themselves on the grassy area between Harco
Way and the Classy Chassis, on the north side of Harco Way.
The organizers held out handbills to passing vehicles on Harco
Street and then stepped onto the street to hand handbills to mo-
torists who stopped. They also distributed handbills to some
motorists on Harding Street. Sartain drove up at about 6:40
a.m., and parked on the corner of Harco Way and Harding
Street, near where the organizers were standing.
The parties stipulated, and I find, that Sartain instructed the
organizers to leave, threatened to call the police to have the
organizers removed from the area, called the police to have the
organizers removed from the area, threatened to obtain a re-
straining order against the handbilling by the organizers, and
photographed the organizers. The parties also stipulated, and I
find, that the Respondent’s superintendent, Charlie McClellan,
photographed the organizers while they were engaged in the
handbilling.
On both May 21 and 31, during the handbilling, other vehi-
cles, unrelated to the Respondent or its employees, traveled
Harco Way to access other businesses. The organizers testified

10 Daniels testified that Sartain yelled towards the truck to pull over,
“to get us off the property.” Short testified that she yelled, “Stop, pull
over, and wait for the police to come.” Short, in his testimony, ap-
peared to directly quote Sartain, while Daniels did not. I conclude as to
this testimony that Short is more reliable.
11 Credited testimony of Daniels who testified he was able to hear
this part of the conversation.
12 In the transcript, Short appears as having testified that the officer
used the words “public property.” If he did so testify, he used the
words inadvertently. Clearly he meant to testify that the officer used
the words “private property,” and I so find.
13 Credited and uncontroverted testimony of Daniels.
that Sartain did not talk to these drivers, nor did they observe
her call the police in respect to those vehicles.
At about 7 a.m. the police arrived, asked the organizers for
identification, and told them that they were trespassing and
were banned from the property. Daniels told the police that the
organizers disagreed that they were trespassing, that they had
plats and deeds and believed they were in an easement. The
police responded that the organizers were banned from the
property, that they were never to come back, and would be
arrested for trespassing (if they did). At these instructions, the
organizers departed and have not been back since.
June 1; Avon, Indiana
On June 1, Daniels, Hardwick, and Guererro traveled to the
Cedar Lake Elementary School, in Avon, Indiana, a western
suburb of Indianapolis. According to Daniels’ testimony, the
purpose of the trip was to provide a pizza lunch to union-
represented employees of a union contractor and to employees
of the Respondent, both of which groups were working on a
project at the public school. The organizers arrived at the
school at about 11:30 a.m., parked on a drive behind the school,
but discovered that the union contractor was not on the job that
day. The organizers shouted at the Harco employees, about 75
feet away, that when they were on their lunchbreak, they were
welcome to “come over and eat pizza.” The Respondent’s
employees walked over to where the organizers parked and ate
the pizza provided by the organizers.
At about noon, McClellan arrived at the scene, and told his
employees to go to lunch and leave immediately.14 The parties
stipulated, and I find, that McClellan instructed the organizers
to leave the area, threatened to call the police to have them
removed, called the police to have them removed, and photo-
graphed the organizers.
About 15 minutes after McClellan arrived, Avon police cars
arrived on the site, sirens on, wheels squealing.15 An officer
asked the organizers who was fighting. One of the organizers
responded that there was no fighting. One of the officers asked
if the organizers had a “beef” with McClellan. Daniels said,
“No.” An officer requested their driver licenses, and told the
organizers to sit on the curb while they spoke to McClellan.
The officers spoke to McClellan and the construction manager
for the general contractor, and then told the organizers that they
were not wanted on the property, that the general contractor
didn’t want them there, and that they were to leave. The organ-
izers thereupon left, at about 1 p.m. The Harco employees had
returned to the jobsite from lunch while the police were check-
ing the organizers’ driver’s licenses, and were on the jobsite
when the organizers departed.
June 4; Perry Meridian High School
The parties stipulated, and I find, that on June 4, Dan Dennis,
acting under the instructions of the Respondent’s owner, Paul
Harding, instructed the Union’s representatives to leave the
Perry Meridian High School jobsite, where the Respondent was

14 Credited testimony of Hardwick. Daniels, whose testimony is
similar, but not identical to Hardwick’s, seemed less sure of the exact
words used by McClellan, who did not testify.
15 Credited testimony of Daniels and Hardwick.
HARCO ASPHALT PAVING, INC. 665
performing a contract, threatened to call the police to have the
Union’s representatives removed from the area, and that Sartain
called the police to have them removed. The record is devoid
of other evidence as to this incident.
June 18; Avon, Indiana
On June 18, organizers Hardwick, Guerrero, and Daniels
again traveled to Avon, this time to visit a project the Respon-
dent was working on, located on a public trail behind the Avon
town hall. The purpose of the visit was to “see how far along
the job was.”16 The organizers encountered a number of people
leisurely walking on the trail, and McClellan working on a
backhoe. The parties stipulated, and I find, that McClellan
threatened to call the police to have the organizers removed.
McClellan asked the organizers if they were planning on work-
ing a “half-day,” and told them he was going to call the police.
The organizers told McClellan that they weren’t out there to
speak to his employees, and they departed. On this occasion,
the organizers did not handbill, did not carry picket signs, and
did not speak to the Respondent’s employees.
Analysis and Conclusions
May 21 and 31; Harco Way Incidents
The General Counsel alleges that Sartain’s and the Respon-
dent’s actions on May 21 and 31 in instructing the Union’s
organizers to leave, threatening to call the police, calling the
police to have them removed, and instructing employees to
physically remove the organizers (May 21) violated Section
8(a)(1) of the Act. The General Counsel and the Union argue
that the Respondent has failed to establish a sufficient property
interest to exclude individuals from the property in question.
The Union further argues that the easement on Harco Way
demonstrates that the Respondent had no property interest suf-
ficient to exclude the public, including the organizers. Con-
trariwise, the Respondent asserts that it is the General Counsel
who maintains the burden to demonstrate that “the Union repre-
sentatives were not trespassing on Respondent’s property,” and
that the General Counsel failed in carrying such burden.
“The Board has stated that in cases in which the exercise of
Section 7 rights by nonemployee union representatives is as-
sertedly in conflict with a respondent’s private property rights,
there is a threshold burden on the respondent to establish that it
had, at the time it expelled the union representatives, an interest
which entitled it to exclude individuals from the property [em-
phasis in original].” Indio Grocery Outlet, 323 NLRB 1138,
1142 (1997), quoting Food For Less, 318 NLRB 646, 649
(1995). Absent such a showing, there is no conflict between
competing rights requiring an analysis and an accommodation
under Lechmere, Inc. v. NLRB, 502 U.S. 527, 538 (1992). In-
dio Grocery Outlet, supra.
Here, as noted, the facts are largely undisputed. The Union’s
organizers were utilizing handbilling in order to contact the
Respondent’s employees as part of its organizing drive. The
street, Harco Way, is private property belonging to the Respon-
dent, but there is no evidence, nor does the Respondent con-
tend, that the Respondent had any property interest in the

16 Credited testimony of Daniels.
grassy areas abutting the street, at least in the areas where the
Union’s organizers spent most of their time standing, walking,
and offering handbills to passing motorists. While the organiz-
ers did spend brief moments venturing into the street to hand
their handbills to passing motorists who had stopped, the Re-
spondent did not simply seek the organizers removal from its
property, the street, but sought the organizers removal from the
entire area.17 Inasmuch as the Respondent instructed the organ-
izers to leave the area, and threatened to and did call the police
to accomplish such, in circumstances where it had no assertable
interest in the property where the organizers spent most of their
time, and where the Respondent did not limit its actions to
property where it did have such an interest, I conclude that the
Respondent’s actions violated Section 8(a)(1). Indio Grocery
Outlet, supra.18
Inasmuch as the record is devoid of evidence detailing the
easement19 on Harco Way, there is no basis to determine
whether, under Indiana law, said easement is sufficient to pre-
clude the Respondent from asserting a sufficient property right
in respect to the street itself. However, since I found that the
handbillers spent all but a small portion of their time in areas
where the Respondent had no assertable property interest, and
that the Respondent’s actions alleged as violations were di-
rected to expulsion of the organizers from the entire area, and
not just the area where it asserts a private property claim, I have
concluded that the Respondent’s actions violated the Act.20
Further, I conclude that the Respondent did not violate the
Act by, assertedly, instructing “employees to attempt to physi-
cally remove Local 120 handbillers.” Here, the General Coun-
sel presented two witnesses with contrary testimony as to what
Sartain shouted to employees driving by the organizers. I cred-
ited Short who testified that Sartain simply shouted instructions
to pull over and wait for the police to arrive. Accordingly, I
conclude that the Respondent did not violate Section 8(a)(1) as
so alleged.

17 I found this to be a fact, based on the parties’ stipulations.
18 The Board’s decision in Hoschton Garment Co., 279 NLRB 565
(1986), cited by the Respondent in its brief, is inapposite. In
Hoschston, the union organizers were trespassing on the employer’s
property.
19 The General Counsel and the Union seem to hint on the record,
and in their briefs, that the easement is for the general public to reach
the businesses located on Harco Way. The Respondent, in its brief,
says that “the motel and truck wash are party to an ingress/egress ease-
ment.” But there is no evidence in the record establishing whom the
easement runs to or its details. The following exchange between my-
self and the counsel for the General Counsel occurred on the record as
to a stipulation that an easement exists on Harco Way: Ms. Brown—
“on Harco Way there is an ingress/egress easement.” Judge Rubin—
“An ingress/egress easement?” Ms. Brown—“Yes, sir.” Judge
Rubin—“And is there any further description of the easement?” Ms.
Brown—“No, just ingress/egress easement, and it is listed on GC Exh.
5.” Utilizing a magnifying glass to attempt to read the fine print on
Exh. 5, it appears that the following notation appears on Harco Way:
“Driveway and Ingress/Egress easement.”
20 Thus, even in a situation where union representatives were tres-
passing, an employer couldn’t seek their removal from other areas
where the employer had no assertable property interest. Food For Less,
supra at fn. 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD666
As to the surveillance allegations, the General Counsel ap-
parently points to the stipulations that Sartain photographed the
organizers on May 21 and 31, and McClellan on May 31.21
The Respondent, in its brief, argues “the union representatives
may not complain of surveillance when they are conducting
their activities in the open,” and that “this is particularly true
where . . . the union representatives chose to engage in their
activities while trespassing on the employer’s premises.” In
Roadway Package System, 302 NLRB 961 fn. 1 (1991) (cita-
tions omitted), in circumstances where photography was not
involved, the Board held, “it is well settled that where . . . em-
ployees are conducting their activities openly on or near com-
pany premises, open observation of such activities by an em-
ployer is not unlawful.”
The Board, in F. W. Woolworth Co., 310 NLRB 1197
(1993), set forth fundamental principles governing employer
surveillance of protected, employee activity. “The Board in
Woolworth reaffirmed the principle that an employer’s mere
observation of open, public union activity on or near its prop-
erty does not constitute unlawful surveillance. Photographing
and videotaping such activity clearly constitute more than mere
observation, however, because such pictorial recordkeeping
tends to create fear among employees of future reprisals. The
Board in Woolworth reaffirmed the principle that photograph-
ing in the mere belief that something might happen does not
justify the employer’s conduct when balanced against the ten-
dency of that conduct to interfere with employees’ right to en-
gage in concerted activity.” National Steel & Shipbuilding Co.,
324 NLRB 499 (1997) (citations omitted).
Here, the Respondent didn’t merely observe union activities
taking place in the open, but photographed those activities.
Sartain, who photographed the handbillers with her cell phone
camera, testified she was in fear when she took the photo-
graphs. However, there is no credible evidence in the record
which would support such an asserted fear. The only activity
that took place was peaceful handbilling by a very limited
number of handbillers. Nor does the Respondent contend in
brief or argument at the hearing, that the photography of Sartain
or McClellan22 was justified by any perceived danger or under-
taken to document alleged trespass, and there is no credible
evidence of such.
The Respondent’s taking of photographs of the handbillers,
would clearly serve to chill any prospective attempts by the
Respondent’s passing employees to either obtain a handbill or
speak to the organizers, both of which were the stated purposes
of the organizer’s handbilling. Thus, under the instant circum-
stances, I find that by taking photographs of the Union’s organ-
izers on May 21 and 31, the Respondent engaged in surveil-
lance, and violated Section 8(a)(1) of the Act.23
Finally, as to May 31, the complaint alleges that the Respon-
dent violated Section 8(a)(1) when Sartain threatened the or-

21 The General Counsel’s brief does not address the surveillance al-
legations other than to assert that Sartain photographed the handbillers
and the Respondent apparently, therefore, engaged in surveillance.
22 McClellan did not testify. The parties stipulated that he photo-
graphed the organizers on May 31.
23 See fn. 18.
ganizers that she would obtain a restraining order. The Board
has long held that the threat to file a lawsuit, as opposed to the
filing of a lawsuit, violates the Act. S. E. Nichols Marcy Corp.,
229 NLRB 75 (1977); Auto Workers Local 651 (General Mo-
tors Corp.), 331 NLRB 479 fn. 1 (2000). Here, Sartain’s threat
to seek a restraining order, together with her other actions and
threats, was designed to prevent the organizers from attaining
their objective of reaching the Respondent’s employees with
their message. Under these circumstances, and in the context
of the other findings herein, I conclude that Sartain’s threat to
seek a restraining order violated Section 8(a)(1) of the Act.
June 1, 4, and 18
On June 1, 4, and 18, the interactions between the Respon-
dent and the organizers alleged as violations of Section 8(a)(1),
occurred on public property, which the Respondent claims no
ownership interest in.24 I found that on June 1, McClellan in-
structed the organizers to leave the area, threatened to call the
police to have them removed, called the police to have them
removed, and photographed the organizers. I further found that
on June 4, Dan Dennis, acting under the instructions of the
Respondent’s owner, Paul Harding, instructed the Union’s rep-
resentatives to leave the Perry Meridian High School jobsite,
where the Respondent was performing a contract, threatened to
call the police to have the Union’s representatives removed
from the area, and that Sartain called the police to have them
removed. Finally, I found that on June 18, McClellan threat-
ened to call the police to have the organizers removed from the
area.
Inasmuch as on all three occasions, the Respondent pos-
sessed no property interest in the public school or public trail
sites where the confrontations occurred, I find that the Respon-
dent has failed to meet its threshold burden of demonstrating
that it maintained a property interest which entitled it to ex-
clude individuals from the property. Indio Grocery Outlet,
supra. Accordingly, I conclude that the Respondent violated
Section 8(a)(1) of the Act on June 1, 4, and 18 by instructing
the organizers to leave, threatening to call the police to have the
organizers removed, and calling the police, and by photograph-
ing the organizers and, thus, engaging in surveillance on June
1.25

24 In his brief, the Respondent’s counsel argues that the Avon Cedar
Elementary School jobsite, where the June 1 actions alleged as 8(a)(1)
violations occurred, is owned by Avon Community School Corpora-
tion, a public corporation, that property owned by a public corporation
is not public property in Indiana, and that the organizers did not have
permission from the public corporation to enter the property. While the
record is devoid of evidence as to the legal status of the Avon Commu-
nity School Corporation, the record is uncontroverted that the Respon-
dent maintained no private property interest in the site. Thus, when it
engaged in the admitted actions alleged as 8(a)(1) violations, the Re-
spondent had no private property rights which entitled it to eject or seek
the ejection of the organizers. Indio Grocery Outlet, supra.
25 As to the June 18 incident, which occurred on a public trail, the
Respondent argues in its brief, that “there was no testimony that the
organizers were visiting the trail as a result of their employment with
the Union,” seemingly implying that, perhaps, they were there on a lark
or just to enjoy a walk on the trail. But as the Respondent also ac-
knowledges in its brief, Daniels testified that the organizers visited the
HARCO ASPHALT PAVING, INC. 667
The complaint further alleges that on June 1, the Respondent
also violated Section 8(a)(1) by ordering employees to leave the
jobsite. I found that when McClellan saw some of the Respon-
dent’s employees eating pizza with the organizers, he told the
employees to leave immediately and go to lunch, which they
did. While it’s not clear whether or not the Respondent’s em-
ployees were on their lunchbreak when they were eating the
Union’s pizza, it is clear that McClellan was ordering them to
go to lunch, away from the organizers. Inasmuch as the obvi-
ous purpose of giving such orders to the Respondent’s employ-
ees was to preclude any contact with the organizers, even in-
cluding during their lunchbreak, I find that the Respondent,
thus, coerced and interfered with employees in their exercise of
Section 7 rights, and violated Section 8(a)(1). See Holiday Inn-
JFK Airport, 348 NLRB 1, 3 (2006).
CONCLUSIONS OF LAW
1. The Respondent is 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 the following actions, on the dates set forth below, the
Respondent has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.

site to see how far along the Respondent was in performing its contract.
Clearly this visit was an action in furtherance of the Union’s attempt to
organize the Respondent’s employees, and the Respondent’s threat to
call the police was an effort to combat the organizational drive, and to
preclude whatever contact between the organizers and the Respondent’s
employees might occur as a result of their visit.
(a) On May 21 and 31, June 1 and 4, 2007, instructing repre-
sentatives of the Charging Party to leave the area.
(b) On May 21 and 31, June 1, 4, and 18, 2007, threatening
to call the police to have representatives of the Charging Party
removed from the area.
(c) On May 21 and 31, June 1 and 4, 2007, calling the police
to have representatives of the Charging Party removed from the
area.
(d) On May 21, 31 and June 1, 2007, engaging in surveil-
lance of representatives of the Charging Party and its employ-
ees, by taking photographs of the representatives of the Charg-
ing Party.
(e) On May 31, 2007, threatening to obtain a restraining or-
der against representatives of the Charging Party.
(f) On June 1, 2007, ordering employees to leave a jobsite in
order to avoid contact with representatives of the Charging
Party.
4. The unfair labor practices set out in paragraph 3, above,
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
5. The Respondent, in no manner other than that specifically
found herein, including any other manner alleged in the com-
plaint, has violated the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) of the Act, as
is set forth above, it will be ordered to cease and desist there-
from and from any like or related conduct. It will also be or-
dered that the Respondent post a remedial notice.
[Recommended Order omitted from publication.]