Richards United Super

National Labor Relations Board - Board Decisions

Aug 11, 1992

308 N.L.R.B. 201 (N.L.R.B. 1992)

201
308 NLRB No. 43
RICHARDS UNITED SUPER
1 On March 10, 1992, Administrative Law Judge James S. Jenson
issued the attached decision. The General Counsel and the Union
each filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Susquehanna United Super Inc. d/b/a Richards
United Super and United Food and Commer-
cial Workers Union, Local 576, affiliated with
United Food and Commercial Workers Inter-
national Union, AFL–CIO, CLC. Case 17–CA–
15661
August 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue presented in this case1 is whether the Re-
spondent violated Section 8(a)(1) of the Act by de-
manding that representatives of the Union cease pick-
eting on traffic islands in the parking lot in front of
its store and by causing the arrest of the representa-
tives.
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 only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by demanding that the
Union’s nonemployee pickets leave the traffic islands
in the parking lot in front of the store and by causing
the arrest of the pickets. Ostensibly applying the analy-
sis set forth by the Supreme Court in its decision in
Lechmere, Inc. v. NLRB, 111 S.Ct. 1305 (1992), the
judge concluded that the Union lacked a derivative
right under Section 7 since it neither represented, nor
sought to organize or contact, the Respondent’s em-
ployees. The judge therefore found that the Respond-
ent’s property right did not have to yield to the
Union’s picketing activities and accordingly dismissed
the complaint.
We find, contrary to the judge, that the Respondent
violated Section 8(a)(1) of the Act by prohibiting the
peaceful picketing of the Union’s representatives and
by causing the arrest of those representatives. As ex-
plained below, we base this finding, however, on the
Respondent’s disparate treatment of union activity.
The facts are undisputed. The Respondent operates
a retail grocery store located in a strip shopping mall.
The grocery store is the anchor tenant in the mall. All
of the stores share a common paved parking lot situ-
ated between the mall and a state highway. Three ob-
long traffic islands are located in the parking lot par-
allel to the sidewalk in front of the store.
The Respondent and the Union had a collective-bar-
gaining relationship for many years covering separate
units of clerks and meat department employees. The
most recent agreement expired on January 10, 1989. In
April 1989, during negotiations, the Union commenced
a picket and handbilling campaign protesting the Re-
spondent’s bargaining proposals and encouraging the
public not to shop in the Respondent’s store. Initially,
the Union handbilled and picketed at the store’s front
doors. Following several confrontations between the
pickets and management, however, the Union moved
the pickets to the two islands nearest the store en-
trance.
By letter dated April 5, 1989, the then-owner of the
mall notified the Union that it objected to the picketing
and that it had granted the Respondent the authority to
have the pickets removed from the property. The
Union moved its picketing activity to the gravel right-
of-way next to the highway. By letter dated June 22,
1989, the property manager for the shopping center
granted the Union the ‘‘right to picket and disperse in-
formation’’ to customers at the traffic islands in front
of the store. The Union resumed its picketing and
handbilling, but confined the activity to the traffic is-
lands.
On April 6, 1990, pursuant to Board-conducted elec-
tions, the Union was decertified as the bargaining rep-
resentative of employees in both units. Subsequently,
the Union moved its picketing activity to the gravel
right-of-way. In addition to carrying signs requesting
customers not to shop at the Respondent’s nonunion
store, the union representatives staked picket signs into
the right-of-way.
Sometime before July 26, 1990, ownership of the
mall changed, and the new owners granted the Re-
spondent’s owners, Tom and Jane Richards, authority
to request any person or persons to leave the premises
of the mall if the Richardses determined at their discre-
tion that the activity interfered with the Respondent’s
or any other tenant’s business, to sign a complaint for
trespassing or disturbing the peace, and to have un-
wanted or abandoned automobiles towed from the
parking lot. This authority remains in effect.
By letter dated June 10, 1991, the Missouri High-
way and Transportation Department notified the Union
that it had received complaints from the Respondent
about the picket signs driven into the right-of-way.
Noting that a state ordinance prohibited installation of
signs on a highway right-of-way without permission,
the department requested that the Union refrain from
staking the signs. On the following day, officers of the
Independence police department visited the shopping
center and advised the pickets that they could not stake
the picket signs in the gravel right-of-way.
On June 12, 1991, the union representatives returned
to the traffic islands and commenced picketing. Shortly
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent also contacted the occupants of the surrounding
property and induced them to prohibit the picketers from parking
their vehicles in their parking lots.
3 The record shows that although the Respondent’s owners have
authority to limit access to the premises of the mall, there is no set
standard or policy for such a decision, and in fact the Respondent
has granted access to outside individuals and organizations for sales,
solicitations, and distributions but singled out the Union for proscrip-
tion.
4 We therefore find it unnecessary to engage in an accommodation
analysis of the Sec. 7 and property rights.
5 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
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.’’
thereafter, the police arrived at Richards’ request and
arrested the pickets for trespass.2
The parking lot and the other common areas of the
shopping center have been used, at all relevant times,
without objection by various nontenant individuals and
organizations to advertise items for sale, solicit dona-
tions, conduct fundraising activities, and to park for
extended periods of time. The Respondent has per-
mitted the Shriners, the Salvation Army, little league
baseball teams, and the Boy Scouts, among others, to
engage in fundraising activities in the parking lot and
at its entrance. Cars have been displayed and adver-
tised for sale in the parking lot. Various nontenant
businesses, including a donut shop, an auto repair
company, and an auto parts store, have placed leaflets
on the windshields of cars parked in the lot. School or-
ganizations also distributed handbills advertising fund-
raising events. In September 1989, Tom Richards
helped distribute handbills promoting an antique and
gun show.
In Davis Supermarkets, 306 NLRB 97 (1992), the
Board found a violation of Section 8(a)(1) where the
respondent allowed other organizations to solicit cus-
tomers on the sidewalk in front of its store but prohib-
ited union activity. The Board noted in Davis that the
Lechmere decision does not disturb the Court’s state-
ment in NLRB v. Babcock & Wilcox, 351 U.S. 105,
112 (1956), that ‘‘an employer may validly post his
property . . . if [it] does not discriminate against the
union by allowing other distribution.’’
In the instant case, the record clearly indicates that,
both before and during the time the Union sought to
picket on the traffic islands in front of its store, the
Respondent allowed other organizations unlimited ac-
cess to its parking lot for activity unrelated to its store.
The Respondent routinely permitted charitable and
civic organizations, such as the Shriners, the Salvation
Army, and a local Boy Scout troop, to solicit contribu-
tions and sell items outside its store. School organiza-
tions have also leafleted cars and used the parking lot
for fundraising purposes. Other nontenant businesses in
the area are permitted to place advertising leaflets on
cars in the parking lot. Automobiles with ‘‘for sale’’
signs posted in the windows are regularly parked in the
parking lot near the highway and left unattended for
days. At the same time, however, the Respondent has
denied the Union the use of the traffic islands in the
parking lot for protected activities.3 Under these cir-
cumstances, we find that the Respondent’s conduct
constituted unlawful disparate treatment of protected
union activity, in violation of Section 8(a)(1) of the
Act.4
CONCLUSION OF LAW
By discriminatorily demanding that representatives
of the Union cease their peaceful picketing on traffic
islands in the parking lot in front of its store and by
causing the police to arrest the representatives, the Re-
spondent has violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent, Susquehanna
United Super Inc. d/b/a Richards United Super, vio-
lated Section 8(a)(1) of the Act, we shall order it to
cease and desist and to take certain affirmative action
that will effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Susquehanna United Super Inc. d/b/a
Richards United Super, Independence, Missouri, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily prohibiting representatives of
United Food and Commercial Workers Union, Local
576, affiliated with United Food and Commercial
Workers International Union, AFL–CIO, CLC from
picketing on traffic islands in the parking lot in front
of its store by demanding that they leave the shopping
center premises and by causing the police to arrest the
representatives.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its store in Independence, Missouri, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
203RICHARDS UNITED SUPER
1 All dates are in 1991 unless stated otherwise.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminatorily prohibit representa-
tives of the United Food and Commercial Workers
Union, Local 576, affiliated with United Food and
Commercial Workers International Union, AFL–CIO,
CLC from picketing on the traffic islands in the park-
ing lot in front of our store by demanding that they
leave the shopping center premises and by causing the
police to arrest them.
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.
SUSQUEHANNA UNITED SUPER INC.
D/B/A RICHARDS UNITED SUPER
Stanley D. Williams, for the General Counsel.
Stanley E. Craven (Spencer, Fane, Britt & Browne), of Kan-
sas City, Missouri, for the Respondent.
Edward J. Houlehan (Houlehan & Waterman), of Kansas
City, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This case
was heard in Mission, Kansas, on November 13, 1991,1 pur-
suant to a complaint which issued on July 17. The complaint
alleges that the Respondent violated Section 8(a)(1) of the
Act by prohibiting peaceful picketing and causing the police
to arrest representatives of the Union for engaging in peace-
ful picketing on traffic islands located in the parking lot in
front of its facility. Relying on the Board’s decision in Jean
Country, 291 NLRB 11 (1988), the General Counsel argues
that the ‘‘Respondent’s narrow property interest must give
way to the Union’s Section 7 activity.’’ Acknowledging at
the hearing that my decision would be guided by Jean Coun-
try, Respondent claimed that case was wrongly decided and
that while it was permissible for the Union to picket on the
islands as long as it was the certified representative of its
employees, it lost that right when it was decertified on April
6, 1990.
All parties were given full opportunity to appear, to intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs. The General Counsel filed a
brief which has been carefully considered.
On the entire record, including the demeanor of the wit-
nesses, and having considered the posthearing brief, I make
the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted and found that Susquehanna United Super
Inc. d/b/a Richards United Super is a corporation engaged in
the operation of a retail grocery store in Independence, Mis-
souri; that its annual gross revenues exceed $500,000; that it
annually purchases and receives products, goods, and mate-
rials in excess of $50,000 directly from outside the State of
Missouri; and that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that United Food and Commercial
Workers Union, Local 576, affiliated with United Food and
Commercial Workers International Union, AFL–CIO, CLC is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
This case involves nonorganizational picketing by a decer-
tified union on parking lot islands in front of a retail grocery
store located in a shopping center. It does not involve the
protest of an employer’s unfair labor practices, area standards
picketing, or the self-organizational rights of employees out-
lined in Section 7 of the Act.‘
Arrowhead Center is a strip shopping mall located on
State Highway 24 1 mile east of State Highway 291 and a
half mile west of Kentucky Road, in Independence, Jackson
County, Missouri. Independence, with a population of
112,301, is in the northeastern section of the greater Kansas
City metropolitan area which encompasses five counties lo-
cated in Kansas and Missouri and which has a population of
1,566,280. Highway 24 running in front of the shopping mall
is a major east-west artery consisting of two lanes for each
direction and a center left-turn lane. The speed limit on
Highway 24 is 45 miles per hour. Cars traveling along High-
way 24 in an easterly direction enter Arrowhead Center by
turning right directly from the lanes of traffic without benefit
of a turn lane. Cars traveling west along Highway 24 use the
center left-turn lane to make the left turn into Arrowhead
Center. There are no traffic control signals to control traffic
making a left turn into the mall parking lot from either of
the two entrance driveways located on Highway 24. There is
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also an entrance to the parking lot at the rear of the mall
from Bundschu Road. Highway and Transportation Depart-
ment records for 1990 show that during a certain 24-hour pe-
riod, 26,583 vehicles were counted traveling east or west on
Highway 24 at the junction of Highway 291, and 21,451 ve-
hicles were counted traveling east or west on Highway 24 at
the intersection of Kentucky Road. The junction of Highways
24 and 291 is located approximately 1 mile to the west of
the shopping mall entrance closest to the Respondent’s store,
and the junction of Highway 24 and Kentucky Road is ap-
proximately a half mile to the east. Witnesses testified that
the flow of traffic on Highway 24 is heavy and often exceeds
the 45-mile-per-hour speed limit.
Arrowhead Center contains 24 store fronts, 12 of which
were occupied on June 12. The Respondent’s retail grocery
store is the anchor tenant in the mall, having a leasehold in-
terest. All the stores in the strip share a paved parking lot
between the mall and Highway 24 with approximately 350
marked parking spaces. The principal access to the parking
lot is via the two entrances from Highway 24. The record
does not disclose any pedestrian traffic into the mall, it ap-
pearing that all customers drive in and park in the common
parking lot.
Respondent’s market stands directly facing Highway 24.
There are three oblong islands located in the parking lot, par-
allel to the sidewalk in front of Respondent’s facility and
about 20 feet north of the sidewalk toward Highway 24.
The Respondent and the Union have had a collective-bar-
gaining relationship for many years covering separate units
of clerks and meat department employees, the most recent
agreement having expired January 10, 1989. Around April
1989, although not on strike, the Union commenced a picket
and handbilling campaign against Respondent in protest of
the latter’s bargaining proposals, with the purpose of encour-
aging the pubic not to shop in Respondent’s store. For the
first few days the Union picketed and handbilled customers
at the front doors to the store; however, after several con-
frontations between the pickets and management, the Union
moved its picketing activities to the two islands in the park-
ing lot nearest the entrance to the store. By letter dated April
5, 1989, the then-owner of Arrowhead Center notified the
Union that it objected to the picketing on its property and
had granted Respondent’s owners authority to have picketers
removed from the property. Thereafter, the Union moved its
picketing activity from the parking lot to the gravelled right
of way next to Highway 24. By letter dated June 22, 1989,
the property manager for the shopping center granted the
Union the ‘‘right to picket and disperse information to the
customers’’ of Respondent, ‘‘the picketers will confine them-
selves to the two concrete islands at the front of the store.’’
Thereafter, the Union resumed its activity on the parking lot
islands.
Pursuant to Board-conducted elections, the Union was de-
certified as the collective-bargaining representative of the
employees in both units on April 6, 1990. Thereafter, the
Union ceased its picketing activity on the parking lot islands
and resumed picketing on the right-of-way between the shop-
ping center and Highway 24, with signs reading:
TO THE PUBLIC
PLEASE DO NOT SHOP
RICHARDS UNITED SUPER
THIS EMPLOYER DOES NOT
EMPLOY MEMBERS OF UFCW
LOCAL 576
In addition to carrying signs bearing the above legend, the
picketers also drove stakes bearing the sign language into the
ground on the highway right-of-way. Sometime prior to July
26, 1990, the ownership and control of the shopping center
changed, and on that date the new owner granted Respondent
the following authority:
1. To ask and demand that any person or group of
persons leave the common parking area, driveway, side-
walks and premises leased to Richard’s United Super,
if at Tom or Jane Richard’s discretion, that the particu-
lar person or group of persons is present on the prop-
erty for the purpose of protesting or picketing, for an
unlawful activity, or for any other activity that inter-
feres with a patron or business activity of Richard’s
United Super orany other tenant at Arrowhead Center.
2. To sign a complaint for trespass, disturbing the
peace, or any other violation of an ordinance of the
City of Independence, Missouri arising from any activ-
ity described in (1) above; and
3. To have any unwanted or abandoned motor vehi-
cle towed from the parking lot or driveway at 18001
East 24 Highway.
That authority was in effect at the time of the instant hear-
ing.
By letter dated June 10, 1991, the District Engineer for the
Missouri Highway and Transportation Department informed
the Union’s attorney that the department had received com-
plaints from the Respondent that picket signs had been driv-
en into the ground on the highway right-of-way; that Mis-
souri Revised Statute, § 227.220 prohibited the installation of
signs on highway right-of-way without the written permis-
sion of the department; and requested the Union to refrain
from doing so. On June 11, officers of the Independence po-
lice department advised the picketers that they couldn’t stake
the picket signs in the gravel right-of-way. There was also
evidence that Respondent had contacted occupants of sur-
rounding property and induced them to prohibit the picketers
from parking their vehicles in their parking areas.
The morning of June 12, on the advice of legal counsel,
the picketers commenced picketing on the traffic islands in
the front of Respondent’s store. Shortly thereafter the police
arrived and, pursuant to the request of one of Respondent’s
owners, arrested the pickets for trespass because of their
picketing activity on the parking lot islands.
The parties stipulated that on several occasions since April
1989 tenants of Arrowhead Center had complained to the
center managing agent that the presence of the pickets at the
parking lot and driveways was creating a problem for their
businesses.
The record further shows that the parking lot and other
common areas of the shopping center have been used, appar-
205RICHARDS UNITED SUPER
2 295 NLRB 92 (1989), enfd. 914 F.2d 313 (1990).
3 Emphasis by the Court.
ently without objection, by various nontenant persons and en-
tities to advertise products for sale, solicit donations, conduct
fundraising activities, to park for extended periods of time,
and advertise automobiles for sale.
In addition to arguing that picketing on the highway right
of way is not safe for a variety of reasons, the General
Counsel, relying on the Board’s decision in Jean Country
supra, and its progeny, also contends the Union is without
an alternative means to advertise its dispute with Respondent.
In this regard, it is claimed that ‘‘Handbilling potential cus-
tomers of Respondent from the right-of-way as they enter the
parking lot is not feasible. Efforts to do so, with the volume
and speed of traffic on Highway 24, together with the ab-
sence of a right turn lane into the shopping center, would
create considerable traffic congestion and add to the already
dangerous conditions on the roadway. Likewise, mass adver-
tising by the Union is not a feasible means to communicate
its message to the public as the Union, as evidenced by its
placement in receivership by the International, cannot afford
such an alternative means and even when efforts to do so
were explored, the local newspaper rejected the Union’s ad-
vertisement because of Respondent’s high volume advertising
with the same paper.’’ After analyzing the criteria set forth
by the Board in Jean Country, the General Counsel con-
cludes that ‘‘Respondent’s private property interest here does
not weigh heavily and is substantially less than a more pri-
vate non-retail setting,’’ and that the Union’s publicity mes-
sage is worthy of accommodation against substantial impair-
ment. In such circumstances, it is argued, ‘‘the Union’s Sec-
tion 7 right is relatively strong vis-a-vis the Respondent’s as-
serted property right.’’ As noted at the outset, the Respond-
ent claims that Jean Country was wrongly decided, and that
while it was permissible for the Union to picket on the is-
lands as long as it was the certified representative for its em-
ployees, it lost that right when it was decertified on April 6,
1990.
B. Discussion
The complaint alleges, in substance, that by prohibiting
picketing on the traffic islands, and by causing the police to
arrest union representatives for so picketing, the Respondent
violated the Section 7 rights of Respondent’s employees,
thereby violating Section 8(a)(1) of the Act. As it is clear
from the evidence that the Union neither represents nor
sought to organize Respondent’s employees, the General
Counsel’s argument is grounded on ‘‘the Union’s Section 7
right.’’ In this vein, the final sentence in the General Coun-
sel’s brief reads: ‘‘Hence, under Jean Country analysis, Re-
spondent’s narrow property interest must give way to the
Union’s Section 7 activity.’’
On January 27, 1992, the Supreme Court issued its deci-
sion in Lechmere, Inc. v. NLRB, 111 S.Ct. 1302 (1992),2 re-
jecting the balancing test adopted by the Board in Jean
Country, supra. The Court stated at section II,A:
Section 7 of the NLRA provides in relevant part that
‘‘[e]mployees shall have the right to self-organization,
to form, join or assist labor organizations.’’ 29 U.S.C.
para. 157. Section 8(a)(1) of the Act, in turn, makes it
an unfair labor practice for an employer ‘‘to interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed in [para. 7].’’ 29 U.S.C. para.
158(a)(1). By its plain terms, thus, the NLRB confers
rights only on employees, not on unions or their non-
employee organizers.3
The Court made it clear that any rights to trespass by non-
employees derives from the employees’ organization rights
under Section 7. It was neither alleged nor shown in the in-
stant case that the Union either sought to contact, or that the
Respondent unlawfully restricted the Union’s access to Re-
spondent’s employees. Having failed to establish the Union
had a derivative right under Section 7, the language of the
Supreme Court compels a finding that the Respondent did
not violate the Section 7 rights of its employees when it pro-
hibited union representatives from engaging in trespassory
picketing on the islands in the front of its facility. Accord-
ingly, I recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]