Riesbeck Food Markets

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 940 (N.L.R.B. 1994)

940
315 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On February 26, 1992, the National Labor Relations Board
issued a notice to parties of opportunity to submit statements of po-
sition concerning the impact, if any, of the Supreme Court’s decision
in Lechmere v. NLRB, 112 S.Ct. 841 (1992), on the instant case.
Thereafter, the Respondent, the Charging Party, and the General
Counsel filed supplemental briefs.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 The Respondent’s policy is set forth in full in appendix B to this
decision. Because the Respondent contends that the customer solici-
tation policy as implemented differs from the policy on its face, we
shall use the term ‘‘practice’’ when referring to the former and the
term ‘‘policy’’ when referring to the latter.
4 The Respondent’s policy provides, in pertinent part:
[S]olicitation of and distribution to customers may be per-
mitted under the following circumstances:
a. The organization must be charitable in nature. [Emphasis
added.]
Riesbeck Food Markets, Inc. and United Food and
Commercial Workers International Union,
Local Union 23, AFL–CIO, CLC. Cases 8–CA–
21274 and 8–CA–22332
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
On January 28, 1991, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
Respondent, the General Counsel, and the Charging
Party filed exceptions and supporting briefs. The Re-
spondent and the General Counsel filed answering
briefs.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
briefs, and supplemental briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions only
to the extent consistent herewith and to adopt the rec-
ommended Order as modified.2
The facts, fully set forth in the judge’s decision,
may be summarized as follows. On September 7, 1988,
the United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO, CLC (the
Union) commenced informational picketing and
handbilling near the customer entrances of the Re-
spondent’s St. Clairsville, Ohio and Wheeling, West
Virginia stores. The Union’s picket signs and handbills
stated that the Respondent did not employ union mem-
bers or have a contract with the Union, and they asked
customers not to patronize the Respondent. The Re-
spondent’s managers asked the pickets and handbillers
to leave the premises. They refused. The Respondent
thereafter obtained state court injunctions limiting the
Union’s activity to public property away from the Re-
spondent’s stores.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by discriminatorily prohibiting
the union representatives from engaging in informa-
tional picketing and handbilling near the customer en-
trances to the two stores. For the reasons set forth
below, we agree with the judge. The judge further
found that the Respondent did not violate the Act by
filing and pursuing the state court civil actions seeking
expulsion of the union pickets and handbillers from the
Respondent’s premises. For the reasons set forth
below, we disagree with the judge and find that the
Respondent did so violate the Act.
A. The Respondent’s Prohibition of Union
Informational Picketing and Handbilling
The Respondent maintains a lengthy written policy
concerning the solicitation of its customers. It provides
at the outset that the Respondent
follows a general policy of prohibiting any solici-
tation of or distribution of materials to Riesbeck’s
customers by outside groups and individuals on
Riesbeck’s premises. The basis of this policy is
that Riesbeck’s will allow no solicitation or dis-
tribution activity on its premises that holds any
significant potential of harming Riesbeck’s busi-
ness.
The policy specifically prohibits any solicitation in-
volving a do-not-patronize message, political cam-
paign, or any controversial issue. The policy further
provides, however, that ‘‘[l]imited access . . . to cus-
tomers by charitable organizations under controlled
conditions enhances Riesbeck’s business goodwill in
the communities it serves.’’ The policy accordingly
states that solicitation of and distribution to customers
may be permitted by organizations that ‘‘must be char-
itable in nature.’’ The policy concludes by stating
‘‘[n]otwithstanding the foregoing, Riesbeck’s retains
discretion to deny access to its premises to any indi-
vidual or group whose activity does not, in Riesbeck’s
judgment, promote Riesbeck’s business.’’3
The Respondent does not dispute that it prohibited
the Union’s informational picketing and handbilling on
its premises pursuant to its policy concerning the solic-
itation of customers. That policy explicitly limits the
solicitation of customers only to that undertaken by
charitable organizations.4 It accordingly cannot be dis-
puted that the Respondent’s policy on its face discrimi-
nates against union solicitation of customers by permit-
ting customer solicitation only by charitable organiza-
tions.
In addition, the judge found that the Respondent in
fact applied its customer solicitation policy in a dis-
criminatory manner. The judge observed that pursuant
to its customer solicitation policy, the Respondent has
permitted numerous organizations to solicit customers
on its property at the two stores here in issue. For ex-
941RIESBECK FOOD MARKETS
ample, in 1988, the year in which the instant labor dis-
pute occurred, the following groups were permitted by
the Respondent to solicit customers in front of the
Wheeling, West Virginia store for varied purposes:
volunteer fire departments were permitted to conduct a
bake sale and a candy sale; various youth sport groups
and Easter Seals were permitted to solicit for tags; the
V.F.W. was permitted to conduct poppy sales; and the
Salvation Army was permitted to conduct its bell-ring-
ing collection campaign throughout December. In total,
during 1988, there were approximately 23 days of such
solicitation activity excluding the month-long Salvation
Army activity. With respect to the St. Clairsville, Ohio
store, the Respondent’s president testified that the list
of groups and activities would be ‘‘considerably
longer.’’
Based on this evidence, the judge correctly found
that the Respondent ‘‘permitted all kinds of civic and
charitable solicitation for a total of almost two months
a year.’’ The Respondent’s contention that its permis-
sion of solicitation by charitable and civic organiza-
tions constitutes a ‘‘limited’’ exception to its general
prohibition against customer solicitation must fail in
view of the overwhelming record evidence to the con-
trary. In these circumstances, the judge correctly con-
cluded that, under well-established precedent, the Re-
spondent’s refusal to permit the instant union solicita-
tion of customers via informational picketing and
handbilling while permitting extensive civic and chari-
table solicitation was discriminatory and hence viola-
tive of Section 8(a)(1) of the Act. See, e.g., St. Vin-
cent’s Hospital, 265 NLRB 38, 40 (1982), enfd. in per-
tinent part 729 F.2d 730 (11th Cir. 1984). Indeed, as
the judge noted, there are no ‘‘legally significant dif-
ferences’’ between the instant case and two other cases
in which 8(a)(1) violations had been found on the basis
of unlawful disparate treatment of union activity.
Ordman’s Park & Shop, 292 NLRB 953 (1989);
D’Alessandro’s, Inc., 292 NLRB 81 (1988). The Su-
preme Court’s decision in Lechmere does not disturb
the Court’s statement in NLRB v. Babcock & Wilcox,
351 U.S. 105, 112 (1956), that ‘‘an employer may val-
idly post his property against nonemployee distribution
of union literature if . . . [it] does not discriminate
against the union by allowing other distribution.’’ See
Great Scot, Inc., 309 NLRB 548 fn. 2 (1992). Com-
pare Sparks Nugget, Inc. v. NLRB, 968 F.2d 991, 998
(9th Cir. 1992) (apparently agreeing with the Board
that ‘‘an employer will violate the Act if there is ‘dis-
parate treatment of protected union activity,’’’ but
finding that it is ‘‘not discriminatory’’ for an employer
to pay employees to distribute antiunion handbills
‘‘while keeping others out’’). But see Davis Super-
markets, 2 F.3d 1162, 1177 (D.C. Cir. 1993). (‘‘Since
the NLRA does not confer rights on nonemployees (in-
cluding customers), neither the givers nor receivers of
information are protected [where nonemployees seek
access to communicate with customers.] This principle
would seem to extend even to cases of alleged dis-
criminatory denial of entry, so long as the people de-
nied access are nonemployees and they seek to com-
municate with customers.’’) [Emphasis added.] The
Davis court enforced the Board’s Order (306 NLRB
426, 426–427 (1992)) finding disparate treatment
‘‘[b]ecause the Company denied access to . . . six em-
ployee pickets [who supported one union] while it per-
mitted [another union’s] representatives to enter the
. . . store to organize employees.’’ 2 F.3d at 1178.
The Respondent concedes in its exceptions, as it
must, that its customer solicitation policy on its face
limits solicitation to that undertaken only by charitable
organizations. The Respondent nevertheless argues in
its exceptions that its actual practice under the policy
has been to permit organizations other than charitable
ones ‘‘to engage in distribution and solicitation which
do not adversely affect the promotion of its business.’’
The Respondent contends that its policy as imple-
mented does not discriminate on the basis of the union
or nonunion nature of the organization seeking to so-
licit its customers, but rather nondiscriminatorily ‘‘per-
mits or bans solicitation based on whether or not the
activity adversely affects Riesbeck’s business.’’ In this
connection, the Respondent claims that it is ‘‘particu-
larly noteworthy’’ that in 1988 the Respondent per-
mitted the Union access at the Wheeling, West Vir-
ginia store to engage in organizational employee solici-
tation because that activity did not ‘‘adversely affect
the promotion of Riesbeck’s business.’’ On the other
hand, the Respondent prohibited the union activity at
issue here because the Union ‘‘requested that cus-
tomers ‘do not patronize’ the stores, thereby adversely
affecting Riesbeck’s business.’’
We are not persuaded by the Respondent’s expla-
nation that the actual practice under its customer solici-
tation policy is nondiscriminatory. Rather, we find that
the Respondent’s practice of reviewing and evaluating
each message sought to be disseminated, and granting
access only if in its judgment the solicitation does not
adversely affect the Respondent’s business is unlaw-
fully discriminatory vis-a-vis union solicitation of cus-
tomers.
The Supreme Court has declared that freedom of
speech has long been a basic tenet of Federal labor
policy. Letter Carriers v. Austin, 418 U.S. 264, 270
(1974). ‘‘This freewheeling use of the written and spo-
ken word . . . has been expressly fostered by Con-
gress and approved by the NLRB.’’ Id. at 272. Indeed,
the Court has explained that the enactment of Section
8(c) of the Act ‘‘manifests a congressional intent to
encourage free debate on issues dividing labor and
management.’’ Linn v. Plant Guard Workers Local
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Sec. 8(c) of the Act provides:
The expressing of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor prac-
tice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
6 The Respondent concedes in its brief to the Board that the
Union’s ‘‘picket sign uses language that brings the union within the
protection of the proviso to Section 8(b)(7)(C).’’
7 Retail Clerks Local 400 (Jumbo Food Stores), 136 NLRB 414,
417 (1962); Hotel & Restaurant Employees (Crown Cafeteria), 135
NLRB 1183 (1962), supplementing 130 NLRB 570 (1961), enfd.
327 F.2d 351 (9th Cir. 1964) (picket signs stating ‘‘Notice to Mem-
bers of Organized Labor and their friends—This Establishment Is
Non-Union—Please Do Not Patronize’’ held to conform to the pro-
viso).
8 The dissent acknowledges at the outset that Lechmere ‘‘did not
eliminate what might be termed the ‘discrimination’ exception’’ to
the rule of Babcock & Wilcox. We agree and reiterate that the Bab-
cock & Wilcox discrimination exception plainly prohibits an em-
ployer from discriminating against ‘‘nonemployee distribution of
union literature.’’ We are simply holding that an employer cannot
accomplish that discrimination by the simple expedient of giving
itself so much discretion to define what is bad for its business that
it effectively is able to prohibit all union solicitation directed at cus-
tomers and the public, even though it allows other types of solicita-
tion.
114, 383 U.S. 53 (1966).5 The Board has accordingly
recognized that Federal labor policy favors ‘‘uninhib-
ited, robust, and wide-open debate in labor disputes.’’
Franzia Bros. Winery, 290 NLRB 927, 932 (1988),
quoting Letter Carriers v. Austin, 418 U.S. at 270.
The Respondent’s practice, based as it is on the con-
tent of the solicitation, cannot be reconciled with the
robust debate that is protected under the NLRA. A
practice that distinguishes among solicitation based on
an employer’s assessment of the message to be con-
veyed is discriminatory within the meaning of Babcock
& Wilcox and its progeny, because in every instance
the employer must specifically approve the solicitation
of messages protected by the Act. Thus, the Respond-
ent may under its practice permit the distribution on its
property of a wide range of messages while at the
same time forbidding the distribution of messages that
are protected under the Act.
Indeed, that is precisely what occurred in this case.
The Union’s informational picketing and handbilling
falls plainly within the second proviso to Section
8(b)(7)(C) of the Act, which provides that
nothing in this subparagraph (C) shall be con-
strued to prohibit any picketing or other publicity
for the purpose of truthfully advising the public
(including consumers) that an employer does not
employ members of, or have a contract with, a
labor organization, unless an effect of such picket-
ing is to induce any individual employed by any
other person in the course of his employment, not
to pick up, deliver or transport any goods or not
to perform any services.6
Further, the Board has specifically held that a union’s
informational picketing with the message—as in this
case—‘‘Please Do Not Patronize . . . [Employer] Does
Not Employ Members of, or Have a Contract with [the
Union]’’ is lawful activity under the second proviso to
Section 8(b)(7)(C)7 and is conduct protected by Sec-
tion 7 of the Act. D’Alessandro’s, Inc., supra at 83.
The Union was accordingly seeking to disseminate a
protected message when it sought to inform the public
that the Respondent does not employ union members,
or have a contract with the Union, and asked cus-
tomers not to patronize the Respondent.
Under the Respondent’s practice, however, the Re-
spondent forbade the Union’s distribution of this pro-
tected message on its property based on its dislike of
the nature of the message. The Respondent accordingly
precluded the dissemination of a protected message on
its property while permitting, as the judge found, ‘‘all
kinds of civic and charitable solicitation on its property
for a total of almost two months a year.’’ In these cir-
cumstances, it is difficult indeed to characterize the
Respondent’s practice as permitting on its property
union solicitation of protected messages on an equal
basis as it permits an overwhelming amount of other
solicitation.
The discriminatory nature of the Respondent’s prac-
tice is further evidenced by the discretion vested in the
Respondent to ban or permit solicitation activity, in-
cluding the lawful union consumer appeals involved
here, based on the Respondent’s purely subjective
judgment whether the activity ‘‘adversely affects’’ its
business. A practice based on this subjective standard
amounts to little more than an employer permitting on
its property solicitation that it likes and forbidding so-
licitation that it dislikes. Under the Supreme Court’s
decision in NLRB v Babcock & Wilcox, supra at 112,
the Board must ensure that an employer ‘‘does not dis-
criminate against the union by allowing other distribu-
tion.’’ We would scarcely be discharging that respon-
sibility if we countenanced a practice that treats all
employer access decisions as purely a matter of subjec-
tive business judgment.8
In contending that its practice is nondiscriminatory
with respect to union solicitation of customers, the Re-
spondent confuses its application of an entirely subjec-
tive standard to both union and nonunion solicitation
with the application of a truly neutral criterion that
treats union solicitation and nonunion solicitation alike.
It is true, as the Respondent submits, that it applies the
same standard to both union and nonunion solicitation:
solicitation is prohibited or permitted based on whether
in the Respondent’s judgment the solicitation adversely
affects its business. As explained above, however, that
standard is discriminatory vis-a-vis union customer so-
licitation because it vests the Respondent with unfet-
943RIESBECK FOOD MARKETS
9 The Respondent submits, for example, that it forbade political
campaign solicitation on its property because it is controversial and
assertedly bad for business.
10 We likewise observe that our dissenting colleagues fail to focus
on the Respondent’s policy that is at issue in this case: the Respond-
ent’s two-page policy regarding the solicitation of customers that is
set forth in full in appendix B, and the Respondent’s asserted prac-
tice under that policy of ‘‘permit[ting] or ban[ning] solicitation based
on whether or not the activity adversely affects Riesbeck’s busi-
ness.’’ The dissent never addresses the question whether the Re-
spondent discriminatorily applied that policy or practice. Rather, our
colleagues extract one sentence—that prohibiting do-not-patronize
messages—from the Respondent’s two-page policy and examine that
one sentence without reference to the Respondent’s overall policy or
stated practice. Our colleagues, accordingly, do not address the sig-
nificance of the judge’s finding that the Respondent permitted ‘‘all
kinds of civic and charitable solicitation’’ under its policy and its
practice while disallowing the instant union solicitation. Nor do they
recognize that both the policy and practice actually in issue here
grant the Respondent complete discretion to discriminatorily pre-
clude—as it did here—union solicitation of protected messages while
permitting frequent solicitation by civic and charitable groups.
We note additionally that our colleagues do not dispute that the
message sought to be disseminated by the Union here is protected
under the Act. That the Act protects such messages is fully consist-
ent with the congressional intent to encourage free debate in labor
disputes. See Letter Carriers v. Austin, supra. Our finding of unlaw-
ful conduct in this case is not based on the First Amendment, as our
dissenting colleagues suggest, but rather is based on rights conferred
by the Act. Thus, the fact that the constitutional guarantee of free
expression was held inapplicable to access cases in Hudgens v.
NLRB, 424 U.S. 507 (1976), as our colleagues point out, has no
bearing on our finding of a violation in this case.
11 We additionally take note of the Respondent’s contention that,
if the Board adopts the judge’s finding of discriminatory treatment,
the Union’s access to the Respondent’s premises must be subject to
the same specific limitations as to the number of solicitors permitted
and the like which the Respondent imposes on other groups. The rel-
evant issue alleged and decided in this case is whether the Respond-
ent unlawfully denied the Union access to its premises, not whether
the Respondent may permit the Union access to its premises and
lawfully subject it to certain limitations. Accordingly, we need not
determine what, if any, reasonable limitations the Respondent may
place on the Union’s access to its premises.
tered discretion to preclude the solicitation of protected
messages by unions while permitting a myriad of other
solicitation. It is of little significance that the standard
does not explicitly forbid solicitation by unions, as the
Respondent emphasizes, because the Respondent’s
practice permits it to exclude any union solicitation it
wishes to without reference to such an express exclu-
sion.
It is disingenuous for the Respondent to argue that
in forbidding protected union messages it does not care
for and considers bad for business, it acts in a non-
discriminatory fashion because it likewise forbids the
solicitation on its property of nonunion related mes-
sages it does not care for and considers bad for busi-
ness.9 The Respondent is under no obligation to open
up its property to nonunion messages that it finds dis-
tasteful, and it would be most surprising if any em-
ployer chose to do so. The prohibition of such mes-
sages does not grant the Respondent license to prohibit
distribution of protected union messages on its prop-
erty while allowing abundant charitable and civic so-
licitation. The Respondent may not discriminate
against the Union by opening up its property to a wide
range of solicitation that it deems ‘‘enhanc[ing to its]
business goodwill’’ and forbidding—as here—the dis-
semination of messages protected by the Act which it
deems bad for business.
In determining whether the Respondent’s customer
solicitation practice is discriminatory, we have care-
fully considered the fact that the Respondent granted
the Union access on one occasion to engage in organi-
zational employee solicitation. In the circumstances of
this case, we find that this evidence is entitled to little
weight. That the Respondent elected to permit in one
instance union organizational solicitation is not pro-
bative as to whether the Respondent has discriminated
against the distribution of protected union messages in
subsequent instances. This is so because the Respond-
ent in each instance makes a new subjective determina-
tion whether the solicitation is permissible and its prior
decision is entirely separate from subsequent consider-
ation of union solicitation. Furthermore, the Respond-
ent concedes that its allowance of union organizational
solicitation of employees did not implicate its policy at
issue here concerning the solicitation of customers.
The Respondent acknowledges that it has two ‘‘inde-
pendent’’ solicitation policies: one involves the solici-
tation of customers and the other involves the solicita-
tion of employees. The Respondent permitted the orga-
nizational solicitation pursuant to its policy regarding
the solicitation of its employees, and the Respondent
concedes that that policy is not involved in this case.
Where, as here, an employer states that it has two
independent policies and only one is in issue, we be-
lieve that it is appropriate to focus upon the policy that
is challenged to be unlawful (solicitation of customers)
and not attempt to evaluate conduct governed by a dif-
ferent policy that is not before us.10
In sum, finding the Respondent’s customer solicita-
tion policy to be discriminatory on its face and in its
application, we conclude that the Respondent’s denial
of access to the Union to picket and handbill near the
customer entrances to two of its stores constituted un-
lawful disparate treatment of union activities in viola-
tion of Section 8(a)(1).11
B. The Respondent’s State Court Actions Against
the Union
As noted above, the Respondent filed civil com-
plaints in Ohio and West Virginia state courts seeking
injunctive relief against the Union’s picketing and
handbilling activity. On September 9, 1988, the courts
in each state issued temporary restraining orders pro-
hibiting the Union’s activity outside the Respondent’s
customer entrances and limiting the activity to public
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 On April 3, 1991, the Supreme Court of West Virginia found
that state court jurisdiction was preempted by the Union’s filing of
unfair labor practice charges with the Board and reversed the circuit
court’s issuance of the injunction insofar as it enjoined the Union
from peaceful picketing and handbilling on shopping center property.
13 We grant the General Counsel’s unopposed motion to reopen the
record to reflect the dismissal of the Respondent’s Ohio state court
action.
14 305 NLRB 663 (1991).
15 Member Browning agrees with the view Justice Blackmun set
forth in his concurring opinion in Sears, Roebuck & Co. v. San
Diego County District of Carpenters, 436 U.S. 180 (1978), that state
court jurisdiction is preempted once the union files an unfair labor
practice charge. In the absence of a Board majority for that position,
however, Member Browning will apply the Loehmann’s Plaza rule
that the General Counsel’s complaint triggers preemption.
16 Under Loehmann’s Plaza, the Respondent’s filing of the law-
suits and maintenance of the lawsuits up until the time the General
Counsel issued a complaint did not constitute a violation of the Act,
because no evidence has been presented that the Respondent’s pur-
pose in pursuing the lawsuits prior to the time the General Counsel
issued his complaint was other than to protect, or at least to have
adjudicated, its property rights.
17 If it takes this action within 7 days, the Board will not find a
violation. Id. at 671.
18 Member Devaney agrees that the Respondent’s trespass injunc-
tion lawsuits violated Sec. 8(a)(1), but only for the following rea-
sons. As set forth in his separate opinion in Loehmann’s Plaza,
supra, he would find that the test stated in Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983), is appropriate for determin-
ing whether lawsuits such as those at issue here violate the Act. Ap-
plying that test in this case, Member Devaney would find that it
need not be shown that the lawsuits lacked a reasonable basis, be-
cause both lawsuits are over and the Respondent did not prevail.
Therefore, for a violation to be found, all that need be shown is that
the lawsuits had a retaliatory motive. See Oakwood Hospital, 305
NLRB 680, 682 (1991) (Member Devaney, dissenting in part); Ma-
chinists Lodge 91 (United Technologies), 298 NLRB 325 (1990).
Member Devaney would find such a motive here. The Respondent’s
lawsuits were to further its discriminatory policy and practice of ex-
cluding union solicitation of customers while permitting solicitation
of customers by other organizations. The Board has found that the
union’s solicitation was protected by Sec. 7 and the Respondent’s
discriminatory prohibition of it violated Sec. 8(a)(1). The Respond-
ent’s trespass injunction lawsuits were simply another means for the
Respondent discriminatorily to prevent the Union from engaging in
protected conduct. Member Devaney would therefore find the law-
suits to be attempts to retaliate against the Union’s protected activi-
ties. On that basis, he would find that the Bill Johnson’s test was
met and that the lawsuits violated Sec. 8(a)(1).
19 283 NLRB 1173 (1987).
20 We find it unnecessary to order the Respondent to withdraw its
lawsuits because both have been dismissed by the state courts on
preemption grounds.
property away from the Respondent’s stores. The tem-
porary injunction issued by the West Virginia Circuit
Court was made permanent on December 19, 1988.12
The Respondent’s action in Belmont, Ohio Circuit
Court was dismissed on March 7, 1991, on the ground
that the Respondent’s complaint was preempted by the
National Labor Relations Act.13
In Loehmann’s Plaza,14 which issued after the
judge’s decision here, the Board held that once a com-
plaint issues alleging, as in this case, the unlawful ex-
clusion of employees or union representatives from the
employer’s property, any state court lawsuit concerning
the question is preempted by the Board’s proceed-
ings.15 Further, the continued pursuit of such a lawsuit
following complaint issuance violates Section 8(a)(1)
of the Act.
Applying the rule of Loehmann’s Plaza to this case,
we find that the Respondent violated Section 8(a)(1)
by continuing to maintain its Ohio and West Virginia
state court actions against the Union after the General
Counsel issued a complaint alleging that the Respond-
ent had unlawfully denied the Union access to its St.
Clairsville and Wheeling facilities.16 It is undisputed
that the Respondent filed its state court complaints on
September 8 and 9, 1988. It is further undisputed that
the Union filed unfair labor practice charges on Sep-
tember 19 and 26, 1988, and the General Counsel
issued a complaint on February 5, 1990. As we stated
in Loehmann’s Plaza, a respondent has an affirmative
duty to take action to stay the state court proceedings
following issuance of the Board complaint.17 There is
no evidence in this case that the Respondent took any
action to stay the state court proceedings. We accord-
ingly find that the Respondent violated Section 8(a)(1)
by its continued maintenance of the state court lawsuits
after the complaint in this proceeding issued on Feb-
ruary 5, 1990.18 Great Scot, Inc., 309 NLRB at 549–
550; Davis Supermarkets, 306 NLRB at 427, enfd. 2
F.3d at 1179, 1180.
AMENDED CONCLUSIONS OF LAW
1. Insert the following paragraph as paragraph 2 and
renumber the subsequent paragraph.
‘‘2. By prosecuting, after the issuance of a Board
complaint, state court civil actions against the Union
seeking to prohibit protected handbilling and picketing
near the entrances to two of the Respondent’s stores,
the Respondent has violated Section 8(a)(1) of the
Act.’’
2. Delete paragraph 3.
AMENDED REMEDY
We shall order the Respondent to reimburse the
Union for all legal expenses, plus interest as computed
in New Horizons for the Retarded,19 incurred after the
February 5, 1990 issuance of the complaint in this pro-
ceeding in defense of the Respondent’s Ohio and West
Virginia state court lawsuits.20
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Riesbeck Food Markets, Inc., St. Clairsville, Ohio, and
Wheeling, West Virginia, its officers, agents, succes-
945RIESBECK FOOD MARKETS
1 We agree that this case would be much closer to D’Alessandro’s,
Inc., 292 NLRB 81 (1988), if the Respondent had never allowed
union agents to engage in solicitation on its property and had applied
a policy of barring their entry for any purpose under its more general
rule permitting only ‘‘charitable’’ organizations that ‘‘enhanced’’ its
‘‘business goodwill.’’ In D’Alessandro’s the union handbillers were
ejected on the ground that their presence was in violation of the
owner’s policy of excluding ‘‘‘controversial’ activities . . . that
would make customers uncomfortable.’’ Id. at 82. Notwithstanding
this expressed policy, political candidates giving speeches address-
ing, inter alia, the right-to-work laws, were permitted on the prop-
erty. Id.
2 We take administrative notice of the fact that labor unions are
not the only organizations in this country that seek to encourage
consumer boycotts. The Respondent’s rule 4 would, on its face,
apply to any group that sought to injure the Respondent’s business
by the specific means of asking customers not to shop there.
3 ‘‘We conclude, in short, that under the present state of the law
the constitutional guarantee of free expression has no part to play
in a case like this.’’ 424 U.S. at 521.
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph.
‘‘(b) Prosecution, after the issuance of a Board com-
plaint, of state court lawsuits seeking to prohibit the
Union from engaging in protected picketing and
handbilling near the customer entrance of its St.
Clairsville, Ohio store, and from handbilling near the
customer entrance to its Wheeling, West Virginia
store.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraph.
‘‘(b) Reimburse United Food and Commercial
Workers International Union, Local Union 23, AFL–
CIO, CLC for all legal expenses, plus interest as com-
puted in New Horizons for the Retarded, supra, in-
curred after the February 5, 1990 issuance of the com-
plaint in this proceeding in defense of the Respond-
ent’s state court lawsuits against the Union.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBERS STEPHENS AND COHEN, dissenting.
We agree with our colleagues in the majority that
the Supreme Court’s decision in Lechmere v. NLRB,
112 S.Ct. 841 (1992), did not eliminate what might be
termed the ‘‘discrimination’’ exception to the rule of
NLRB v. Babcock & Wilcox, 351 U.S. 105, 112
(1956); and we adhere to the Board’s post-Lechmere
decisions that so hold. E.g., Great Scot, Inc., 309
NLRB 548 fn. 2 (1992). We disagree, however, that
the particular facts established on the record in this
case permit a finding of discrimination. For the reasons
set out below, we would dismiss the complaint.
There are three pieces of evidence and one evi-
dentiary gap that, considered together, we find deter-
minative. First, the Respondent’s detailed policy gov-
erning on-premises solicitation by outside groups (ap-
pendix B) contained a specific rule (no. 4) that abso-
lutely prohibited ‘‘Solicitation of or distribution to cus-
tomers by any group or individual seeking to solicit
Riesbeck’s customers not to patronize Riesbeck.’’ Sec-
ond, the Union’s picket signs and handbills all urged
customers not to patronize Riesbeck. Third, the Re-
spondent had allowed nonemployee union agents on its
property to solicit employees in an organizational cam-
paign, thereby demonstrating that the policy’s general
statement about enhancing ‘‘business goodwill’’ was
not a cover for barring unions, including even those
that respected the explicit prohibitions applicable to all
groups and individuals.1 Finally, there is no evidence
that the Respondent had ever disparately applied its
rule barring solicitations with ‘‘do not patronize’’ mes-
sages.2 In short, Respondent permits nonboycott solici-
tations by nonunions and unions, and it forbids boycott
solicitations by unions and nonunions. In our view,
such a practice does not discriminate against union ac-
tivity.
In the absence of discrimination, we find no basis
for predicating an unfair labor practice on the Re-
spondent’s exclusion of the nonemployee union agents
carrying out the Union’s ‘‘do not patronize’’ cam-
paign. Our colleagues rely on such cases as Letter
Carriers v. Austin, 418 U.S. 264 (1974), and Linn v.
Plant Guard Workers Local 114, 383 U.S. 53 (1966),
for the proposition that Congress intended to foster,
through our Act, ‘‘freewheeling use of the written and
spoken word’’ (Austin, supra at 270) and to ‘‘encour-
age free debate on issues dividing labor and manage-
ment’’ (Linn, supra at 62). We do not dispute that
proposition, but we question its relevance here. In
those cases, the issue before the Court was whether
state libel laws could be used to penalize, by means
of damage judgments, speech that was protected by
Section 7 of the Act or its analogue in a Federal exec-
utive order. The Court decreed an accommodation with
policies of the Act pursuant to which there could be
no liability under state libel laws for speech in labor
disputes if that speech did not amount to a reckless or
knowing falsehood. Austin, supra at 281. The issue in
the present case is whether the Employer can bar ac-
cess to private property under its control to persons
who are not its employees and who are engaged in ex-
pressing views protected by Section 7 of the Act. The
Supreme Court in Hudgens v. NLRB, 424 U.S. 507
(1976), foreclosed reliance on concepts stemming from
First Amendment free-expression considerations;3 and
the Court in Lechmere, supra, as noted above, left
standing the prohibition against discriminatory access
policies, but otherwise applied a rule that turns on con-
siderations other than the strength or importance of the
Section 7 rights at issue.
We are not persuaded by our colleagues’ assertion
that the Respondent’s policy is overly broad on its face
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We recognize that a no-solicitation rule, directed at employees,
may be unlawful on its face if it is overly broad. However, the alle-
gation in this case is not that the rule is overly broad on its face,
but rather that it has been interpreted against union activity. As dis-
cussed above, we believe that the rule does not discriminate on this
basis.
5 Member Stephens agrees with the majority that if the Respondent
violated Sec. 8(a)(1) in barring access to the union picketers and
handbillers, then the Respondent’s continued prosecution of its law-
suits after issuance of the unfair labor practice complaint also vio-
lated Sec. 8(a)(1) under the holding of Loehmann’s Plaza, 305
NLRB 663 (1991). Member Cohen finds it unnecessary to reach this
issue and does not do so.
and that the Respondent is given wide discretion under
that policy. There is no evidence that the policy, as ac-
tually interpreted and applied, operates to discriminate
against union activity.4
Because we would find that the Respondent was not
unlawfully interfering with a protected right in barring
the access at issue in this case, we would further find
that the state court actions enforcing the Respondent’s
property rights were not unlawful.5 We would there-
fore dismiss the complaint.
APPENDIX A
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 discriminatorily prohibit representa-
tives of United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO, CLC,
from picketing and handbilling near the customer en-
trance of our store in St. Clairsville, Ohio, and from
handbilling near the customer entrance of our store in
Wheeling, West Virginia.
WE WILL NOT prosecute, after the issuance of a
Board complaint, state court lawsuits seeking to pro-
hibit the Union from engaging in protected picketing
and handbilling near the customer entrance of our St.
Clairsville, Ohio store, and from handbilling near the
customer entrance of our Wheeling, West Virginia
store.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL reimburse the Union, with interest, for all
legal expenses incurred after the February 5, 1990
issuance of a complaint in this proceeding in defense
of the state court lawsuits we brought against the
Union.
RIESBECK FOOD MARKETS, INC.
APPENDIX B
Riesbeck Food Markets, Inc.
POLICY ON SOLICITATION OF AND DISTRIBUTION
OF MATERIALS TO CUSTOMERS BY OUTSIDE
GROUPS AND INDIVIDUALS ON RIESBECK PREMISES
Riesbeck Food Markets, Inc. follows a general pol-
icy of prohibiting any solicitation of or distribution of
materials to Riesbeck’s customers by outside groups
and individuals on Riesbeck’s premises. The basis of
this policy is that Riesbeck’s will allow no solicitation
or distribution activity on it premises that holds any
significant potential of harming Riesbeck’s business. In
that regard, it is our best judgment that a significant
number of our customers do not wish to be approached
or confronted in connection with any issue of con-
troversy in the course of a trip to the supermarket, and
will choose to patronize a competitor who is not sub-
ject to such solicitation and/or distribution activity if
so confronted while on foot entering or leaving the su-
permarket. In particular, it is our judgment that a sig-
nificant number of our customers do not wish to be
confronted by any kind of picketing activity on
Riesbeck’s premises without regard to the message
being conveyed by pickets.
Pursuant to Riesbeck’s general policy, the following
activity is absolutely prohibited on Riesbeck’s prem-
ises:
1. Solicitation of or distribution to customers by
any other commercial enterprise, including the
handbilling of vehicles.
2. Solicitation of or distribution to customers by
any political campaign of any kind, including
school millage campaigns, etc.
3. Solicitation of or distribution to customers by
any organization taking a public position on any
significant issue over which there are differing
opinions in the community (e.g., pro-choice or
pro-life groups, product boycotters, etc.)
4. Solicitation of or distribution to customers by
any group or individual seeking to solicit Ries-
beck’s customer not to patronize Riesbeck’s
Any group or individual who seeks permission to con-
duct such activity will be denied access to Riesbeck’s
premises, and any group or individual discovered to be
engaging in such activity without permission will be
asked to leave Riesbeck’s premises immediately.
Activities that promote Riesbeck’s business. Limited
access by certain solicitation of and distribution to cus-
tomers by charitable organizations under controlled
conditions enhances Riesbeck’s business goodwill in
the communities it serves. Therefore, solicitation of
and distribution to customers may be permitted under
the following conditions:
947RIESBECK FOOD MARKETS
a. The organization must be charitable in nature
and must be either locally based or the local affil-
iate of a larger organization.
b. The organization must not take public posi-
tions on any significant issue over which there are
differing opinions in the community.
c. The organization must not be directly in-
volved in political issues.
d. The number of solicitors/distributors must be
limited to two at any one time.
e. The length of time that the solicitors/dis-
tributors are permitted access to our premises is
limited to two consecutive days.
f. The location of the solicitors/distributors
must be restricted away from the immediate vicin-
ity of the store entrance.
g. The organization must not solicit customers
not to patronize Riesbeck’s or purchase goods
sold at Riesbeck’s.
h. The organization must not utilize placards.
i. The solicitors/distributors must not liter [sic],
play radios, etc., at a loud volume, or otherwise
disrupt store operations in any way.
Notwithstanding the foregoing, Riesbeck’s retains dis-
cretion to deny access to its premises to any individual
or group whose activity does not, in Riesbeck’s judg-
ment, promote Riesbeck’s business.
Application for access. An organization or individual
desiring access must certify in advance that it will sat-
isfy each of the conditions listed above by the signa-
ture of an officer or adult advisor (if applicable).
Signature: llllllllllll
Allen Binstock, Esq., for the General Counsel.
J. Michael Kota, Esq. and Julie Ashworth Glover, Esq., of
Columbus, Ohio, for the Respondent.
James R. Reehl, Esq. and Daniel W. Dickinson Jr., Esq., for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
case was tried on April 24, 1990, in St. Clairsville, Ohio.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by refusing to permit picketing and
handbilling on behalf of the Charging Party Union (the
Union) at the customer entrances of its store in St.
Clairsville, Ohio, and handbilling at the customer entrances
of its store in Wheeling, West Virginia, and, thereafter, filing
suits in state courts to cause the removal of the pickets and
handbillers. The Respondent filed an answer denying the es-
sential allegations in the complaint. The parties have filed
briefs which I have read and considered.
Based on the briefs, the testimony of the witnesses, and
my observation of their demeanor, as well as the documen-
tary evidence and the entire record here, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, is engaged in the
operation of retail stores in St. Clairsville, Ohio, and Wheel-
ing, West Virginia. In the course and conduct of its business,
Respondent derives gross revenues of over $500,000 and an-
nually purchases and receives, at its St. Clairsville and
Wheeling facilities products, goods, and materials valued in
excess of $50,000 directly from outside the States in which
these facilities are located. Accordingly, I find, as Respond-
ent admits, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The Union’s activity and Respondent’s reaction
On September 7, 1988, the Union initiated informational
picketing and handbilling outside the customer entrances of
the Respondent’s stores in St. Clairsville, Ohio, and Wheel-
ing, West Virginia. None of the pickets or handbillers were
employees of Respondent and the Union had previously noti-
fied Respondent that it disclaimed any interest in seeking to
represent the employees at either store. The activity was con-
ducted peacefully and without blocking ingress or egress to
customers, employees, suppliers, or other individuals. The
picket signs stated that Respondent does not employ mem-
bers of, or have a contract with, the Union, and asked cus-
tomers not to patronize Respondent. The handbills contained
essentially the same message.
Respondent’s St. Clairsville store is a ‘‘free standing’’
store located on premises owned by Respondent. Its Wheel-
ing store is located in the Elm Grove Shopping Plaza on
premises leased by Respondent.
On September 8, 1988, Respondent’s managers asked the
pickets and handbillers to leave the premises. They refused.
The Respondent thereafter filed actions in the Ohio and West
Virginia state courts seeking injunctive relief against the
picketing and handbilling. On September 9, the courts in
each State issued temporary restraining orders against the
Union, prohibiting the picketing and handbilling outside Re-
spondent’s customer entrances and limiting such activity on
public property outside the shopping center and Respondent’s
premises. The West Virginia Circuit Court order was made
permanent on December 19, 1988; the Belmont County,
Ohio County court issued a preliminary injunction, but a mo-
tion by Respondent for a permanent injunction remains pend-
ing. The Union thereafter conducted its picketing and
handbilling on public property outside the driveway en-
trances into the shopping center and Respondent’s premises.
That activity continued until December 6, 1988, when it
ceased.
On September 26, 1988, the Union filed the unfair labor
practice charges in this case. It took the position in the state
court actions that the suits should be dismissed because state
court jurisdiction was preempted by that of the Labor Board.
The Supreme Court of West Virginia has accepted the
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union’s appeal of the permanent injunction and the matter is
currently pending before that court.
2. The physical layout of Respondent’s stores
Respondent’s Wheeling facility is one of two major retail
enterprises in the Elm Grove Shopping Plaza; there are other
smaller facilities in the shopping center bordered by a large
parking area containing 435 spaces, of which 200 front Re-
spondent’s store.
The plaza itself is in the shape of a long, low right tri-
angle, bordered along its base by Route 40, a four-lane high-
way. To the east, along the triangle’s short leg, is Pontiac
Road, a two-lane street with an unposted 25-mile-per-hour
speed limit. To the north, along the triangle’s hypotenuse,
lies Little Wheeling Creek. The two customer doors of Re-
spondent’s store face north onto the larger portion of the
parking lot. One store entrance is approximately 80 yards
from the southern Pontiac Road entrance to the shopping
center. The second is approximately 25 to 30 yards from that
street entrance. At the far western tip of the property, where
the Shilling Bridge crosses the Little Wheeling Creek and
intersects Route 40, an access road through an undeveloped
portion of the property exclusively services the plaza from
the west. This entrance to the plaza is about 1600 feet from
Respondent’s store which cannot be seen from the street en-
trance. There is a stop sign at the intersection of Shilling
Bridge and the access road where the speed limit is 25 miles
per hour. There are no entrances directly into the plaza from
Route 40.
The Respondent’s St. Clairsville store is located on prem-
ises owned by it and which included, at the time of the pick-
eting, a Fotomat outlet and an automatic teller machine. The
latter is still located at the site. The premises are located on
U.S. Route 40, a two-lane road with a 35-mile-per-hour
speed limit. There is a driveway entrance to the parking lot
at the eastern end of the property and a driveway exit near
the west end. There are no traffic signals or turning lanes at
either of these sites. Access to the lot is solely from Route
40 as there are no other access roads. The location where the
Union was ordered to conduct its activity on public property
outside the premises is approximately 60 yards from the cus-
tomer doors of the Respondent’s store.
3. The Respondent’s solicitation policy
In the past, Respondent has allowed charitable, civic, and
other organizations to solicit on its property near the cus-
tomer entrances to its Wheeling store at the Elm Grove
Shopping Plaza as well as its St. Clairsville store. In 1988
the following groups were allowed to solicit in front of the
Wheeling store for varied purposes: volunteer fire depart-
ments were permitted to conduct a bake sale and a candy
sale; various youth sports groups and Easter Seals were per-
mitted to solicit for tags; the V.F.W. was permitted to con-
duct poppy sales; and the Salvation Army was permitted to
conduct its bell-ringing collection campaign throughout the
month of December. The list submitted in evidence included
23 different days of such activity in 1988, excluding the
month-long Salvation Army activity. The same groups were
permitted to solicit in 1989, presumably for the same period
of time. And the list of groups and activity would be ‘‘con-
siderably longer’’ at the St. Clairsville store, according to
Richard Riesbeck, the president of Respondent. At the latter
store the list would include cheerleader and school band
groups.
Respondent submitted in evidence a written policy state-
ment on solicitation and distribution of materials by outside
groups and individuals on its premises. That policy generally
prohibits all solicitation and distribution directed to cus-
tomers but permits such activity if it is deemed to enhance
the Respondent’s good will. It also prohibits groups from
seeking to solicit Respondent’s customers not to patronize it.
Respondent did permit the Union to engage in organizational
solicitation of its employees on the premises of its Wheeling
store in early 1988.
B. Discussion and Analysis
1. The prohibition violation
The General Counsel contends that Respondent’s prohibi-
tion against the Union’s informational picketing and
handbilling on its premises was discriminatory because it
permitted numerous other outside groups to solicit and dis-
tribute on its premises for charitable and civic purposes.
Such discrimination, he asserts, is unlawful without regard to
the accommodation and balancing of property rights and Sec-
tion 7 rights normally required in this type of case under
Jean Country, 291 NLRB 11 (1988), and its progeny. The
Respondent counters that it did not discriminate because the
activity permitted on its premises was different from that
which the Union sought to undertake.
If I were writing on a clean slate, I might agree that do-
not-patronize consumer-oriented activity, regardless of the
entity advancing it, is not similar to charitable or civic activi-
ties which this and other retailers permit on their property to
enhance good will. However, I am not. The Board has spe-
cifically considered the issue in two recent cases and has
ruled, in a way which I believe leaves no room for realisti-
cally distinguishing this case, that such do-not-patronize con-
sumer appeals by unions are the same as or similar to chari-
table or civic solicitation, and, therefore, banning the former
while permitting the latter is unlawful disparate treatment.
D’Alessandro’s, Inc., 292 NLRB 81 (1988), and Ordman’s
Park & Shop, 292 NLRB 953 (1989).
In D’Alessandro’s, the employer prohibited a union which
had disavowed any organizational object, from handbilling at
the customer doors of its grocery store. The union’s message
was that customers should not shop at the employer’s store
and patronize instead specifically named unionized stores.
The Board found a violation on a disparate treatment theory
because the employer had permitted, on its premises, a wide
range of commercial and other activity unrelated to the oper-
ation of the store. This activity included handbilling parked
cars, the sale of various items at the customer doors, the dis-
play of boats and vehicles in the parking lot, and even a
press conference for political candidates. The Board specifi-
cally found that the banned do-not-patronize-because-the-
store-is-nonunion message was protected concerted activity
under Section 7 of the Act and inferentially found that this
activity was the equivalent of the other activities listed above
which were permitted.
In Ordman’s Park, supra, the union picketed and
handbilled with a similar do-not-patronize message; here,
however, the union was protesting that the new owner of the
949RIESBECK FOOD MARKETS
1 It might well be that, under the accomodation theory of Jean
Country, discriminatory treatment of a union might tip the balance
between Sec. 7 rights and property rights in favor of the union—
at least in some circumstances. The Board, however, has not taken
this approach in the cited cases. But see Wegman’s Food Markets,
300 NLRB 868 (1990), enfd. 957 F.d 912 (D.C. Cir. 1990).
2 Both Respondent’s rule and its practice made the crucial distinc-
tion between do-not-patronize and other solicitation so it does not
matter that Respondent substantially followed its rule when it pro-
hibited the union activity.
3 Actually, the General Counsel urges a violation in the continu-
ation of the lawsuits after the filing of the unfair labor practices
charges here because at that point, in his view, the lawsuits were
preempted.
store it was picketing did not hire the union members em-
ployed by its predecessor. The store owner and the property
owner lessors effectively banned the picketing and
handbilling from areas adjacent to the store. Here again, the
Board found a violation based on disparate treatment because
the very sidewalks and store entrances from which the union
was ousted were utilized freely by charitable, civic, and other
organizations, including cheerleaders selling baked goods and
Lions Club representatives selling candy. Carwashes spon-
sored by other groups were also held on the parking lot.
Having found unlawful disparate treatment in each case,
the Board found it unnecessary to engage in the
accomodation analysis of the relative strength of property
and Section 7 rights under the principles of Jean Country,
supra.1
I cannot see any legally significant differences between
this case and D’Alessandro’s, supra, and Ordman’s Park,
supra. In all three cases, nonemployee union pickets engaged
in do-not patronize activity with no organizational or bar-
gaining objectives. In all three cases, the employer-property
owner-lessee opened his property to solicitation and other ac-
tivity by outside groups. In all three cases, the union was
banned from engaging in its activity. Although there is obvi-
ously a point at which the permitted activity is so limited
that a disparate treatment analysis cannot be sustained (see
Hammary Mfg. Corp., 265 NLRB 57 (1982)), the evidence
of such permitted activity here, as in the other two cases
cited above, more than meets this threshold level. Thus, the
Respondent here permitted all kinds of civic and charitable
solicitation for a total of almost 2 months a year. If anything
there was more of this type of activity here than in
D’Alessandro’s and Ordman’s Park. In these circumstances,
I am constrained to conclude that D’Alessandro’s and
Ordman’s Park require a finding, in this case, that Respond-
ent’s ban against the Union’s do-not-patronize message in the
face of its permitting significant charitable, civic, and other
solicitation on its premises was unlawful.2
In two footnotes to its lengthy brief, Respondent attempts
to distinguish the adverse precedent. It attempts to distin-
guish D’Alessandro’s on the ground that, although both cases
involved a policy which prohibited controversial activities,
the employer in D’Alessandro’s permitted a political press
conference on a controversial issue whereas Respondent ad-
hered to its policy. I doubt that D’Alessandro’s turned on
this point. First of all, as I have indicated above, de minimus
or isolated toleration of nonunion activity will not ordinarily
support a violation. In D’Alessandro’s, the Board contrasted
the employer’s prohibition of union activities with the grant
of ‘‘virtually unlimited use’’ of its property to outsiders for
‘‘sales, solicitations, and distributions.’’ As further evidence
of disparate treatment, the Board went on to unmask an al-
leged distinction based on controversial activities. It was in
this context that the Board discussed the political press con-
ference. In any event, even if such evidence were not
present, it seems to me that the result would have been the
same. Any attempt to distinguish peaceful and protected
union activities from other solicitations on the ground that
the former is controversial is itself discriminatory because
the implication is that all union activity is controversial.
Moreover, this approach injects a subjective element to the
equation which is based on the content of the union’s mes-
sage as a union.
Respondent’s attempt to distinguish Ordman’s Park is
likewise ineffective. The Respondent states that the Section
7 right in that case was different from that in this case be-
cause the union was protesting the employer’s refusal to hire
the employees of a predecessor. However, under the dispar-
ate treatment rationale of the Board, the origin of the protest
and the degree of the Section 7 right is irrelevant. The Sec-
tion 7 right in the two cases is essentially the same—the
right of a union, through nonemployees with no organiza-
tional objectives, to protest the nonunion status or policy of
the employer. The message was also the same. Customers
should not patronize the employer because of its antiunion
position.
In sum, under applicable Board precedent, I find that Re-
spondent’s ban on union consumer appeals at both locations
was discriminatory and thus violative of Section 8(a)(1) of
the Act. In view of this disposition of the case, like the
Board in D’Alessandro’s and Ordman’s Park, I need not
reach the accomodation theory argument advanced by the
General Counsel under the Jean Country case.
2. The state court litigation violation
The General Counsel contends that the Respondent’s filing
of lawsuits in which it sought court expulsion of the pickets
and handbillers from its premises was independently viola-
tive of the Act, in reliance on Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731 (1983).3 In Bill Johnson’s the Supreme
Court confirmed that it is an unfair labor practice for an em-
ployer or union to file and prosecute a baseless lawsuit with
the intent to retaliate against employees exercising their
rights under the Labor Act. The Court indicated that when
confronted with an allegation that the filing and prosecution
of a lawsuit violates the Act, the Board must first determine
whether the suit has a ‘‘reasonable basis.’’ If the suit is not
deemed to have had a reasonable basis, the Board must then
determine whether the suit was filed with a retaliatory mo-
tive. If the suit is found to have a reasonable basis, the Board
may not enjoin the suit but must stay its own proceeding
until the lawsuit has been concluded (461 U.S. at 747).
The General Counsel asserts that the Respondent’s state
court lawsuits herein were unlawful because they were retal-
iatory and they lacked a reasonable basis since they were
preempted once the Union invoked the processes of the
Board.
The Respondent counters that its lawsuits were not unlaw-
ful, in reliance on the Board’s decision in Giant Food Stores,
295 NLRB 330 (1989), motion for reconsideration denied
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If and when my findings of a violation for prohibiting union ac-
tivity at the customer entrances to the two stores are upheld and fi-
nalized, the state court suits must be dismissed because the Board’s
decision takes precedence. Should the Union wish to resume picket-
ing and handbilling in accordance with the Board’s decision it could
urge dismissal on this basis as well as preemption. The Board could
also, if it chooses, intervene under Nash-Finch, supra, urging dismis-
sal on the same grounds.
298 NLRB 410 (1990). In Giant the Board applied the ana-
lytical framework established in Bill Johnson’s. It found that
the evidence in that case—which was similar to that in this
case—was insufficient to establish that the employer’s main-
tenance of a lawsuit to enjoin what was found to be lawful
protected picketing on the employer’s premises after the
union filed a charge ‘‘lacked a reasonable basis.’’ The Board
held that because ‘‘the state court was obligated to consider
the preemption claim once it was raised by’’ the union there-
in, ‘‘it cannot be said that the litigation of that issue or the
subsequent appeal of the state court’s resolution of that
claim, without more, lacked a reasonable basis.’’ Thus, the
Board concluded that Bill Johnson’s required it to stay its
hand pending completion of the state court proceedings and
it dismissed this aspect of the complaint, retaining jurisdic-
tion for further consideration after the conclusion of the state
court action.
The General Counsel meets the Giant decision head on by
asserting that the Board therein erroneously applied Bill
Johnson’s as exemplified by its earlier decision in American
Pacific Concrete Pipe Co., 292 NLRB 1261 (1989). In
American Pacific the Board found Bill Johnson’s to be inap-
plicable where the employer’s lawsuit was preempted. In that
case the General Counsel had pursued a backpay claim on
behalf of an employee who entered into a private settlement
agreement with the employer. The employer sued the em-
ployee because he continued to press his backpay claim be-
fore the Board notwithstanding the settlement. The General
Counsel alleged that the private lawsuit was unlawful. Citing
footnote 5 of Bill Johnson’s, the Board observed that the Su-
preme Court’s reasonable basis discussion did not apply to
preempted lawsuits and thus it went on to consider the issue
of retaliatory motivation and, finding such motivation in the
case before it, also found a violation.
Although American Pacific was issued by the Board be-
fore its decision in Giant, the Board did not discuss Amer-
ican Pacific in Giant. Nor did it discuss it in its decision on
motion for reconsideration after being presented with the
General Counsel’s essential argument that preempted law-
suits are baseless. Even though the General Counsel’s motion
for reconsideration was denied on procedural grounds, I must
accept the Board’s decision in Giant as controlling. In Giant
the Board made it clear that, at least in a situation where the
employer is seeking to enforce its property rights against an
alleged trespass, the fact that a state court proceeding may
ultimately be preempted is insufficient to support a finding
that there is not a reasonable basis for the suit. As Chairman
Stephens points out in footnote 13 of Giant, the Supreme
Court’s decision in Sears, Roebuck & Co. v. Carpenters, 436
U.S. 180 (1978)—the lead case on preemption of trespass ac-
tions—seems to support the view that the filing of a state
court trespass action cannot be found to have lacked a rea-
sonable basis. Usually in these types of cases there is a tech-
nical trespass. At the very least, as Chairman Stephens fur-
ther notes, the Court’s Sears decision does not answer the
question of when, if ever, preemption applies where a charge
has been filed—a situation not presented in Sears because a
charge had not been filed in that case. Finally, contrary to
General Counsel’s contention, it is not imperative to make
the filing or maintenance of a trespass action, in the face of
a pending charge or complaint, an unfair labor practice in
order to protect the Board’s jurisdiction. The Board’s proc-
esses are adequately protected by virtue of its primary juris-
diction over the unfair labor practice proceeding itself and by
the supremacy of its ultimate resolution of the merits over
a contrary state court decision based on a trespass theory.
Furthermore, if the Board feels, in a particular case, that its
jurisdiction is being infringed on, it may independently au-
thorize a lawsuit to enjoin state court proceedings under
NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971).
In any event, even assuming that the state court lawsuits
were dismissed and it could be determined that they lacked
a reasonable basis, I do not believe that the filing of the state
court actions in this case were undertaken for a retaliatory
purpose. Respondent filed and maintained the lawsuits in
good faith in an attempt to preserve its position—the status
quo—pending the outcome of Board proceedings. Moreover,
aside from the mere filing and maintenance of the lawsuits,
the General Counsel cites no other evidence of retaliatory
motive. None exists on this record. Indeed, the evidence in
this case shows that Respondent permitted the Union to so-
licit employees on its property several months before its pro-
hibition against the instant activity when the issue was orga-
nization of the Respondent’s employees. The Respondent’s
conduct is thus a far cry from that of the employer in Amer-
ican Pacific or other cases in which the Board has found a
retaliatory motive. See Phoenix Newspapers, 294 NLRB 47
(1989); H. W. Barss Co., 296 NLRB 1286 (1989); compare
Allbritton Communications Co. v. NLRB, 766 F.2d 812, 823
(3d Cir. 1985), cert. denied 474 U.S. 1081 (1985), affirming
on this issue 271 NLRB 201, 208 (1984).
In these circumstances, I do not find that Respondent’s
lawsuits, aimed at enjoining technical trespasses which were
nevertheless protected by the Labor Act, were independently
unlawful. They were not undertaken without a reasonable
basis and they were not undertaken for a retaliatory motive.
This aspect of the complaint will therefore be dismissed.4
CONCLUSIONS OF LAW
1. By discriminatorily prohibiting representatives of the
Union from picketing and handbilling near the customer en-
trances to its store in St. Clairsville, Ohio, and from
handbilling near the customer entrances to its store in Wheel-
ing, West Virginia, Respondent has violated Section 8(a)(1)
of the Act.
2. The violations described above are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
3. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the policies of the Act.
951RIESBECK FOOD MARKETS
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Riesbeck Food Markets, Inc., St.
Clairsville, Ohio, and Wheeling, West Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily prohibiting representatives of United
Food and Commercial Workers International Union, Local
Union 23, AFL–CIO, CLC from picketing and handbilling
near the customer entrances to its store in St. Clairsville,
Ohio, and from handbilling near the customer entrances to its
store in Wheeling, West Virginia.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its stores in St. Clairsville, Ohio, and Wheeling,
West Virginia, copies of the attached notice marked ‘‘Appen-
dix.’’6 Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discriminatorily prohibit representatives of
United Food and Commercial Workers International Union,
Local Union 23, AFL–CIO, CLC from picketing and
handbilling near the customer entrances to our store in St.
Clairsville, Ohio, and from handbilling near the customer en-
trances to our store in Wheeling, West Virginia.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
RIESBECK FOOD MARKETS, INC.