Sylvan Street Grille

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 975 (N.L.R.B. 1991)

975
303 NLRB No. 151
SYLVAN STREET GRILLE
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
In reaching his decision the judge found that the Union’s ‘‘relevant audi-
ence’’ consisted of patrons of restaurants or other establishments which pur-
chased and dispensed Kraft products, including the Respondent’s customers.
He determined that the issue of availability of reasonable alternative means
had to be considered on two ‘‘levels’’: (1) the availability of alternative means
to communicate with the Respondent’s patrons, and (2) the availability of
means to communicate generally with the customers of firms purchasing Kraft
products. He concluded that ‘‘even on the first, or immediate level, the Union
had reasonable alternative means to convey its message to the Company’s [Re-
spondent’s] prospective customers.’’ We agree, and thus find it unnecessary
to rely on his subsequent analysis regarding the ‘‘second or broader level’’
of conveying the message to other customers of firms purchasing Kraft prod-
ucts.
1 All dates are for the period of September 1, 1989, through August 31,
1990, unless otherwise indicated.
Essen Foods, Inc. d/b/a Sylvan Street Grille and
Teamsters Local Union 829, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Case 1–CA–27023(1)
July 31, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 10, 1990, Administrative Law Judge
Marvin Roth issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed cross-exceptions, a brief in support,
and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Kathleen G. Mathews, Esq. and Joseph F. Griffin, Esq., for
the General Counsel.
Laurence J. Donoghue, Esq., of Boston, Massachusetts, for
the Respondent.
Louis A. Guidry, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Boston, Massachusetts, on July 12, 1990.1 The
charge was filed on January 26 by Teamsters Local Union
829, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (the
Union). The complaint, which issued on March 9, alleges
that Essen Foods, Inc. d/b/a Sylvan Street Grille (the Com-
pany or Respondent) violated Section 8(a)(1) of the National
Labor Relations Act. The gravamen of the complaint is that
the Company allegedly unlawfully ordered union handbillers
to leave its property and cease distributing handbills to com-
pany customers in the parking lot of its Peabody, Massachu-
setts restaurant. The Company’s answer denies the commis-
sion of the alleged unfair labor practices. All parties were af-
forded full opportunity to participate, to present relevant evi-
dence, to argue orally, and to file briefs. General Counsel
and the Company each filed a brief.
On the entire record in this case and from my observation
of the demeanor of the witnesses, and having considered the
briefs and arguments of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a corporation, maintains an office and
place of business and is engaged in the operation of a res-
taurant known as the Sylvan Street Grille, which is located
on the city/town line of Danvers and Peabody, Massachu-
setts. In the operation of its business, the Company annually
derives gross revenues in excess of $500,000 and annually
purchases and receives at its restaurant goods valued in ex-
cess of $2000 indirectly from points outside of Massachu-
setts. I find, as the Company admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The parties stipulated to the following facts: Ernest
Tremblay Jr. is the president of Essen Foods, Inc. Chris-
topher Goding is manager of the Sylvan Street Grille.
Tremblay and Goding are supervisors and agents of the
Company within the meaning of Section 2(11) and (13) of
the Act. The Sylvan Street Grille is the sole occupant of a
building located on Sylvan Street, on the Peabody-Danvers
line. There is one customer entrance to the restaurant. The
restaurant entrance is accessible through either a wheelchair
ramp, or a set of two stairs. The stairs and ramp both lead
to a porch which is 26 feet by 8 feet. The actual doorway
is 6 feet wide. The driveway and parking lot for the Sylvan
Street Grille are located directly off Sylvan Street. A grassy
island is located between Sylvan Street and the restaurant
parking lot, on both sides of the restaurant driveway. A por-
tion of each island bordering Sylvan Street is public prop-
erty.
The parties further stipulated in evidence a 10-year lease
agreement executed on January 8, 1990 from Ernest
Tremblay Sr. (Tremblay Jr.’s father) to the Company for the
premises at 12 Sylvan Street, Peabody, Massachusetts. The
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lease provided that the premises were to be used only for the
purpose of a restaurant and lounge, and that the lease could
not be assigned. The lease further indicated that the leased
premises were more fully described in an annexed ‘‘Exhibit
‘A’.’’ The parties did not stipulate as to any ‘‘Exhibit ‘A’.’’
Company Attorney Jonathan Blodgett testified that he pre-
pared the lease agreement, that exhibit A was a site plan (in-
troduced in evidence as R. Exh. 2) and that the leased prem-
ises included the parking lot and surrounding grounds. The
restaurant is located on a tract of land owned by Tremblay
Sr., which also includes a motel (Victorian Motor Lodge)
and a miniature golf course (closed in winter). The motel
fronts on Andover Street (Route 114), which at this point
roughly forms sides of a triangle with Sylvan Street, as the
two streets approach their intersection. The miniature golf
course is located between the motel and the restaurant, with
access to Andover Street (whether the motel and golf course
have access to Sylvan Street through the restaurant parking
lot, is a matter in dispute, which will be discussed). There
is no access to the restaurant on either side, as the tract is
bounded by other private property. The site plan shows prop-
erty lines on both sides of the restaurant area (including
parking lot), and another line dividing the Tremblay tract
from the public property on Sylvan Street, but does not indi-
cate any property line at the rear of the restaurant area. How-
ever the site plan legend indicates that the restaurant has
parking spaces for 139 cars. General Counsel contends that
the Company failed to demonstrate any property interest in
the parking lot or surrounding grounds, i.e., in anything other
than the restaurant building itself. I do not agree. On the
basis of attorney Blodgett’s testimony, and the property lines
and reference to restaurant parking spaces contained in the
site plan, I find that the Company presented prima facie evi-
dence that its lease included the surrounding area. It is un-
likely that the Company would lease only the restaurant
building without the surrounding area, as this would deprive
the Company of any control over access to or from the res-
taurant building. Moreover, reference to a street address, as
in the present lease, normally refers to the entire property,
and not simply to the building located at that address. As
General Counsel has not rebutted the Company’s showing, I
find that the Company, since January 8, has had a leasehold
interest in the premises at 12 Sylvan Street, including the
restaurant building parking lot and surrounding grounds, but
not including the motel and miniature golf course.
Since late September 1989, employees of Kraft/S. S.
Pierce (Kraft) a food products distributor represented by the
Union, have been engaged in an economic strike against that
employer. Kraft’s principal area facility is located in Pea-
body. The Kraft Peabody facility normally services some
10,000 accounts throughout eastern New England, including
restaurants and other commercial customers. In support of
the strike, the Union has handbilled and picketed around
Kraft trucks, distributed handbills at restaurants which pur-
chased Kraft products, and placed newspaper advertisements
concerning the strike. The handbills which were distributed
at restaurants, presented the Union’s grievances against
Kraft, asking whether readers could ‘‘swallow the food
served here’’ if they were aware of these grievances. The
handbill urged prospective patrons ‘‘to please not swallow
the Kraft/S. S. Pierce food served here.’’ The handbills did
not contain the restaurant’s name, and asserted that ‘‘this
message is not an appeal to any person to refuse to patron-
ize, pick up, deliver, or transport any goods, or not to per-
form any services.’’
Danny Dostert is a union member and striking Kraft truck
driver. He knew the identity of many Kraft customers.
Dostert testified in sum as follows: On December 10 he and
Kraft striking driver Tom Burns decided to check out the
Company’s restaurant. They looked in the dumpster and saw
a Kraft container with an invoice sticker dated January 9,
which indicated that the Company purchased Kraft products.
At about 12:30 p.m. they commenced distributing handbills.
Each stood at the foot of a set of stairs, to one side, and they
did not block access. Dostert stood by the stairway nearest
to the parking lot. Two men came out the front door. The
first man, who wore a chef-type jacket, told them to get the
hell out of there. Dostert refused, saying they had a right to
be there. Dostert explained they were handbilling because the
Company was buying from Kraft. (Dostert did not see either
man in the hearing room). About 20 minutes later the two
men came out again. The first man said he was the manager,
and would speak to the owner and see what he could do for
them. Some 15 to 20 minutes later the ‘‘manager’’ came out
again. He asked about the strike, and said that the handbillers
should go out to the road. Dostert replied that it was dan-
gerous because of heavy traffic, and they would miss the
people. On either the second or third occasion a third man
wearing a business suit came out of the restaurant. (Dostert
initially testified that he did not see the man in the hearing
room, but subsequently indicated that he might be Company
Attorney Robert Morris.) The man said they should handbill
on the sidewalk. Dostert answered that there was no side-
walk. Dostert and Burns remained at the restaurant entrance
for about 2 hours. At about 5:30 p.m. Dostert returned to
handbill with his 14-year-old son. By this time it was dark.
The second man came out and said they were trespassing and
had to leave. Police arrived, and told Dostert the same thing.
Dostert said he understood they had a legal right to be there.
The police said he would have to take it up with the Union,
which could discuss the matter with the police chief. The po-
lice did not suggest alternative handbilling locations. Dostert
and his son left, and the union handbillers did not return.
They did not handbill at the entrance to the parking lot be-
cause it was too dangerous, cars might not stop, and some
customers might enter through the rear, i.e., from Andover
Street through the motel area. However so far as Dostert
could see, all customers came by car and entered from Syl-
van Street. Dostert did not testify, nor was other evidence
presented which would indicate that the parking lot was com-
monly used by persons other than restaurant patrons. Dostert
handbilled at some 100 facilities over a 6- to 8-week period,
but was stopped on only 2 other occasions (one of which
was resolved).
Company Shift Manager Christopher Goding and Attorney
Blodgett were present at the hearing and presented as wit-
nesses. Goding’s testimony substantially consisted of identi-
fication of his affidavit to the Board’s Regional Office,
which General Counsel presented in evidence. General Coun-
sel also presented Blodgett’s affidavit in evidence. Dostert,
Blodgett and Goding were the only witnesses in this pro-
ceeding. Blodgett testified (including his affidavit), in sum as
follows: On January 10 at about 12:30 p.m. he was at the
restaurant for lunch. Two handbillers were standing at the
977SYLVAN STREET GRILLE
foot of and alongside a stairway. One came onto the stairs
when Blodgett approached. Blodgett came out, identified
himself as the Company’s attorney, and told the handbillers
this was private property, there was a no solicitation rule,
and they should move to a different area of the parking lot.
Blodgett pointed to a curb cut in the ‘‘sidewalk,’’ specifi-
cally, an area within the parking lot, next to the grassy is-
land, on the driveway side farthest from the restaurant build-
ing, about 50 to 100 feet from the restaurant door. However
there were so many curb cuts that Blodgett could not say
there was actually a sidewalk. Manager Goding also spoke
to the handbillers, but President Tremblay said he did not.
There is a restaurant sign which indicates parking for guests
only, and a window sign which prohibits solicitation. There
is no special pedestrian entrance to the restaurant. However
some patrons may park elsewhere and walk to the restaurant
(through the parking lot), particularly if the restaurant lot is
full. There is a chain link fence which separates the res-
taurant premises from the motel parking lot. There is a break
in the fence. Barrels were placed in the break. However it
is possible for cars to drive through the break.
Manager Goding, in his affidavit, stated in sum as follows:
On January 10 during the lunch period, two men distributed
handbills at the restaurant. They stood at the foot of and to
one side of a stairway, although one later moved to the foot
of the wheelchair ramp. They did not block access. Acting
on instructions from president Tremblay, Goding told them
they were on private property and asked them to leave. They
refused, saying they had a legal right to be there. This was
Goding’s only conversation with the handbillers. Tremblay
instructed Goding to call the police, which he did.
Handbillers were present on two other occasions at the res-
taurant, including the following day. There is a sidewalk
along Sylvan Street, broken only by curb cuts into the res-
taurant parking lot.
I find that Dostert’s testimony substantially reflects what
transpired at the restaurant on January 10, but with some
qualifications. Dostert was the only witness to give a com-
plete narrative of the day’s events, although he plainly did
not have a clear recollection of the persons to whom he
spoke. Dostert initially spoke to manager Goding, who told
the handbillers to leave. However after consultation between
Tremblay and his attorney, Blodgett came out and suggested
that they could handbill elsewhere, pointing to the area (as
testified by Blodgett) which he erroneously described as
sidewalk. In fact there is no sidewalk adjacent to the res-
taurant premises. Rather, as indicated by the stipulation of
facts and site plan, the restaurant premises are bounded on
Sylvan Street by two grassy areas and curb cuts which can
be used as driveways into and out of the restaurant premises.
Dostert and Burns did not handbill on the steps or otherwise
block access to the restaurant. Indeed no witness claimed that
they engaged in such activity. Rather they handbilled at the
foot of and to the side of the steps. When they persisted in
handbilling at this location, the Company summoned the
local police. Dostert and his son returned later that day,
whereupon the police, probably accompanied by Tremblay,
told them to leave, which they did. I credit Dostert’s testi-
mony that he did not return to the restaurant. If anyone did
handbill thereafter, it was probably another person.
B. Analysis and Concluding Findings
The starting point for analysis is Jean Country, 291 NLRB
11 (1988), which sets forth the tests for nonemployee access
cases. The Company argues that the Jean Country analysis
is flawed and contrary to Supreme Court precedent, because
it takes into consideration the relative strength of the prop-
erty and Section 7 rights asserted respectively by the em-
ployer and labor organization involved. The Company recog-
nizes that I am bound by Board precedent, but wishes to pre-
serve its position. Moreover, the Company’s position is erro-
neous. See the Board’s discussion and analysis of applicable
Supreme Court decisions in Fairmont Hotel, 282 NLRB 139,
140–141 (1986). These decisions, specifically NLRB v. Bab-
cock & Wilcox, 351 U.S. 105 (1956), Hudgens v. NLRB, 424
U.S. 507 (1976), and Sears, Roebuck & Co. v. San Diego
County Council of Carpenters, 436 U.S. 180 (1978), make
clear that the relative strengths of the property and Section
7 rights are appropriate factors for consideration in resolving
these access cases. See also Lechmere, Inc., 295 NLRB 92
(1989), enfd. 914 F.2d 313 (1st Cir. 1990).
Under Jean Country, three factors must be considered: (1)
the strength of the property interest asserted by the employer;
(2) the strength of the Section 7 right invoked by the union;
and (3) the availability of reasonable alternative means for
the Union to communicate its message to a relevant audi-
ence, other than the means prohibited by the employer. The
first two factors present little difficulty when applied to the
evidence in this case, because the Board has assessed these
factors in comparable situations. A leasehold interest, as
here, is a legitimate property interest for purposes of the
analysis. Jean Country, supra; Red Food Stores, 296 NLRB
450 (1989). The Company’s asserted property interest is
comparable to that invoked by employees in Federated De-
partment Stores, 293 NLRB 408 (1989); and Mountain
Country Food Store, 292 NLRB 967 (1989). In Federated
Department Stores, the Board found as follows:
In this case, each of the Respondent’s two stores is
a freestanding structure owned by the Respondent and
situated by itself on its own parking lot provided for its
own customers. At all relevant times, neither store
shared its sidewalk, parking lot, or access roads with
the customers of any other merchant. There is no evi-
dence that the Respondent invited the public onto the
premises of either of the two stores for any purpose
other than to purchase goods from the stores. On the
other hand, the Respondent’s stores are retail operations
generally open to the public without overt restriction.
Under these circumstances, we find that the Respondent
was asserting a substantial private property interest
when it prevented nonemployees from handbilling on
its property.
In Federated Department Stores, the respondent was the
owner rather than the lessee of the property. In the other re-
spects described by the Board, the facts were comparable to
the present case. However in Mountain Country, which also
involved a comparable situation, i.e., freestanding retail fa-
cilities, with their own parking lots, the respondent had lease-
hold rather than ownership interest. The Board held that the
respondent’s property interest was ‘‘relatively substantial.’’
There is another factor which tends to strengthen the prop-
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erty interest here invoked. The Company did not exclude the
Union from all of its leasehold property. Rather it prohibited
handbilling only at the immediate entrance to the restaurant
building, i.e., the immediate locus of its business operation.
I find on the authority of Federated Department Stores and
Mountain Country Food Store, that the Company asserted a
substantial private property interest.
The second Jean Country factor is also governed by
Mountain Country. The Board held:
With respect to the Union’s activities, we agree with
the judge that the Union’s handbilling, which is in sup-
port of its primary economic dispute with the bottling
company, is clearly protected by Section 7. The type of
‘‘struck product’’ consumer handbilling engaged in by
the Union here was recognized as being protected activ-
ity by the Supreme Court in its 1964 Tree Fruits deci-
sion (NLRB v. Fruit Packers Local 760, 377 U.S. 58).
Accordingly, we find that the right asserted here is a
relatively strong Section 7 right. Further, as the judge
found, there is no evidence that the handbillers inter-
fered significantly with ingress or egress at any of the
four stores, and the number of handbillers at each store
was reasonable. The handbilling was peaceful; no em-
ployees or customers were harassed, and deliveries
were not obstructed. Thus, the manner in which the
Union engaged in its conduct does not diminish the
strength of the Section 7 right. Under the cir-
cumstances, we find that the Union’s Section 7 right in-
volved here is certainly worthy of protection against
substantial impairment.
In the present case, the Company does not dispute that the
Union engaged in consumer handbilling recognized as pro-
tected activity under uTree Fruits. On the authority of Moun-
tain Country, I find that the Union here asserted ‘‘a rel-
atively strong Section 7 right.’’
In sum, the Company here invoked a relatively substantial
property interest, and the Union asserted a relatively strong
Section 7 right. Therefore neither factor outweighs the other
or tilts the balance in favor of the Company or the Union.
This leaves the third and decisive factor, namely, the avail-
ability of reasonable alternative means of communication to
the relevant audience. Put another way the ultimate question
is whether the Company’s conduct substantially impaired the
Union’s Section 7 rights. Mountain Country. Here, the rel-
evant audience consisted of the patrons of restaurants or
other establishments which purchase and dispense Kraft
products, including the Company’s customers. Therefore the
question of alternative means must be considered on two lev-
els: The availability of alternative means to communicate
with the Company’s patrons, and the availability of means to
communicate generally with the customers of firms pur-
chasing Kraft products. Some factors to be considered are set
forth in Lechmere, supra. ‘‘A claim that the Union’s intended
audience consists of customers of every establishment that
has even a remote connection to [the primary] target em-
ployer will not necessarily warrant access to any and all sites
at which such customers may be found, even if access to pri-
vate property might be necessary to reach customers at one
such site.’’ Hardee’s Food Systems, 294 NLRB 642 (1989),
affd. sub nom. Laborers Local 204 v. NLRB, 904 F.2d 715
(D.C. Cir. 1990), citing Jean Country.
Applying the Board’s standards to the present case, I find
that even on the first, or immediate level, the Union had rea-
sonable alternative means to convey its message to the Com-
pany’s prospective customers. The Company did not exclude
the Union from its entire premises. Rather the Company of-
fered an alternative which permitted the Union to distribute
its handbills on the Company’s own property, at the drive-
way entrances to its parking lot. The Company did not force
the handbillers to go on or adjacent to the public roadway.
Attorney Blodgett did not direct the handbillers to a dan-
gerous location. Rather he directed them to an area where
vehicles would be proceeding slowly as they entered the
parking lot, looking for parking spaces, and where patrons
would be walking toward the restaurant. For these reasons
also, the Union would have reasonable opportunity to offer
patrons its literature. As discussed, the evidence indicates
that few if any patrons entered the restaurant premises
through the rear, i.e., by approaching through the rear of the
motel premises. The location designated by Blodgett would
be less effective than a direct confrontation at the stairway
entrance. However the Act, as interpreted by the Supreme
Court and the Board, ‘‘acknowledges the need for reasonable
means of communication, not the most effective means.’’
Hardee’s Food Systems. Compare Red Food Stores, supra, in
which the Board found that area standards handbilling at the
‘‘perimeters’’ of two retail stores, specifically, grassy areas
separating the parking lots from adjoining thoroughfares,
coupled with a media campaign constituted ‘‘a reasonable,
effective alternative to entry onto the [store] property.’’ In
the present case, the Company offered a better alternative,
namely, handbilling within its property and on its own park-
ing lot. In the present case, unlike Red Food, the Union did
not even bother to make use of this alternative. The Union’s
response in ignoring the Company’s invitation, also tends to
indicate that on the second or broader level, the Union had
reasonable alternative means of conveying its message. As
found, the Union distributed handbills at numerous establish-
ments doing business with Kraft, but was stopped on only
a few occasions. In sum, the handbilling at the Company’s
restaurant constituted only a small part of the Union’s cam-
paign (which also included use of the media). I find that the
Union had reasonable alternative means for conveying its
message to the relevant audience, and that the Company did
not substantially impair the Union’s Section 7 rights by pro-
hibiting handbilling in the area of the entrance to the res-
taurant building. Therefore the Company did not violate the
Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 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. The Company did not violate Section 8(a)(1) of the Act
as alleged in the complaint.
979SYLVAN STREET GRILLE
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed.