Galleria Joint Venture

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