Simon Debartelo Group

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 347 NLRB No. 26 282 Simon Debartelo Group a/w M. S. Management As- sociates, Inc. and Local 32B-32J, Service Em- ployees International Union.1 Case 29–CA– 23218–1 May 31, 2006 ORDER REMANDING PROCEEDINGS BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On December 1, 2000, Administrative Law Judge Howard Edelman issued the attached decision in this case. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. The General Counsel and the Charging Party filed lim- ited cross-exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Consistent with our decision in Dish Network Service Corp., 345 NLRB 1071 (2005), the Board has decided to remand this case in order for another judge to review the record and issue an appropriate decision.2 In this case and in many others, the same judge has copied extensively from the General Counsel’s brief in his decision. In each case, the judge then decided the case in favor of the General Counsel.3 Our comparison of the General Counsel’s brief and the judge’s decision reveals that the majority of the judge’s decision was cop- ied verbatim from the General Counsel’s posthearing brief. The judge copied verbatim from the General Counsel’s brief in both his factual statement and his legal discussion. In Dish Network, supra at 1071, we said: “[I]t is essential not only to avoid actual partiality and prejudgment . . . in the conduct of Board proceedings, but also to avoid even the appearance of a partisan tri- bunal.” Indianapolis Glove Co., 88 NLRB 986 (1950). See Reading Anthracite Co., 273 NLRB 1502 (1985); Dayton Power & Light Co., 267 NLRB 202 (1983). Considering the instant case in the context of all of these cases as a whole, the impression given is that Judge Edelman simply adopted, by rote, the views of the Gen- 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. 2 Member Liebman dissents from the remand order for the reasons stated in her dissent in Regency House of Wallingford, 347 NLRB 173 (2006). 3 See CMC Electrical, 347 NLRB 273 (2006); Eugene Iovine, 347 NLRB 258 (2006); Regency House of Wallingford, 347 NLRB 173 (2006); Trim Corp., 347 NLRB 264 (2006); J.J. Cassone Bakery, Inc., 345 NLRB 1305 (2005); Dish Network Service Corp., 345 NLRB 1071 (2005); Fairfield Tower Condominium Assn., 343 NLRB 923 (2004). eral Counsel and failed to conduct an independent analy- sis of the case’s underlying facts and legal issues. We recognize that the Respondent did not specifically except to the judge’s extensive copying. However, that fact does not, and should not, preclude the Board from taking corrective measures. It is the Board’s solemn ob- ligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality. We understand that this remand delays the issuance of a Board decision, and this may inconvenience the parties. However, we believe that the fundamental necessity to insure the Board’s integrity outweighs these considera- tions. In order to dispel this impression of partiality, we will remand the case to the chief administrative law judge for reassignment to a different administrative law judge. This judge shall review the record and issue a reasoned decision.4 We will not order a hearing de novo because our review of the record satisfies us that Judge Edelman conducted the hearing itself properly. ORDER IT IS ORDERED that the administrative law judge’s deci- sion of December 1, 2000, is set aside. IT IS FURTHER ORDERED that this case is remanded to the chief administrative law judge for reassignment to a different administrative law judge who shall review the record of this matter and prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based on the evidence re- ceived. Following service of such decision on the par- ties, the provisions of Section 102.46 of the Board’s Rules and Regulations shall apply. Haydee Rosario, Esq., for the General Counsel. Douglas J. Heckler, Esq. (Barnes & Thornburg), for the Re- spondent. Rebecca Schleifer, Esq. and Larry Engelstein, Esq. (SEIU), for the Charging Party. 4 The new judge may rely on Judge Edelman’s demeanor-based credibility determinations unless they are inconsistent with the weight of the evidence. If inconsistent with the weight of the evidence, the new judge may seek to resolve such conflicts by considering “the weight of the respective evidence, established or admitted facts, inher- ent probabilities, and reasonable inferences which may be drawn from the record as a whole.” RC Aluminum Industries, Inc., 343 NLRB 939 fn. 2 (2004), quoting Daikichi Sushi, 335 NLRB 622, 623 (2001) (in- ternal quotation marks and citations omitted). Alternatively, the new judge may, in his/her discretion, reconvene the hearing and recall wit- nesses for further testimony. In doing so, the new judge will have the authority to make his/her own demeanor-based credibility findings. SIMON DEBARTELO GROUP 283 DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on June 20, 2000, in Brooklyn, New York. Pursuant to a charge filed by Local 32B-32J, Service Em- ployees International Union, AFL–CIO (the Union, a complaint and notice of hearing issued on March 20, 2000, alleging that Simon DeBartelo Group a/w M. S. Management Associates, Inc., the Respondent, at its Roosevelt Field and Smith Haven Malls (the Malls), violated Section 8(a)(1) of the Act, by inter alia, informing employees that union solicitation was not per- mitted at the Malls; engaging in surveillance of employees’ union activities; directing employees to cease distribution of union leaflets to the public and to leave its parking lot; sum- moning the Suffolk county police to have employees who were distributing union leaflets removed from the parking lots of the Malls, and threatening employees to call the police and report them if they continued to distribute union leaflets to the public. On the entire record in this case, including, my observations of the demeanor of witnesses, and briefs filed by counsel for the General Counsel, counsel for the Union, and counsel for the Respondent, I make the following FINDINGS OF FACT Respondent, is a Delaware corporation, owns and manages numerous shopping malls throughout the United States, includ- ing the Smith Haven and the Roosevelt Field Malls, herein collectively (the Malls), which are located in Suffolk and Nas- sau Counties respectively, in the State of New York. During the past 12 month period, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations, derived gross rent revenues from stores located in the malls in excess of $100,000, of which in excess of $25,000 was derived from Federated Stores, Inc. Federated Stores, Inc. is engaged in the retail sale of goods, and leases stores from Respondent at its Smith Haven Mall, and its Roosevelt Field Mall. During the past 12 month period, which period is representative of its annual operations gener- ally, in the course and conduct of its business operations, Fed- erated Stores, Inc. purchased and received at its New York facilities, goods valued in excess of $50,000 directly from en- terprises located outside the State of New York. It is admitted that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also admitted that the Union is a labor organization within the meaning of Section 2(5) of the Act. Respondent contracted its janitorial and maintenance ser- vices for the Malls to Control Services Inc. (Control). In or about July 1999, the Union began its campaign to organize the maintenance employees at various Long Island shopping malls, including the employees of Control employed at the Malls. As part of the organizing drive, certain employees of Control who worked in the Malls assisted the Union with its campaign by distributing Union leaflets to other employees and the public. With respect to the distribution of literature at the Malls, Re- spondent maintains posted rules to the public which state, inter alia, that “picketing, distributing handbills, soliciting and peti- tioning require prior written consent of mall management.” Respondent has an access permit policy which requires indi- viduals wishing to solicit or distribute materials at the Malls to complete an application to obtain use of the common areas in the Malls. The Union began an organizing campaign to organize the employees of Control working at Respondents malls sometime in August 1999. On or about August 19, Kevin Stavris, Angel Gonzalez, and Francisco Chang, the union representatives involved in the organizing drive, met at the Roosevelt Field Mall with about 5 to 10 employees employed by Control. The union representa- tives initially met employees inside the Mall in an area adjacent to Sbarro’s Restaurant on the first floor of the mall. While the employees and organizers were outside Sbarro’s Restaurant. Angelo Scala, the director of security at the Roosevelt Field Mall, and an admitted supervisor within the meaning of Section 2(11) of the Act, approached the employees and informed them that soliciting was not allowed in the Mall. Because of Scala’s objection, the organizers and employees entered the Sbarro’s Restaurant where they met while having pizza. However, Scala did not leave the area when the employees entered the restau- rant. Rather, he stayed in front of the restaurant observing the employees and the organizers through a glass window, which separates the Sbarro’s Restaurant from the Mall corridors. Stavris, the union organizer, testified that Scala and other Re- spondent’s representatives remained standing in front of the restaurant for about 15 minutes observing the employees and the union representatives who were inside the restaurant. Scala, testified that immediately after he told the employees and union organizers that they could not congregate in the com- mon area, the group moved inside Sbarro’s Restaurant where they continued their meeting. Scala testified that he stood in front of the Sbarro’s Restaurant to observe the employees be- cause he wanted to ensure that the group would not come out to the common area. According to Scala, he stayed at least 5 minutes observing the group inside the restaurant. Scala also admitted during his testimony that he reported the employees’ meeting with the union representatives to Respondent’s higher management. In this regard, Scala stated that he reported, “Just who was there, that they were union, their representatives was there and some of the employees of Control.” On or about August 28, about five to eight employees of Control distributed union leaflets on the sidewalk in front of the entrance to the Smith Haven Mall which is located in front of the food court of the Mall. That day, the employees also dis- tributed leaflets in the parking lot of the Smith Haven Mall. The employees were accompanied by Kevin Stavris, Johnny Patterson, Alberto _______, Carlos Cortez, and Howard Raze, the union organizers. It is undisputed that the employees dis- tributing union leaflets were regularly assigned to work at the Smith Haven Mall and that the union leafleting occurred during employees’ nonworking time. The leaflet distributed on Au- gust 28 at the Smith Haven Mall, is entitled “Important Shop- pers Advisory,” and states, inter alia, the following: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284 We are appealing for your support in our effort to unionize because Control Services is NOT TREATING US FAIRLY . . . Ask SIMON administration to do the right thing. Ask them why they are using a contractor that is unfair to workers. Ask them to use a contractor that respects workers rights . . . On August 28, Respondent’s agents at the Smith Haven Mall directed employees of Control to cease distributing union leaf- lets to the public and to leave the sidewalk of the Mall and the parking lot. Kevin Stavris testified that Trombino, the Director of security at the Smith Haven Mall, and an admitted supervisor within the meaning of Section 2(11) of the Act approached the group of employees and organizers and told them that “[t]his is not going on here today.” Stavris further testified that about six police cars arrived at the scene. The police told the employees and organizers that they could not distribute the flyers at the Mall because of Respondent’s objections. While Stavris was discussing with the police, the employees’ right to distribute the union leaflets, Dennis Hejen, respondent manager of Smith Haven Mall, approached the group which was in the parking lot. The uncontroverted testimony of Stavris establishes that, after some discussion with the police, Hejen “yelled” to the police to arrest the employees and organizers if they stayed in Respondent’s property. On or about September 24, at the Roosevelt Field Mall, two employees of Control distributed union leaflets to the public. The employees were standing on the sidewalk outside the Grand entrance to the Mall. It is undisputed that the Roosevelt Field Mall was the regular work place for these two employees and that they were leafleting during their nonworking time. The leaflet, entitled “Important Shoppers Advisory,” is the same as the one distributed by employees on August 28, at the Smith Haven Mall. At the time, Respondent’s agents told two employees that they were not allowed to distribute the union leaflets on Respondent’s property and that if they continued to do so, they would be arrested. They did not distribute the leaf- lets. On October 20, the employees of Control, accompanied by the union organizers, met with Respondent’s manager, Jim Lundgren. During their meeting, the employees gave Lundgren a letter dated October 20, addressed to him. In the letter, em- ployees informed Lundgren, in part, of certain problems en- countered by employees with their maintenance work and the conditions of the bathrooms in the Malls. The letter also stated that employees are “concerned that [they] will get disciplined because customers may see and report problems with the main- tenance and bathrooms.” It further stated that the employees have reported the conditions enumerated in the letter to the supervisors of Control, but that the problems have not been resolved. On October 23, employees of Control whose regular work- place was the Smith Haven Mall distributed union leaflets to the public. The employees were accompanied by the union organizers. While distributing the union leaflets, they were standing on the sidewalk outside the main entrances to the Smith Haven Mall. These employees were on their nonwork- ing time. It is undisputed that Respondent’s agents directed the employees of Control to cease distributing union leaflets to the public and threatened to call the police if they continued to distribute leaflets to the public. The leaflets distributed to the public contained pictures of cockroaches, and stated, in part, “Here’s What Control Workers—The Cleaning Contractor at Smith Haven Mall—Face When We Take Our Lunch Breaks!”. Trombino, respondent security director, testified that he was present during the employees’ handbilling to the public. He testified that, with the exception of one individual, employees were “civil” and that they were just leafleting. He claimed, however, that one of the individuals distributing the flyers was stepping up and down on a bench and got down on his stomach emulating a cockroach. However, a review of the videotape in evidence which covers the leafleting at the Smith Haven Mall on October 23, does not show any disruptive conduct on the part of any of the individuals in handbilling. The recording of the leafleting in front of the Smith Haven Mall begins at about 12.42 p.m., and it shows employees peacefully distributing the leaflets to the public. At about 12:46 p.m., the recording shows that the first security guard approached the employees handbill- ing, and at about 12:48 p.m., an individual who appears to be Trombino also approached the group. The security officers remained with the group while they were handbilling until ap- proximately 1:12 p.m., when the employees and other individu- als leafleting had to leave the entrance of the Mall. The re- cording does not show any disruptive conduct on the part of the employees or organizers who were leafleting. Analysis and Conclusions Whether an employer’s observations of the employees’ un- ion activities constitutes unlawful surveillance involves a de- termination of whether, under the circumstances, the conduct would tend to interfere with, restrain, or coerce employees in their right to organize under Section 7 of the Act. Metal Indus- tries, 251 NLRB 1523 (1980). The totality of the circumstances in this case show that on August 19, the Respondent’s observations of employees’ meet- ing with the union organizers by Security Director Scala in the Sbarro’s Restaurant at the Roosevelt Field Mall, unlawfully interfered with employees’ union activities. Scala’s observa- tions were part of Respondent’s efforts to keep employees’ union activities out of the Malls, including its public and non- sales areas such as the restaurant. This is also evidenced by Respondent’s admission that employees were not allowed to peacefully distribute union literature in their nonworking time and in nonsales areas. Specifically, Scala’s testimony that he stood outside the Sbarro’s Restaurant to observe employees meeting immediately after he told them that they were not al- lowed to solicit at the Mall, is sufficient to establish unlawful interference with employees union activities. Scala’s testimony that he stood outside the restaurant just to ensure that employees’ would not come out to the common areas is disingenuous, unconvincing, and not credible. Scala’s testimony indicates that employees did not pose any challenge to his request for them to move out of the Mall’s corridor. Thus, there was no reasonable basis for him to think that once employees were inside, sitting down ordering pizza, they would SIMON DEBARTELO GROUP 285 again come out of the restaurant to stand in the same place where they were asked to move. Further, Scala’s testimony that he reported the meeting to Respondent, i.e., “Just who was there, that they were union, their representative was there and some of the employees of Control . . ., is sufficient to establish that he stood in front of the Mall to unlawfully surveille em- ployees’ union activities and it was intended to discourage them from engaging in any union activities at the Malls. Eddyleon Chocolate Corp., 301 NLRB 887 (1991), where the Board found that the employer engaged in unlawful surveillance when president of the company closely observed union leafleting while speaking on the car and later ordered participants to leave premises. Respondent’s massage was clear, it did not want employees at the Malls meeting with their union organizers and it did not want them distributing union leaflets in any part of the Malls. In view of the absence of any evidence of disruptive conduct on the part of the employees or organizers, I conclude Scala’s surveillance of employees’ union meeting and his report to Respondent of the employees meeting with their union organiz- ers, is violative of Section 8(a)(1) of the Act. It is well settled law that an employee has the right to dis- tribute union literature during their nonworking time and in nonworking areas. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Hudgens v. NLRB, 424 U.S. 507 (1976); Gayfers Department Store, 324 NLRB 1246 (1997). Historically, the Courts and the Board have recognized the fundamental differ- ence between the rights of employees to organize under Section 7 of the Act, and the rights of union organizers. NLRB v. Bab- cock & Wilcox, 351 U.S. 106 (1956). With respect to the dis- tribution of union literature, the Supreme Court has made a “critical distinction” between employee and nonemployee so- licitation. Lechmere, Inc. v. NLRB, 502 U.S. 527, 529 (1992). In Lechmere, the Court reaffirmed its holding in Babcock & Wilcox, that an employer may bar nonemployee union organiz- ers from its property unless there is no reasonable nontresspas- sory means for them to communicate. Lechmere, supra, 502 U.S. at 535. However, when the rights of employees are in- volved, as in the instant case, the employer’s managerial rights, rather than his property rights, are at issue. Republic Aviation, supra; Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). The Board in Gayfers Department Store, supra, a case ex- actly like the instant case, held that the applicable standard in cases involving the rights of employees to distribute union lit- erature during their nonworking time is the Republic Aviation standard, where the Supreme Court held that an employer may not bar the distribution of union literature by employees who are in nonworking areas of its property during their nonworking time unless the employer can show that its nonsolicitation rule is necessary to maintain discipline and production. The Board further held that employees who are working regularly and exclusively on the premises of an employer other than their own, as in the instant case, are “already rightfully” on the prop- erty pursuant to their employment relationship. Gayfer, 324 NLRB at 1250, quoting Southern Service, 300 NLRB 1154 (1990), enfd 954 F.2d 700 (11th Cir. 1992); and Hudgen, supra 424 U.S. at 521 fn. 10. Gayfer involved union leafleting during an organizing drive by electrical employees who were assigned to work at Gayfer’s department stores pursuant to their employment relationship with Baroco. Gayfer had a published no solicitation rule which prohibited the distribution of written or printed materials in the selling areas of any time during store’s opened hours or at any other place on Gayfer’s property. In applying the Republic Aviation standard, the Board held that Gayfer violated Section 8(a)(1) of the Act, when it interfered with employees’ handbill- ing at the entrances of its stores during their nonworking time in nonsales areas. In addition, the Board held that Gayfer’s no solicitation rule was overly broad and in violation of Section 8(a)(1) of the Act, because it prohibited solicitation and distri- bution in nonselling areas of the premises, including the exte- rior areas, during breaktimes and between employees’ shifts. Gayfer, 324 NLRB at 1251, citing Our Way, Inc., 268 NLRB 394 (1983). In the instant case, the underlying facts relating to Respon- dent’s interference with the right of Control employees to dis- tribute union literature are undisputed. The Malls of Respon- dent is the place where Control employees are regularly as- signed to work. On August 19 and 28, September 24, and Oc- tober 23, Control employees were distributing union leaflets during their nonworking time in nonsales areas outside the Malls. Specifically, they were on the sidewalk in front of the entrances of the Malls and in the parking lots of the Malls. With the exception of the October 23 incident at Smith Haven Mall, it is also undisputed that the employees’ leafleting was peaceful and that their conduct consisted only in distributing the union leaflets. Thus, the totality of the uncontroverted re- cord shows that the Control employees’ distribution of litera- ture was protected under the Republic Aviation standard. Re- spondent did not submit any evidence to show that, consistent with Republic Aviation, the employees’ leafleting should not be protected because it interfered with the operations and mainte- nance of the Malls. Under Board law, an employer may also ban distribution of literature on selling areas or selling floors. See J. C. Penny Co., 266 NLRB 1223 (1983). However, the record evidence in the instant case shows that Control employees were distributing the union leaflets in nonsales areas outside the Malls. Thus, the justification articulated by the Board in J. C. Penny for banning employees’ handbilling in stores, is not applicable in the instant case. Respondent’s contention that, as a property owner, it had the right to ban the employees’ distribution of literature to pro- tect its customers and its business, is not supported by the re- cord evidence since Respondent did not show any disruption in its operations and is not supported by the law which provides that employees can peacefully handbill customers of mall stores. DeBartelo Corp. v. Florida Gulf Coast Building Trades Council, 485 U.S. 568, 583–588 (1988). Further, Respondent’s posted rules banning the distribution of written materials and solicitation in common areas without first obtaining a permit from Respondent. An employer’s rules which prohibit solicitation and distribution during employees’ nonworking time and in nonwork areas is presumptively unlaw- ful. Ichikoh Mfg., 312 NLRB 1022 (1993), where the Board found unlawful a rule requiring prior written consent for solici- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286 tation and distribution of literature. See also Our Way, Inc,. supra. In some instances, the Board had held such overly broad rules to be lawful if an employer can show that it communi- cated or applied the rule in a manner that it showed employees its intent to permit solicitation during their nonworking time. Our Way, Inc., 268 NLRB at 395 fn. 6 (citing Essex Interna- tional, supra). However, the evidence in the instance case does not show that such clarification was made by Respondent. To the contrary, the stipulated record shows how Respondent re- peatedly informed employees during their nonworking time and in nonsales areas that solicitation was prohibited at its facilities. In view of the foregoing, I conclude Respondent’s posted rules are in violation of Section 8(a)(1) of the Act. With exception of the August 28 threat to arrest employees for distributing union leaflets at the Smith Haven Mall, Re- spondent admits that it engaged in the conduct alleged in the instant complaint relating to the distribution of union literature. The uncontroverted testimony of union organizer Stavris shows that on August 28, in the parking lot at the Smith Haven Mall, Respondent’s manager, Hejen, “yelled” to the police to arrest employees for distributing Union leaflets in its parking lot. Thus, the conduct of Respondent, as alleged in the complaint, is undisputed. Respondent contends that the facts of the instant case are controlled by the Supreme Court’s holding in Lechmere, and that Republic Aviation must be reading light of, and limited by Lechmere. In fact, the reverse is true. Despite the Court’s board lan- guage, Lechmere has only a limited effect. By own terms, Lechmere applies only to nondiscriminatory prohibitions an nonemployee attempts to communicate with employees on the employer’s property. See John Ascuaga’s Nugget v. NLRB, 968 F.2d 991, 997–998 (9th Cir. 1992). The instance case is clearly controlled by Republic Aviation and Gayfers. Accordingly, I conclude that based upon Respon- dent’s conduct described above, Respondent violated Section 8(a)(1) of the Act by: informing Control employees that union solicitation was not permitted at the Malls; directing employees to cease distributing union leaflets to the public and asking them to leave the Malls; calling the Suffolk county police to have the Control employees removed from the Malls and the parking lots because they were distributing union leaflets; and by threatening Control employees that Respondent would call the police if they did not cease distributing union leaflets and leave the Malls’ premises. An employee may communicate with a third party in an ef- fort to obtain the third party’s assistance in circumstances where the communication is related to a legitimate labor dis- pute between the employees and their employer. Emarco, Inc., 284 NLRB 832, 833 (1987), citing NLRB v. Electrical Workers Local 1229, 346 U.S. 464 (1953); (Allied Aviation Service Co., 248 NLRB 229 (1980), citing Richboro Community Mental Health Council, Inc., 242 NLRB 1267 (1979). The Board has also held that harsh criticism of an employer’s product or in- adequate and unsanitary conditions is protected under the Act, where the communication raises issues related to the employ- ees’ working conditions. Misericordia Hospital Medical Cen- ter v. NLRB, 623 F.2d 808, 812–813 (2d Cir. 1980). Thus, the threshold question is whether the communication constitutes concerted activity. Once a determination is made that the communication is protected, it is the employer’s burden to show the communication in question is malicious in nature. Springfield Library & Museum, 238 NLRB 1673 (1979). Generally, with respect to the element of malice, Respondent has the burden of establishing that “the words were published with the knowledge of their falsity or with a reckless disregard of whether they were true or false.” Diamond Walnut Growers, 316 NLRB 36, 47 (1995), enfd. in part and denied in part 113 F.3d 1259 (D.C. Cir. 1997), citing Springfield Library & Mu- seum, supra. However, “specificity and/or articulation are not the touchstone of union or protected activity.” Diamond Wal- nut Growers, 316 NLRB at 47, citing Springfield Library & Museum, supra. The Board has held that in the context of an emotional labor dispute, remarks that reflect bias or hyperbole will not be considered reckless or maliciously untrue as to lose the protection of the Act. Emarco, Inc., 284 NLRB 832 (1987). Furthermore, in Diamond Walnut, where employees urged the public to boycott the company, stating, in part, that scabs were packing “walnut with mold, dirt, oil, worms and debris,” the Board found that the communication was not maliciously false and that it was protected because it related to an ongoing labor dispute. Diamond Walnut Growers, 316 NLRB at 46. In the instant case, the language in the flyer distributed to the public on October 23 at the Smith Haven Malls shows that the remarks were related to the employees’ working conditions. The flyer, which states, in part, that, “Here’s what Control workers—the Cleaning Contractor at Smith Haven Mall—face when we take our lunch,” and that “Control workers do not want to lose their jobs because of consumer dissatisfaction.” Clearly relates to the employees’ concerns about their working conditions. It is undisputed that Control employees used the food court of the Mall to take their lunch or that the communi- cation related to their working conditions of Control employ- ees. In addition, the October 20 letter, which was hand deliv- ered to Manager Lundgren before distributing the flyer, shows that the employees were concerned that the sanitary conditions at the food court would lead to disciplinary action by Control against them for a situation, which according to the employees’, should be remedied by Control or Respondent. The remarks in the flyer as well as the October 20 letter are sufficient to show that the employees’ communication with the public on October 23 seeking its’ assistance, is protected under the Act. Respondent failed to submit any evidence to show that the statement concerning the presence of cockroaches in the food court was maliciously false or reckless. Similarly, Respondent failed to show that the conduct of employees during their dis- tribution of the leaflets was disruptive of their operations. The videotape in evidence shows that all of the individuals who were handbilling were doing so in a peaceful and civil manner. The testimony of Trombino, Respondent’s security director, asserting that one of the employees distributing flyers was emu- lating a cockroach, is not sufficient to deem the employees’ conduct unprotected. Further, Trombino’s testimony is not supported by the videotape in evidence. The videotape shows when Respondent’s security officers first approached the group of individuals’ handbilling and how the officers remained with SIMON DEBARTELO GROUP 287 the group until they left. The videotape does not show any individual on the grounds emulating a cockroach. Even, as- suming arguendo, that Trombino’s testimony is true, I would still conclude that under Board precedent, the conduct is still protected because such emotional display, hyperbole and ap- peal to the emotions are the type of conduct which is typical of organizing campaigns and protests relating to labor disputes. Diamond Walnut Growers, 316 NLRB at 47, citing Mitchell Manuals, 280 NLRB 230 (1986). CONCLUSIONS OF LAW 1. Simon DeBartelo Group a/w M. S. Management Associ- ates, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 32B-32J, Service Employees International Union, AFL–CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Respondent, as set forth above in the analysis section, and in the Order, below has committed various violations within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices offset commerce within the meaning of Section 2(6), (7), and (8) of the Act. THE REMEDY Having found Respondent has engaged in unfair labor prac- tices, I shall recommend it be ordered to cease and desist there- from and to take certain affirmative action to effectuate the policies of the Act. On the foregoing findings and conclusions and the entire re- cord, I issue the following recommended.1 ORDER The Respondent, Simon DeBartelo Group, a/w M. S. Man- agement Associates, Inc., Smith Haven Mall, Lake Grove, New York, New York, and Roosevelt Field Mall, Camden City, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Surveilling its employees activities on behalf of Local 32B-32J, Service Employees International Union, AFL–CIO. (b) Promulgating and enforcing a no solicitation provision which prohibits its employees from distributing union literature in nonworking areas of Respondents Roosevelt Field and Smith Haven Malls (the Malls), during nonworking time. (c) Informing and directing its employees that solicitation of union literature in nonworking areas of its Malls, during non- working time is not permitted. (d) Threatening to summon police in order to remove its employees from attempting to distribute union literature in nonworking on its Malls and during nonworking time. (e) Summoning police to remove its employees from dis- tributing union literature at its Malls in nonworking areas and during nonworking time. 1 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 objections to them shall be deemed waived for all pur- poses. (f) In any like or related matter interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following action necessary to effectuate the policies of the Act. (a) Rescind and annul the no-solicitation/no-distribution rule, described above, insofar as it forbids solicitation of union membership and distribution of materials protected b Section 7 of the Act, anywhere on its premises by its own employees or by employees otherwise employed to work on its premises during nonworktime. (b) Within 14 days after service by the Region, post at its mall facilities in Smith Haven and Roosevelt Field, New York, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Re- gion 7, after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployed by the Respondent at any time since December 21, 1999. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent had taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. WE WILL NOT surveil our employees activities on behalf of Local 32B-32J, Service Employees International Union, AFL– CIO. WE WILL NOT promulgate or enforce a no solicitation provi- sion which prohibits our employees from distributing union literature in nonworking areas of our Roosevelt Field and Smith Haven Malls (the Malls), during nonworking time. WE WILL NOT inform or direct our employees that solicitation of union literature in nonworking areas of our Malls, during nonworking time is not permitted. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288 WE WILL NOT threaten to summon police in order to remove our employees from attempting to distribute union literature in nonworking on our Malls and during nonworking time. WE WILL NOT summon police to remove our employees from distributing union literature at our Malls in nonworking areas and during nonworking time. WE WILL NOT in any like or related matter interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL rescind and annul the no-solicitation/no-distribution rule, described above, insofar as it forbids solicitation of union membership and distribution of materials protected by Section 7 of the Act, anywhere on our premises by our own employees or by employees otherwise employed to work on our premises during nonworktime. SIMON DEBARTELO GROUP A/W M.S. MANAGEMENT ASSOCIATES, INC.