Salmon Run Shopping Center, LLC

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 31 658 Salmon Run Shopping Center, LLC and Empire State Regional Council of Carpenters, Local 747. Case 3–CA–24578 September 29, 2006 DECISION AND ORDER BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH On September 28, 2004, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Re- spondent filed exceptions and a brief in support of its exceptions. 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 brief and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified below and to adopt the judge’s recommended Order as modified. Like the judge, we find that the Respondent violated Section 8(a)(1) of the Act by denying the Union access to its mall for the purpose of distributing union literature. Our analysis, however, differs from that of the judge. The Supreme Court has established a general rule that an employer cannot be compelled to permit union agents to distribute literature on the employer’s property. Lechmere, Inc. v. NLRB, 502 U.S. 527, 533, 535, 537 (1992). The Court, however, has recognized two excep- tions to this general rule. The first exception, referred to as the “inaccessibility exception,” holds that an employer violates Section 8(a)(1) of the Act by denying a union access to its property where the union has no other rea- 1 In affirming the judge’s finding that the Respondent’s discrimina- tory exclusion of the Charging Party Union from its Watertown, New York mall violated Sec. 8(a)(1), we reject the Respondent’s arguments that the Act does not apply to the Respondent’s exclusion of the Union from its mall because (1) the Act confers no rights on nonemployees of a particular employer, and (2) the Union was seeking to communicate with mall customers rather than employees. As to the Respondent’s first argument, the Supreme Court has recognized that “employees” who may engage in concerted activities under Sec. 7 “‘include any employee, and shall not be limited to the employees of a particular employer.’” Eastex, Inc. v. NLRB, 437 U.S. 556, 564 (1978) (quoting Sec. 2(3) of the Act). Thus, because the union agents here were em- ployees under the Act, they had a protected Sec. 7 right to engage in concerted, protected activities, and the Respondent could not discrimi- nate against them without running afoul of Sec. 8(a)(1) of the Act. See O’Neil’s Markets v. Food Commercial Workers, 95 F.3d 733, 737 (8th Cir. 1996); accord: Glendale Associates, Ltd. v. NLRB, 347 F.3d 1145, 1153 (9th Cir. 2003); Tradesmen International v. NLRB, 275 F.3d 1137, 1142–1143 (D.C. Cir. 2002). As to its second argument, the Respondent made its decision to exclude the Union here without any knowledge of the Union’s intended audience. In any case, area stan- dards picketing and similar activity is protected under Sec. 7. See, e.g., Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180, 204–206 & fn. 42 (1978); Tradesmen Int’l, supra, 275 F.3d at 1142; O’Neil’s Markets, supra, 95 F.3d at 737. sonable means of communicating its organizational mes- sage. See Lechmere, supra at 533–535. The second ex- ception, referred to as the “discrimination exception,” holds that an employer violates Section 8(a)(1) of the Act by prohibiting nonemployee distribution of union litera- ture if its actions “discriminate against the union by al- lowing other distribution.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). The application of the “discrimination exception” is at issue in the present case. We find that, based on the record evidence, the Re- spondent excluded the Union from its property because the Union is a labor organization. We further find that this discriminatorily motivated exclusion violated Sec- tion 8(a)(1) under the “discrimination exception” as set forth in Babcock & Wilcox, supra. The relevant facts are as follows. On August 13, 2003,2 Union Official Ronald Timmerman met with the Respondent’s marketing director, Karla Woods, to re- quest permission for access to the mall to distribute un- ion literature. Timmerman did not say, and Woods did not ask, what message that literature would convey. Woods asked Timmerman to send her a letter requesting two access dates. Timmerman did so by letter dated Au- gust 22. On August 29, he called Woods and told her that he had yet to receive her response. Woods said she would get back to him the following week. Once again not hearing from Woods, Timmerman went to see her on September 19. During this visit, Woods ascribed her delay to not having received a request from a union be- fore. Woods said she would have to contact her corpo- rate office for advice, and again promised to contact Timmerman the following week. She did not do so. Timmerman then contacted Mary Dudo, the mall’s gen- eral manager. Dudo also promised to get back to Timmerman, but never did. Finally, on October 7, Woods called Timmerman. She repeated her prior statement that the mall had never before been asked for access by a union. Woods then stated that the mall be- lieved that the Union was a “profit organization,” and that the access request was denied. Timmerman tried again in April 2004. This time, Dudo rejected his request and cited the mall’s “community action program,” which states that the Respondent welcomes “civic, charitable, or other organizations to solicit in the common areas of the Mall when the solicitation will benefit both the or- ganization and our tenants.” Based on these facts, we are persuaded that the Re- spondent excluded the Charging Party from its mall be- cause it is a union seeking to engage in labor-related 2 All dates are 2003, unless otherwise indicated. SALMON RUN SHOPPING CENTER, LLC 659 speech.3 On each occasion that Timmerman contacted the Respondent to inquire as to the status of the Union’s application, the Respondent’s agents repeatedly assured him that they would “get back to” him about his request. The Respondent’s agents, however, consistently failed to do so, and Woods finally admitted that the cause of the Respondent’s delay was the Union’s status as a labor organization. When, on October 7, the Respondent ulti- mately informed the Union that its request was being denied, it proffered two rationales, both of which we find to be pretextual. First, the Respondent stated that it had not had any previous access requests from a union. The record establishes, however, that the Respondent had previously received, and approved, access requests from at least two other labor organizations.4 Second, the Re- spondent explained its denial of the Union’s applications on the ground that it believed the Union was a for-profit organization. The legitimacy of this explanation, how- ever, is undermined by the fact that the Respondent had previously granted access to other entities it not only believed, but knew to be, for-profit organizations, includ- ing a bank and an accounting firm. Several months later, the Respondent proffered a third justification for its deci- sion to deny access to the Union: the Respondent’s “community action program,” which states that the Re- spondent welcomes “civic, charitable, or other organiza- tions to solicit in the common areas of the Mall when the solicitation will benefit both the organization and our tenants.” Notably, however, the Respondent failed to mention its “community action program” on October 7, when it first denied the Union’s request and, further, failed to mention the program at all until approximately 8 months after the Union’s initial request for access. When a party “vacillates in offering a rational and consistent account of its actions, an inference may be drawn that the real reason for the conduct is not among those asserted.” Sound One Corp., 317 NLRB 854, 858 (1995) (quoting Aluminum Technical Extrusions, 274 NLRB 1414, 1418 (1985)). The Respondent asks us to modify our interpretation of the Babcock & Wilcox “discrimination exception” “to conform with that of the Courts of Appeals” (R.Br. at 16). The courts of appeals, however, do not share an identical understanding of that exception.5 One view is 3 We emphasize, however, that the Respondent never asked, and Timmerman never said, what the specific content of that speech would be. The record shows that the Respondent knew only that the Union sought access to distribute “union literature.” 4 Access was granted to the United Food and Commercial Workers (to participate in a health fair) and to a local firefighters union (for charitable solicitation purposes). 5 Compare Four B Corp. v. NLRB, 163 F.3d 1177, 1183 (10th Cir. 1998), with Lucille Salter Packard Children’s Hospital v. NLRB, 97 that discrimination means disparate treatment of would- be solicitors seeking to engage in relevantly similar con- duct.6 On this view, a mall owner could lawfully exclude a union solicitor seeking to convince mall patrons to boycott a tenant while admitting a nonunion solicitor whose activities would not impair its tenants’ business interests—Girl Scouts selling cookies, for example, as- suming no cookie-selling tenants. It could do so because the intended conduct of the union and nonunion solicitors is not relevantly similar: one would injure a tenant’s business interests, the other would not. But even under this view, urged by the Respondent, the violation in this case would still lie. When the Re- spondent denied the Union access in October 2003, it knew only that the Union wanted to distribute union lit- erature. It did not know what that literature would say. For all the Respondent knew, the literature might have sought merely to inform the public generally about the good things unions accomplish. By excluding the Union without knowing what its message would be, the Re- spondent confirmed what its agents’ statements and con- duct revealed: that the decision to exclude was based on the mere fact that the Union is a union seeking to engage in labor-related speech. In sum, the Respondent directly admitted that it de- layed acting on the access request because the Charging Party is a union, without knowing what message the Un- ion intended to convey, or to whom, through its distribu- tion of literature. The Respondent also offered shifting and pretextual reasons for denying the Union’s request. As a result, a compelling inference arises that the Re- spondent’s decision to deny the Union access to its prop- erty was based not on a determination that the Union’s intended activity would negatively affect the mall or its tenants, but solely on the Union’s status as a labor or- ganization and its desire to engage in labor-related speech. Such discriminatory exclusion is unlawful under the “discrimination exception” set forth in Babcock & Wilcox, supra.7 Accordingly, we find that the Respon- F.3d 583, 587–588 (D.C. Cir. 1996), and with Cleveland Real Estate Partners v. NLRB, 95 F.3d 457, 465 (6th Cir. 1996). 6 See Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319 (7th Cir. 1995) (“A person making a claim of discrimination must identify an- other case that has been treated differently and explain why that case is ‘the same’ in the respects the law deems relevant or permissible as grounds of action.”); see also Four B Corp., supra at 1183–1184, but also at 1185 (Murphy, J., concurring) (rejecting majority’s discussion of discrimination “hypothetical”). 7 Having found the Respondent’s conduct unlawful based on the analysis set forth above, we find it unnecessary to rely on the judge’s application of Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied 242 F.3d 682 (6th Cir. 2001), although Members Liebman and Walsh believe that case to have been correctly decided. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660 dent violated Section 8(a)(1) of the Act in discriminato- rily denying access to the Union. ORDER The National Labor Relations Board adopts the rec- ommended order of the administrative law judge as modified below, and orders that the Respondent, Salmon Run Shopping Center, LLC, Watertown, New York, its 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) Discriminatorily denying access to the Union to distribute literature at the Salmon Run Mall.” 2. Substitute the attached notice for that of the admin- istrative 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discriminatorily deny access to the rep- resentatives of Empire State Regional Council of Car- penters, Local 747, or any other labor organization, to distribute literature at the Salmon Run Mall. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National La- bor Relations Act. SALMON RUN SHOPPING CENTER, LLC Alfred Norek, Esq., for the General Counsel. Peter Carmen, Esq. (MacKenzie, Hughes, LLP), for the Re- spondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on July 28, 2004 in Syracuse, New York. The Complaint, which issued on January 28, 2004 and was based upon an unfair labor practice charge and an amended charge that were filed on November 26, 20031 and January 8, 2004 by Empire State Regional Council of Carpenters, Local 747, (the Union) alleges that since on about August 13, Salmon Run Shopping Center, LLC, (the Respondent) has refused to permit the Union to distribute literature within its facility, while per- mitting other organizations to do so, in violation of Section 8(a)(1) of the Act. FINDINGS OF FACT I. JURISDICTION The Respondent admits, and I find, that it has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS The Respondent admits, and I find, that the Union has been a labor organization within the meaning of Section 2(5) of the Act. III. THE FACTS The Respondent operates an enclosed retail shopping mall, the largest in the area, with 95 retail tenants and approximately 3,500 outdoor parking spaces, in Watertown, New York. His- torically, the Respondent has allowed local organizations to set up displays at the mall if one or two requirements are satisfied: if the solicitation increases customer traffic at the mall or it enhances the mall’s reputation and public image. The instant matter arose because the Respondent refused to allow the Un- ion to set up a table and hand out union literature at the mall. The two witnesses were Ronald Timmerman, council represen- tative for the Union, and Mary Dudo, the general manager of the mall. Timmerman testified about the Union’s interest in soliciting at the mall and the Respondent’s denial of his request, and Dudo testified about the criteria that the Respondent uses in determining who should, and who should not, be permitted to solicit at the mall, as well as different organizations that the Respondent has allowed to solicit, and those it has not allowed to solicit. There is no dispute about the facts. On August 13, Timmerman went to the mall and met with the mall’s Marketing Director, Karla Woods and told her that the Union would like to set up a table at the mall to hand out union literature. She gave him a certificate of insurance to com- plete and told him to submit a letter giving two dates that they would like to have. On August 22, Timmerman submitted a letter to Woods requesting September 13 or September 27, and attached a certificate of liability insurance. On August 29, he called Woods and said that he had not yet received a response to his request, and she said that she had been on vacation and would get back to him the following week. Not having heard from Woods, he went to see her on September 19 and told her that he was still waiting for a response to his request. Woods told him that she had never previously received a request from a union, and would have to contact her corporate office for advice, and would get back to him the following week, but she failed to do so. Timmerman went to the mall on September 29 1 Unless indicated otherwise, all dates referred to relate to the year 2003. SALMON RUN SHOPPING CENTER, LLC 661 and saw several tables set up with displays of Syracuse Univer- sity and other universities, as well as a bank and an accounting firm. He then went to see Dudo and asked why he had not re- ceived a response to his request while these other organizations had displays at the mall. She told him that it was for their higher education night, and he told her that the Union had an apprenticeship program which they consider education for young people to learn about the trade and employment benefits. When Dudo did not respond, he asked her if his request wasn’t approved because it was a union request, and she told him that she would look at the request, and get back to him, but she never did. On October 7, Woods called him and told him that they had not had any previous requests for access from a union, and that they believed that the Union was a profit organization and that his request was being denied. On April 7, 2004 Timmerman mailed a completed community access form to Dudo with an accompanying letter notifying her that the Union had not previously been aware that the form was required. By letter dated April 14, 2004, Dudo notified Timmerman that his application was not approved: Our community action program, since its inception, remains a partnership program that serves to benefit both the members of our local community and the Salmon Run Mall’s tenants. We welcome civic, charitable, or other organizations to solicit in the common areas of the Mall when the solicitation will benefit both the organization and our tenants. Timmerman testified that his request to set up a display at the mall was generated by his learning that Dick’s Sporting Goods, which was becoming a tenant at the mall, and had hired a contractor who was nonunion and, allegedly, did not pay area standard wages. This contractor was being employed by Dick’s to remodel its new facility at the mall and Timmerman wanted to distribute literature to notify the public about the contractor that Dick’s was employing and the fact that it was not paying area standards wages. However, in denying the Union’s request for a display at the mall, the Respondent never inquired as to what it intended to distribute. In addition, if the Union had been granted permission to set up a display at the mall, they would have distributed information regarding their apprenticeship program, as well as union literature regarding the advantages of employing union contractors. The mall does not employ any carpenters and the Union’s intended audience for its distribu- tion was the general public, not the employees of the mall or its tenants. There is no allegation, or proof that the Union did not have other available means of getting its message to the public. Timmerman, who lives about 30 miles from the mall, visits the mall about twice a month for shopping or work related trips, although the Union does not represent any of the employees employed at the mall. On these visits he has observed displays for the Little League, Boy Scouts, hospices, the Childrens’ Miracle Network, the American Cancer Society and the Salva- tion Army at Christmas time, as well as others that he could not recollect. Dudo testified that she determines whether community or- ganizations will be allowed to set up a table at the mall to dis- tribute literature. The two primary factors in determining whether solicitation requests are approved are whether it in- creases the foot traffic into the mall or enhances its public im- age in support of the community. Examples of displays are the Childrens’ Miracle Network, the Salvation Army, and the American Cancer Society, which enhance the mall’s public image. In addition, the mall has a higher education night, spon- sored by the local Board of Education, which benefits the mall by increasing the foot traffic into the mall. The mall has re- jected applicants other than the Charging Party. It rejected a request by a Howard Dean campaign group to hold a forum at the mall and rejected an application from a church group wish- ing to publicize the movie “The Passion of Christ.” It was de- termined that these applications be rejected because they would not benefit the mall. The mall also rejected an application for the Miss New York State Pageant that wanted to have a bake sale because it would compete with the products of mall ten- ants, and likewise rejected a request from Sam’s Club to set up a table to recruit new applicants, because they are a competitor of mall tenants. Dudo testified that the mall does not have a policy of reject- ing all solicitation requests from unions. They would grant a union’s request to set up a table if it was a fundraiser in support of a charity or an educational program. For example, in May 2002, the Food Workers’ Union, which represents workers at a local hospital, participated in a health fair event with their own table at the mall. Their display notified the public of the good food served at the hospital as well as employment opportunities at the hospital. The request of the Union stated that they wanted to distribute union literature, and the request was denied be- cause their requested display did not provide any benefit to the mall. Three roads, town and state, lead into the mall. In addition, Watertown, New York has its own radio stations as well as a newspaper. IV. ANALYSIS Counsel for the General Counsel and counsel for the Re- spondent both cite Sandusky Mall Co., 329 NLRB 618 (1999) in their briefs, although counsel for the Respondent’s cite is to the Court case, Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir. 2001) which disagreed with the Board’s reasoning and refused to enforce its decision. Sandusky is an appropriate case to cite because it is almost a mirror image of the instant matter. In Sandusky, a mall with approximately 96 stores, the union learned that a tenant remodeling its store was employing a non- union contractor that did not pay the prevailing area union wage rate and benefits. As a result, the union handbilled at the entrance to that store asking the general public not to patronize the store because, by employing that contractor, “they are un- dermining construction wage and benefit standards in this area.” The handbilling was peaceful and did not block ingress or egress from the store. The handbillers left after being asked to do so by a mall security guard, but returned the next day, when they were given a letter saying that they would not be permitted to handbill on private property and, if they did so, it would be considered trespassing and would be dealt with ac- cordingly. Two weeks later, when they returned, they were arrested and charged with trespassing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662 The only difference between the instant matter and Sandusky is that in the instant matter, rather than actually handbilling, the union requested permission to set up a table at the mall, which request was denied. Other than that, the facts are, virtually, identical. Like the Respondent, Sandusky permitted charitable, civic and other organizations to solicit on its premises, permit- ting, inter alia, United Way, Easter Seals, The American Lung Association, the Salvation Army and the Red Cross, and re- quired these organizations to apply in order to solicit and, if permission were granted, the applicant had to sign a temporary display agreement. Among the factors considered by Sandusky was whether the mall would receive an economic benefit, such as rent, good will or increased customer traffic, whether the display was consistent with, or conflicted with, the business of the mall and its tenants, and whether it would be controversial or divisive. Sandusky refused numerous requests to solicit, including removing political campaign stickers and pins, and prohibited the distribution of flyers for commercial interests, in competition with its tenants, as well as flyers which it deemed to be sensitive material. The majority of the Board, in finding that Sandusky violated the Act, discussed NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956), and Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), stating: Relying on Lechmere, however, the Respondent contends that the nonemployee union handbillers had no protected right of access to the Respondent’s private property. We disagree. Al- though the Supreme Court in Lechmere held as a general rule that an employer cannot be compelled to allow the distribu- tion of union literature by nonemployee organizers on its property, it did not disturb the discrimination exception articu- lated in Babcock & Wilcox. As correctly stated by the General Counsel in this case, the Board has frequently relied on that exception, in cases decided after Lechmere, in holding that an employer violated Section 8(a)(1) of the Act by denying un- ion access to its property while permitting other individuals, groups and organizations to use its premises for various ac- tivities. The Board noted that the United States Court of Appeals for the Sixth Circuit, which subsequently refused to enforce its deci- sion, disagreed with the Board’s interpretation of “discrimina- tion” as used in Babcock & Wilcox in Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir. 1996) : The Sixth Circuit denied enforcement of the Board’s order, holding that, post- Lechmere “discrimination” as used in Bab- cock & Wilcox “means favoring one union over another, or al- lowing employer-related information while barring similar union-related information.” We respectfully disagree with the Sixth Circuit’s conclusion and adhere to our view that an em- ployer that denies a union access while regularly allowing nonunion organizations to solicit and distribute on its property unlawfully discriminates against union solicitation. In response to Sandusky’s defense that it did not discriminate against the union, per se, but that it denied it access pursuant to its consistent discretionary policy of limiting access to those groups that would benefit the mall, as the Respondent did herein, the Board stated: [W]e find the Respondent’s policy of permitting access based on its discretion and business judgment is unlawfully dis- criminatory vis-à-vis union solicitation of customers. The Re- spondent prohibited the dissemination of a message protected by the Act while at the same time permitting the dissemina- tion of a wide range of other messages. In prohibiting the un- ion’s protected area standards handbilling, the Respondent is distinguishing among solicitation based on its own assessment of the message to be conveyed according to its purely subjec- tive standard. This practice “amounts to little more than an employer permitting on its property solicitation that it likes and forbidding solicitation that it dislikes.” [citing Riesbeck Food Markets, 315 NLRB 940, 942 (1994), enf. denied 91 F.3d 132 (4th Cir. 1996).] In answer to Sandusky’s defense that it had also denied access to other nonunion individuals and groups, as the Respondent defends herein, The Board stated: The Act does not protect those nonunion activities, so the Re- spondent may ban any or all of them. What the Respondent cannot do, however, is prohibit the dissemination of messages protected by the Act on its private property while at the same time allowing substantial civic, charitable and promotional ac- tivities. That is exactly what the Respondent did. As stated above, the Court refused to enforce the Board’s Order in Sandusky. The principal disagreement between the Board and the Sixth Circuit involves the interpretation of the following language from Babcock & Wilcox, at 112: [A]n employer may validly post his property against nonem- ployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message, and if the employer’s notice or order does not discriminate against the union by allowing other distribution. In Cleveland, at 464–465, the Sixth Circuit explained its differ- ence with the Board about the meaning of this language: To discriminate in the enforcement of a no-solicitation policy cannot mean that an employer commits an unfair labor prac- tice if it allows the Girl Scouts to sell cookies, but is shielded from the effect of the Act if it prohibits them from doing so. Although the Court has never clarified the meaning of the term, and we have found no published court of appeals cases addressing the significance of “discrimination” in this context, we hold that the term “discrimination” as used in Babcock means favoring one union over another, or allowing em- ployer-related information while barring similar union-related information. While recognizing that the Court of Appeals for the Sixth Circuit disagrees with the Board’s interpretation of post- Lechmere “discrimination” and refused to enforce Sandusky and Cleveland for that reason, I am bound by the most recent Board decision which the Supreme Court has not reversed. Iowa Beef Packers, 144 NLRB 615, 616 (1963); Waco, Inc., 273 NLRB 746 fn. 14 (1984). I therefore find that by refusing to permit the Union to solicit on its premises, while allowing SALMON RUN SHOPPING CENTER, LLC 663 other organizations, including a union, to do so, the Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union has been a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by re- fusing to grant the Union permission to solicit at the Salmon Run Shopping Center while allowing other organizations to do so. THE REMEDY Having found that the Respondent violated Section 8(a)(1) of the Act by refusing to allow the Union to set up a table and solicit at its mall in Watertown, New York, I shall recommend that it cease and desist from doing so, and to post a notice stat- ing that it will grant access to the Union in the same manner as it grants access to any other organization or group. Upon these findings of fact and conclusions of law, and based on the entire record, I issue the following recommended2 ORDER The Respondent, Salmon Run Shopping Center, LLC, Wa- tertown, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from 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 objections to them shall be deemed waived for all pur- poses. (a) Denying access to the Union to distribute literature at the Salmon Run Mall, while permitting other organizations to do so. (b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Within 14 days after service by the Region, post at its fa- cility in Watertown, New York copies of the attached Notice marked “Appendix.”3 Copies of the Notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where Notices to employ- ees and tenants 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 the Union and all current employees and former employees employed at the mall at any time since August 13, 2003. (b) 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 has taken to comply. 3 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.”