Skaggs Co., Inc.

360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Skaggs Companies, Inc. and Retail Clerks Union, Local 324, United Food and Commercial Work- ers International Union, AFL-CIO-CLC. Case 21-CA-18439 19 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 17, September 1981 Administrative Law Judge George Christensen issued the attached deci- sion. The General Counsel and the Charging Party filed exceptions and supporting briefs, the Re- spondent filed cross-exceptions and a supporting brief, and the Charging Party filed a brief opposing the Respondent's cross-exceptions. The National Labor Relations Board has delegat- ed 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 decided to affirm the judge's rulings, findings, and conclusions as clarified below and to adopt the rec- ommended Order. The judge found that the Re- spondent did not violate Section 8(a)(1) of the Act by threatening to arrest a nonemployee union agent for distributing area wage standards handbills on private property and by removing handbills that had been distributed. Subsequent to the judge's de- cision, the Board issued Fairmont Hotel, 282 NLRB 139 (1986), in which it reviewed the appropriate standard for balancing private property rights and Section 7 rights in cases where nonemployees seek access to an employer's property. We affirm the judge's decision pursuant to that standard and our analysis set forth below. According to the stipulated record, the Respond- ent operates a chain of retail drug stores, including one located in McComber Shopping Center (Center) in Buena Park, California. The Center faces Beach Boulevard and includes 20 retail facili- ties. Separating the Respondent's store and, the other facilities from Beach Boulevard is a large pri- vate parking lot utilized by customers of any of the Center's businesses. The distance from the front of the Respondent's store to the curb line on Beach Boulevard is ap- proximately 350 feet. Beach Boulevard, also desig- nated as California State Highway 39, consists of six traffic lanes with no curb parking and a speed limit of 35 miles per hour in front of the Center. At that point, Beach Boulevard is an area of high traf- fic congestion. A smaller road runs from Beach Boulevard along the side of the Center closest to the Respondent's store, and another road borders the rear of the Center. Public sidewalks separate all roadways from the Center and its parking lot. Driveways provide access and egress across the sidewalks at three points along Beach Boulevard and at two points alongs each of the secondary roads. On 17, 18, 21, and 24 November 1979 an agent of the Union who was not an employee of-the Re- spondent distributed handbills in the Center's park- ing lot in front of the Respondent's store. The union agent distributed the handbills by placing them under the windshield wipers of parked cars and by putting them inside parked cars where the windows were open. The leaflets were addressed to the Respondent's customers and alleged that the Respondent provided its employees with lower wages and benefits than those paid by the Re- spondent's competitors who had collective-bargain- ing agreements with the Union. The leaflets urged customers to shop with the competitors. On the first day the general manager of the Respondent's store threatened to have the agent arrested for tres- passing and had the handbills removed from the cars in the parking lots. On the subsequent days agents of the Respondent simply removed the handbills after they were distributed. At all perti- nent times the Union neither represented nor sought to represent any persons employed by the Respondent at its store in the Center. Based on the stipulated record, the judge found that the Union was engaged in area standards handbilling protected by Section 7 of the Act. After reviewing then current Board law and court precedent, he determined that the Respondent's property rights were not required to yield, on bal- ance, to the Union's Section 7 right. In this regard, the judge found that the General Counsel and the Union had failed to prove that handbilling and picketing on the public sidewalk at driveway points around the Center's perimeter were not reasonably alternative means of communicating the Union's message to its intended audience. In Fairmont, supra, the Board held that in cases involving conflicts between property rights and Section 7 rights, the Board's task is "first to weigh the relative strength of each party's claim." The Board stated: If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property claim is a tenuous one, and the Section 7 right is clearly more compel- ling, then the Section 7 right will prevail. Only in those cases where the respective claims are relatively equal in strength will effective alter- 285 NLRB No. 62 SKAGGS COS. 361 native means of communication become deter- minative. [Footnote omitted] Factors that may affect the relative strength or weakness of , an asserted property right include the following: the use to which the property in ques tion is put, any restrictions placed on public access to the property or to the facility located on the property, and the size and location of the private facility. By way of example, the Board noted that "a single store 'surrounded by its own parking lot provided exclusively for the convenience of cus- tomers will have a significantly more compelling property right claim" than "the owner of a large shopping mall who allows the general public to uti- lize his property wihout substantial limitation." Id. Concerning the Section 7 right, factors that may affect the relative strength or weakness of such a right include the following: the nature of the right asserted, the purpose for which it is being asserted, the employer that is the target of the activity, the situs of the activity, the relationship of the situs to the target, the intended audience of the activity, and, possibly, the manner in which the right is being asserted. Id. By way of example, the Board noted that "organizational rights and the right to engage in primary economic activity at the situs of a dispute may be viewed as more compelling than handbilling and other informational activity at loca- tions other than the primary situs." Id. Applying the Fairmont analysis to the facts of this case, the panel members disagree in their initial assessment of the relative, weight of the Employer and employee interests invollved.1 We agree, how- ever, that the Union's Section 7 claim is not clearly more compelling2 and that, assuming the relative equality of these interests, the General Counsel has failed to prove that the Union did not have reason- able alternative means to communicate its message to the public by picketing or handbilling on public sidewalks at the seven driveway entrances/exits to the Center's parking lot.3 Although Beach Boule- vard is a highly congested traffic area, there is no evidence that picketing or handbilling at the drive- ways connecting that street to the Center would create a safety hazard or exacerbate traffic conges- tion problems. In addition, there is no evidence with respect to traffic conditions on the two other roads servicing the Center. In sum, there is nothing in the record warranting a finding that the Union would not have a reasonable opportunity to appeal to all potential customers of the Respondent at driveway points on the public sidewalk along the perimeter of the Center and its private parking lot.4 Accordingly, we find that the Respondent's pri- vate property interests were not required to yield to the Union's Section 7 claim, and therefore the Respondent did not violate Section 8(a)(1) of the Act by threatening to arrest a nonemployee union agent from distributing area standards handbills in the Center's parking lot and by removing handbills which had been distributed. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I Chairman Dotson finds that the Respondent's property claim out- weighs the Union's Sec. 7 claim. The Respondent' s claim as I of 20 retail facilities sharing the Center's private parking lot is not as strong as that of a single store surrounded by its own parking lot provided exclusively for its own customers. There is, however, no evidence that public access to the parking lot is permitted for activities other than shopping in the Center's stores. On the other hand, the Union's area standards protest is directed to the public, has little relationship to the Respondent's employ- ees, and consequently is of limited significance as it is not at the "core of the purpose for which the NLRA was enacted." Sears Roebuck & Co. v San Diego County District Council of Carpenters, 436 U.S. 180, 206 fn 42 (1978). Chairman Dotson would therefore find that the Respondent's property rights should prevail under the Fairmont test without any con- sideration of whether the Union had reasonable alternative means of communication. Member Babson agrees with the Chairman that under Fairmont if the property claim asserted outweighs the Sec 7 claim, then it is not neces- sary to evaluate alternative means, and the Board should dismiss the com- plaint. Member Babson finds, however, that the competing claims of the Respondent and the Union here are relatively equal in strength. In his view, the Respondent's property claim is not a strong one The Respond- ent and 19 other retail facilities in the Center share the same parking lot for their customers There are seven entrances to the Center and its park- ing lot that provide ready access from a major thoroughfare and two other roads There is no evidence of any restriction of public traffic through any of these driveways. Thus, the Respondent can claim only a very limited property right to the parking lot. For the reasons stated by the Chairman, however, Member Babson agrees that the Union's Sec. 7 claim here is of more limited significance than other Sec 7 rights. See Sears, supra. Accordingly, Member Babson finds that the rights asserted MEMBER STEPHENS, concurring. The facts in this case warrant dismissal of the complaint under both the majority rationale in Fairmont Hotel' and my separate concurring opin- ion in that decision. In my view, the property right in this case is not as strong as the property right at issue in Fairmont, but considering all relevant fac- tors, including the relatively weak Section 7 right involved here, I find that the General Counsel failed to make a sufficient showing that reasonable by each party are relatively equal and that under Fairmont reasonable al- ternative means of communication must be considered in this case 3 In view of our disposition of this case, we find it unnecessary to con- sider whether inaccuracies in the Union's handbills had any significance with respect to the strength of its Sec. 7 claim 3 Chairman Dotson makes this finding concerning the availability of alternative means only because it is necessary to produce a majority opin- ion where he and Member Babson differ in their assessment of the evi- dence in the initial stage of the Fairmont test. 4 We note that, contrary to a suggestion in the judge's decision, the Union would not necessarily have to show that it attempted and failed to communicate its message from the public sidewalk in order to disprove the reasonableness of that alternative. i Fairmont Hotel, 282 NLRB 139 (1986). 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alternative means were not available for communi- cation of the Union's area standards message. Ac- cordingly, I join in adopting the judge's order of dismissal. William J. McCauley, Esq., for the General Counsel. Deborah M. Ehrhart, Esq. (Akin, Gump, Strauss, Hauner & Feld), of Washington, D.C., for the Respondent. Diane L. Kimberlin, Esq. (Gilbert, Cook & Sackman), of Beverly Hills, California, for the Union. DECISION GEORGE CHRISTENSEN, Administrative Law Judge. On March 5, 1981, I conducted a hearing at Los Ange- les, California, to try issues raised by a complaint issued on May 30, 1980, based on a charge filed by Retail Clerks Union Local 324, United Food & Commercial Workers International Union, AFL-CIO-CLC (Union or Local 324). The complaint alleges Skaggs Companies, Inc. (Skaggs), violated Section 8(a)(1) of the National Labor Relations Act by threatening to arrest an agent of the Union for distributing handbills in the parking lots out- side one of Skaggs' stores and by removing the handbills that agent distributed therein. Skaggs conceded its agents committed the acts just alleged, but denied that conduct was violative of the Act. The sole issue is whether the threat and removals con- stitute a violation of Section 8(a)(1) of the Act. The parties appeared at the hearing by counsel and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. They elected to stipulate certain facts, introduce docu- mentary evidence, and file briefs. Based on my review of the entire record, perusal of the pleadings, the stipulated facts, the exhibits, the briefs, and research, I enter the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and/or the parties stipulate, and I find, at times material, Skaggs op- erated drugstores in a number of States, including Cali- fornia, particularly one located at Buena Park, California; that in the normal course of its operations, Skaggs annu- ally derives gross revenues in excess of $500,000 and an- nually purchases and receives (at its Buena Park Store) goods and services from outside of California valued in excess of $50,000; and that Skaggs was an employer en- gaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of Section 2 of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts As noted above, the parties did not adduce any testi- mony at the hearing, electing to submit the case on the introduction of certain stipulated facts and exhibits. Based on those stipulated facts and documents, I find 1. At all pertinent times the Union neither represented nor sought to represent any persons employed by Skaggs at its Buena Park store. 2. In November 1979, Local 324 and a number of other local unions affiliated with United Food & Com- mercial Workers International Union, AFL-CIO-CLC (Locals 770, 905, 1167, 1222, 1428, and 1442) were par- ties to a standard agreement covering the rates of pay, wages, hours, and working conditions of employees at drugstores in southern California operated by chains other than Skaggs. 3. Under the terms of that agreement in November 1979 the minimum rate of pay for clerks within their first 173 hours of employment was $3.10 per hour; $3.20 for those within the next 627 hours; $3.61 for those within the next 700 hours; $4.12 for those within the next 700 hours; $4.63 for those within the next 700 hours; and $5.18 for those whose service exceeded 2900 hours. The agreement also provided covered employees with paid vacations up to 5 weeks per year after 20 years of serv- ice; premium pay for Sunday work and work outside of regular shift hours; 8 paid holidays and premium pay for holidays worked; paid sick leave; paid time off for death in family and jury duty; life insurance and hospital, medi- cal, dental, and eye care benefits; and a pension plan. 4. In November 1979, Skaggs provided its employees at the Buena Park store the following wages: $3.20 per hour for those within the first 800 hours of their employ- ment; $3.59 for those within the next 700 hours; $4.10 for those within the next 700 hours; $4.60 for those within the next 700 hours; $5.10 for those whose service exceed- ed 2900 hours; and for each 1040 hours of service over 2900 hours, $5.30, $5.50, $5.75, $6, $6.25, $6.50, to a top of $6.75. At that time Skaggs also provided those em- ployees paid vacations up to 4 weeks after 20 years of service; 6 paid national holidays, and applicable state holidays, with premium pay if worked; paid sick leave; time off for death in family with pay therefor charged against sick leave; paid time off for jury duty; life insur- ance and hospital, medical, and dental care benefits; and a pension plan. 5. The Buena Park store is located within the McComber Shopping Center (Center). The Center faces State Highway 39 (Beach Drive) and contains 20 retail outlets, including a large grocery supermarket (Ralph's), two restaurants (Denny's and Jack-In-The-Box), and a bank, with a sidewalk and several large parking lots sep- arated by dividers between the highway and the stores. There are seven driveways providing entry into the egress from the parking lots. There are six traffic lanes on Highway 39, with no curb parking and a speed limit of 35. A recent traffic volume survey (by the city's engi- neering department) established 25,000 vehicles per day pass the Center on Highway 39. It is approximately 350 feet from the curb line of Beach Drive to the from of the Buena Park store. 6. On November 17, 18, 21, and 24, Robert Caligiuri, an employee of Local 324,1 distributed handbills within I I find at all pertinent times Callglurt was an agent of the Union acting on its behalf within the meaning of Sec 2 of the Act. SKAGGS COS. 363 the parking lots extending from Beach Drive to the front of Skaggs' Buena Park store by placing handbills under the windshield wipers of autos parked therein or (when the windows were open) by placing handbills within the autos. 7. The handbills identified Local 324 as the distributor, were addressed to customers of Skaggs and, inter alia, stated: "The company pays low wages to most of its em- ployees and provides them with little or no benefits . . . . Before shopping with Skaggs again, ask yourself if you could provide for yourself and your family making minimum wage ($2.90 per hour) or just above, with no benefits . . . . Skaggs . . . pay most employees minimum wages ($2.90 per hour) and little or no benefits at all .... Skaggs . . . non-union employees get little or no insurance or other benefits . . . . Most southern Califor- nia drug stores provide their employees with'fair wages, health care, pensions and other benefits . . . . Shop with fair-minded Union drug stores in your community. They . .. pay their employees fair wages, provide them with health care benefits . .. For a list of fair minded Union drug stores, see reverse side of this letter . . .. 8. On November 17, Wes Poulson, general manager of the Buena Park store,2 approached Caligiuri as he was distributing the aforesaid handbills in the Center's park- ing lot fronting the Buena Park store, stated Caligiuri was not legally entitled to distribute his handbills within the parking lot because he was on private property, and told Caligiuri if he did not desist from further distribu- tions, Poulson would summon the police. 9. On the same date (November 17), Poulson and an- other employee of the Respondent acting under Poul- son's direction,3 collected handbills distributed by Cali- giuri, that date, by removing them from under the wind- shield wipers where they were placed and by reaching inside automobiles with opened windows and removing them. 10. On November 18, 21, and 24, R. Toldi, an assistant manager at the Buena Park store and other employees of the Respondent acting under Toldi's direction4 collected handbills distributed by Caligiuri on those dates in the same manner as Poulson and his assistant removed them on November 17. B. Contentions of the Parties 1. The General Counsel and the Union The General Counsel and the Union contend the Union's handbill distributions at the Center were equiva- lent to area standards picketing/handbilling and therefore concerted activity protected by Section 7 of the Act; argue the method of distribution (placing the handbills on and in autos, parked within the Center's parking lots 2 The parties stipulated and I find at times material Poulson was a su- pervisor and agent of the Respondent acting on its behalf within the meaning of Sec 2 of the Act s I find that employee was an agent of the Respondent acting on its behalf within the meaning of Sec 2 of the Act fl The parties stipulated at times material Toldi was a supervisor and agent of the Respondent acting on its behalf and I find at all material times Toldi and the employees acting under his direction were agents of the Respondent acting on its behalf within the meaning of Sec. 2 of the Act. in areas adjac' nt to the store) was a reasonable method for accomplishing the Union's objective (persuading shoppers to shift their patronage from Skaggs to stores whose employees 'received the rates of pay, wages, hours, and working conditions established by union con- tracts in the area), efficient, and least likely to disrupt the business of other retailers in the Center; and finally main- tain, in view of the foregoing, Skaggs violated Section 8(a)(1) of the Act by threatening the union distributor with arrest if he did not cease the distributions, by re- moving the handbills. 2. Skaggs Skaggs contends the distributions were not protected by Section 7 of the Act; and argue, assuming arguendo the distributions were activity protected by the Act, its attempts to prevent them on private property were not violative of the Act because: (a) it is obvious the Union made no attempt to determine the accuracy of its claim of substandard wages, etc., prior to the distributions, and its claims were inaccurate; (b) the Union made no effort to reach its alleged audience without trespass and failed to prove existing conditions prevented distribution by means other than trespass. C. Analysis and Conclusions 1. Is area standards picketing and handbilling protected by Section 7? Both the Board and the courts have uniformly held when a union carries signs and distributes handbills at or near the premises of an employer asserting the employees of that employer are receiving wages, rates of pay, hours, and working conditions that are lower than the wages, etc., of employees of other employers represented by that union and ask the potential or actual patrons of the picketed store to help the union-represented employ- ees preserve their higher wages, etc., by not patronizing the picketed and handbilled employer and by shifting their patronage to the employers of the union-represent- ed stores, such activity is concerted activity protected by Section 7 of the Act.5 As Skaggs asserts, in almost all the cases just cited the primary issue either was whether state attempts to regu- late picketing/handbilling should be prevented to ensure uniformity of regulation by Federal authority (preemp- tion) or whether picketing/handbilling activity, even though secondary, came within the ambit of the proviso to Section 8(b)(4) of the Act (excluding informational ac- tivity from the proscriptions of the section). It is never- theless clear the Board and the courts, in the course of deciding those questions, intrinsically determined picket- ing and handbilling for the bona fide purpose of preserv- 5 Sears Roebuck & Co. v. San Diego District Council of Carpenters, 436 U S. 180 (1978); Longshoremen v. Anadne Co., 390 U S 195 (1970); Steel- workers P. NLRB, 376 U S. 492 (1964), Garner v. Teamsters, 346 U S 485 (1953); Giant Food Markets v. NLRB, 633 F 2d 18 (6th Cir. 1980), affg. this principle but reversing on other grounds 241 NLRB 727 (1979); Houston Bldg. Trades Council (Claude Everett), 136 NLRB 321 (1962); Hod Carriers Local 41 (Calumet Contractors), 133 NLRB 512 (1961); etc 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing area standards was tantamount to concerted activity protected by Section 7. In this case the sole purpose of the Union's handbilling was to persuade the public to shift patronage from a non- union store, Skaggs,_ to stores of Skaggs' competitors who were parties to the Union's standard area contract. I find such handbilling activities concerted activities pro- tected by Section 7 of the Act. 2. Was the Union entitled to distribute on private property? The next question for determination-;, whether the Union was reasonably entitled to make its distributions on private property. In the Hudgens case,6 the Supreme Court held it was the duty of the Board to balance the right of an employer to control his private property against the right of the employees represented by the Union to publicize its dispute, seeking an accommodation between the two with as little destruction of the one as was consistent with the maintenance of the other; noting in the Sears case,7 the general rule is the employer may bar access to distributions on private property and a burden on the union to show there were no reasonable means other than trespass to such property for the union to distribute its message, that the balance is rarely in favor of trespass, and that it is doubtful area standards picketing/handbilling is entitled to the same degree of protection as picketing/handbilling by a union represent- ing employees of that employer engaged in an economic strike or picketing/handbilling by a union seeking to rep- resent employees of that employer. In this case there were public sidewalks over which the autos of all persons patronizing the center crossed, while entering and leaving the parking lots. Although parties stipulated the street from which such entry and exit,were made was heavily traveled, the General Coun- sel and the Union failed to produce any evidence the volume of traffic into and out of the Center's parking lots prevented distributions, nor that the Union made any attempt to distribute its leaflets to autos entering and leaving the center at those sidewalks and was unable to do so. It is also obvious the Union could have carried picket signs at those entries and exits containing its mes- sage to the Center's patrons, but did not. Although it has been held unnecessary for a union to demonstrate it could not have reached its intended audience through the media (newspaper, mail, radio, TV),8 I find by failing to show the Union attempted to transmit its message to its intended audience at the public entries and exits from the Center's parking lots, the General Counsel and the Union failed to meet their burden of proving no reasona- ble method other than existed for the Union to make its desired distribution. I therefore find and conclude Skaggs did not violate the Act by threatening Cahgiuri with arrest if he did not cease distributing leaflets within the Center's private property, i.e., its parking lots adjacent to the Skaggs store, and by removing the distributed leaflets. 3. Does the content of the Union's leaflets affect issuance of a remedial order? A comparison between the rates of pay and benefits set out in the Union's standard area contract and those received by Skaggs' employees clearly show the Union's handbills were inaccurate in portraying the difference be- tween them and lead me to find and conclude the Union failed to investigate and determine the actual differences therein or misrepresented them, in its leaflets. In view of the foregoing, even if I had not found the Union and the General Counsel failed to meet their burden of proving the Union could not have reached its intended audience without trespass, I would hesitate at issuing a remedial order.9 CONCLUSIONS OF LAW 1. At all pertinent times Skaggs was an employer en- gaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of the Act. 2. At all pertinent times Robert Caligiuri was an agent of the Union acting on its behalf within the meaning of the Act; Wes Poulson and R. Toldi were supervisors and agents of Skaggs acting on its behalf within the meaning of the Act; and the Skaggs' employees who assisted Poulson and Toldi in removing leaflets from autos in the Center's parking lots were agents of Skaggs within the meaning of the Act. 3. The General Counsel and the Union failed to prove the Union could not have distributed its leaflets asking the public not to patronize Skaggs by reasonable means other than trespass on the Center's private parking lots. 4. Skaggs did not violate Section 8(a)(1) of the Act by threatening Caligiuri with arrest if he did not cease dis- tributing leaflets within the parking lots at the, Center and by removing the leaflets distributed by Caligiuri within the Center. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edlo ORDER The complaint is dismissed in its entirety. 9 Cf. Alpha Beta Acme Markets, 205 NLRB 462 (1973). 10 If no exceptions are filed as provided by Sec 102 46 of the Board's B Hudgens P. NLRB, 424 U S 507 (1976). Rules and Regulations, the findings, conclusions, and recommended 7 Sears Roebuck & Co. v. San Diego County District Council of Carpen- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the ters, 436 U.S. 180 (1978). Board and all objections to them shall be deemed waived for all pur- 9 Giant Food Markets, supra poses