Furr'S Cafeterias, Inc

FURR S CAFETERIAS 749 Furr's Cafeterias, Inc and Dallas and Fort Worth Building Construction Trades Council and Af- filiated Locals Case 16-CA-10519 January 31, 1989 DECISION AND ORDER By MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On February 4, 1983, Administrative Law Judge Richard A Scully issued the attached decision The Respondent filed exceptions and a supporting brief 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 brief and has decided to affirm the judge's rulings, findings, and conclusions, as modified, and to adopt the recom- mended Order, as modified The Respondent, which operates cafeterias, en gaged Palmer Enterprises, Inc to construct a new cafeteria in Irving, Texas The Union had a labor dispute with Palmer because the builder did not maintain area standard wages and working condi- tions at the construction site As a result, the Union sent two of its employees to the Respondent's Cen- tral Park Shopping Center cafeteria to handbill the Respondent's patrons The handbills requested pa trons not to eat in the Respondent's cafeterias while it utilized a construction contractor who did not maintain area standards After the union em- ployees peacefully distributed handbills on the side- walk in front of the cafeteria for 15 to 20 minutes, the cafeteria manager told them they were on pri vate property, which the judge found he indicated extended from the sidewalk through the parking lot to the street, and they must leave When the union employees asked whether they could put handbills on the cars in the parking lot, the manager replied that they needed permission of the shopping com plex manager to leave handbills on cars in the lot The union employees left the property after unsuc cessfully trying to ascertain from the shopping center management a location at which they could handbill The judge found that, based on the publicity proviso of Section 8(b)(4)(ii) of the Act, the hand billing is an affirmatively protected Section 7 right 1 In addressing whether the Respondent's pri- vate property rights must yield to the Section 7 right, the judge noted that the cafeteria is located in a shopping center open to the general public2 and the Union's intended audience is not identifia- ble until they approach the cafeteria entrance He concluded that there is no effective alternative means of reaching the audience other than hand- billing and therefore the Respondent's demand that the handbilling cease violated Section 8(a)(1) of the Act We agree with the judge's conclusion that the Respondent violated the Act for the reasons that follow The judge's decision issued before the Board de- cided Jean Country, 291 NLRB 11 (1988), which clarifies the framework to analyze when a union has a right under Section 7 to engage in handbill ing on private property In deciding whether a party's property right must yield to a union's Sec- tion 7 right, the Board will consider the relative strength of these rights and the impact of the avail- ability of reasonable alternative means of communi- cation on the parties' rights There is, however, an initial burden on the party claiming the property right to show that it has an in- terest in the property and what its interest is A party has no right to object on the basis of other persons' property interests, and an employer's mere objections to having union pickets outside its establishment does not in itself rise to the level of a property interest 3 The Respondent's only evidence of its property interest is the testimony of the store manager re garding the Respondent's leasehold interest in the store 4 The store manager's own testimony, how- ever, indicates that it was the shopping complex management that had the authority to permit hand- billing cars in the parking lot and to permit various charitable activities in the covered sidewalk area no more than 25 feet from the Respondent's store entrance Thus, the testimonial evidence is ambigu- ous as to the Respondent's property interest outside its storefront This evidence falls short of satisfying the "initial burden on the party claiming the prop- erty right" required by Jean Country Having failed to show that it has a property interest and what that interest is, the Respondent had no right to ex- clude the Union from engaging in protected activi ty in front of the store, and its actions in doing so violated Section 8(a)(1) of the Act 2 The cafeteria is one of several stores all of which front on a sidewalk running the length of the shopping center S Jean Country supra at fn 7 ' We agree with the judge that the Union s request for customers not 4 The store manager also testified that the Respondent picks up the to patronize Furr s is protected Sec 7 activity trash in the parking lot in front of its store 292 NLRB No 76 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Furr's Cafeterias, Inc., Irving, Texas, 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) Prohibiting the representatives of Dallas and Fort Worth Building and Construction Trades Council and Affiliated Locals from distributing handbills on property in front of its store, as long as the handbilling is conducted by a reasonable number of persons and does not unduly interfere with the normal use of the facility." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT prohibit representatives of Dallas and Fort Worth Building Construction Trades Council and Affiliated Locals from distributing handbills on property in front of our store, as long as the handbilling is conducted by a reasonable number of persons and does not unduly interfere with the normal use of the facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. FURR'S CAFETERIAS, INC. Ruth Small, Esq., for the General Counsel. Don C. Dennis, Esq., of Lubbock, Texas, for the Re- spondent. DECISION RICHARD A. SCULLY, Administrative Law Judge. On a charge filed by Dallas and Fort Worth Building Con- struction Trades Council and Affiliated Locals (the Union) on June 30, 1982, the Acting Regional Director for Region 16 of the National Labor Relations Board (the Board), issued a complaint on August 5, 1982, alleg- ing that Furr's Cafeterias, Inc. (the Respondent) had vio- lated Section 8(a)(1) of the National Labor Relations Act (the Act), by prohibiting. the Union from handbilling on the premises of a cafeteria operated by the Respondent. The Respondent filed a timely answer denying that it had committed any violation of the Act. A hearing was held in Fort Worth, Texas, on October 25, 1982, at which the parties were given a full opportu- nity to participate, to examine and cross-examine wit- nesses, and to present other evidence and argument. Briefs submitted by counsel for the parties have been given due consideration. On the entire record and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material, the Respondent was a Texas cor- poration engaged in the operation of cafeterias, including one located in the Central Park Shopping Center in Irving, Texas. In the 12-month period preceding the issu- ance of the complaint, the Respondent in the course and conduct of its business operations purchased goods valued in excess of $50,000 directly from points outside the State of Texas and during that period had sales valued in excess of $500,000. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that the Union was at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Respondent was building a new cafeteria in Irving, Texas, and had engaged Palmer Enterprises, Inc. (Palmer) to do the construction. At all times material, the Union was involved in a labor dispute with Palmer concerning wages and working conditions at the cafete- ria construction project. About 11:45 a.m. on June 17, 1982, Ray Hernandez and Stephen M. Ellis, who were employees of the Union, began distributing handbills on the sidewalk in front of the Respondent's cafeteria at the Central Park Shopping Center in Irving, Texas. The handbills read as follows: PLEASE DO NOT EAT AT FURR'S CAFETERIAS Furr's Cafeterias has established their disregard for the wages and working conditions that have been historically maintained by the Carpenters District Council of North Central Texas in this area. Furr's has given a general contract to an Out-of-State con- tractor, who does not maintain wages and working conditions as established by the Carpenters District Council of North Central Texas. Help us protect this under-cutting of wages and working conditions by refusing to eat at Furr's Cafeterias until they change their labor policies. THANK YOU FOR YOUR SUPPORT. CARPENTERS DISTRICT COUNCIL FURR S CAFETERIAS 751 OF NORTH CENTRAL TEXAS Please do not litter After they had been distributing the handbills for 15 to 20 minutes, Cafeteria Manager Ronnie Massey came out and told them that he had checked with his main office and that they could not handbill there He said that it was private property belonging to the Respondent and that they should do their handbilling at the construction site Hernandez testified that he asked Massey if he could tell him where the Respondents property line was and Massey said, No and told them to get off the Respond ent's property Massey s testimony was similar except that he said that he did not specifically order Hernandez and Ellis to leave However, it is clear that Massey con veyed the Respondent' s message that handbilling could not be done on its premises either on the sidewalk in front of the cafeteria or in the adjacent parking lot that extended to the street Hernandez and Ellis ceased hand billing when told to by Massey, and after unsuccessfully attempting to contact the shopping center manager to find out there was some place they could handbill, they left The handbilling was done in an orderly manner with out picketing It has been stipulated that there was no in terference with access to the cafeteria and that there was no attempt by the handbillers to encourage either em ployees or suppliers of the Respondent to engage in a work stoppage B Analysis and Conclusions The first issue to be resolved is whether the hand billers were engaged in activity protected by Section 7 of the Act The Respondent contends that they were not for several reasons It argues that the handbillers were not employees of either the Respondent or of Palmer with whom the Union was engaged in a pnmary dispute However, the Board has held that the term "employee is not limited to employees of a particular employer, but includes members of the working class generally i It has also held that an employer may violate Section 8(a) of the Act not only by actions affecting its own employees, but also by actions affecting employees who do not stand in such an immediate employer employee relation ship 2 The Respondent contends that not only was the activi ty involved here not within the protection of Section 8(a) but also it was in violation of Section 8(b)(4)(it) of the Act It argues that this handbilling did not come within the "publicity proviso to that sections because i Giant Food Markets 241 NLRB 727 (1979) Little Rock Crate Co 227 NLRB 1406 (1977) Oak Apparel 218 NLRB 701 (1975) 2 Lucky Stores 243 NLRB 642 643 (1979) A M Steigerwald Co 236 NLRB 1512 (1978) The publicity proviso to Sec 8(b)(4Xii) states Provided further That for the purposes of this paragraph (4) only nothing contained in such paragraph shall be construed to prohibit publicity other than picketing for the purpose of truthfully advising the public including consumers and members of a labor organiza tion that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distnbut ed by another employer as long as such publicity does not have an effect of inducing any individual employed by any person other than its purpose was to urge consumers to cease doing bust ness with a neutral employer that sells no product pro duced by Palmer and also because the handbill was un truthful It has long been recognized that the publicity proviso was intended to permit a consumer boycott of a second ary employer's entire business and not just a product boycott 4 Likewise, the Board has long held that the proviso is not limited to a situation where the primary employer literally produces a product that the second ary employer distributes, but applies equally where the secondary employer utilizes the services of the primary in its business5 and even though the handbilling is done at a facility of the secondary employer other than the one at which those services were utilized 6 There is also no merit in the Respondent's argument that the handbills involved were untruthful Taken alone, the sentence, Help us protect this under cutting of wages and working conditions by refusing to eat at Furr's Cafeterias until they change their labor policies, might lead a reader to believe that the dispute was with Furr's Cafeterias over its labor policies However a reading of the handbill as a whole makes it clear that the Union s primary dispute is with an Out of State con tractor' and that the secondary employers involvement arises from the fact that Furr's has given [it] a general contract " Further, the handbill identifies the nature of the primary dispute, "the under cutting of wages and working conditions, which the Union disputes, the under cutting of wages and working conditions which the Union is asking consumer help to protest, as having been done by 'an Out of State contractor, who does not maintain wages and working conditions as established by the Carpenters District Council of North Central Texas " It was not essential that the name of the primary employ er, Palmer, appear in the handbill 7 I find that it had not been established that the handbills substantially departed from the truth or that they were intended to deceive, therefore, distribution of the handbills was protected by the publicity proviso to Section 8(b)(4)(u) and did not violate the Act 8 Inasmuch as the Union s handbilling, urging a con sumer boycott of the Respondents business was lawful and properly conducted, it was affirmatively protected under Section 7 of the Act In determining whether the Respondent unlawfully interfered with the Union s Sec the primary employer in the course of his employment to refuse to pick up deliver or transport any goods or not to perform any serv ices at the establishment of the employer engaged in such distnbu lion * NLRB v Teamsters Local 760 377 U S 58 70 ( 1964) Operating Engi veers Local 139 (Oak Construction) 226 NLRB 759 760 (1976) Electrical Workers IBEW Local 622 (Middle South Broadcasting) 133 NLRB 1698 1705 (1961) 5 Central Indiana Building Trades Council (K Mart Corp) 257 NLRB 86 (1981) Florida Gulf Coast Building Trades Council (DeBartolo Corp) 252 NLRB 702 (1980) Plumbers Local 142 (Pggly Wiggly) 133 NLRB 307 (1961) Teamsters Local 537 (Lohman Sales) 132 NLRB 901 (1961) 6 Central Indiana Building Trades Council supra Sheet Metal Workers Local 54 (Sakowitz, Inc) 174 NLRB 362 (1969) 7 Florida Gulf Coast Building Trades Council supra at 704 fn 2 8 See Central Indiana Building Trades Council supra Florida Gulf Coast Building Trades Council supra 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion 7 rights, it is necessary to accommodate such rights with the Respondents private property rights with as little destruction of one as is consistent with the mainte nance of the other 9 In the present case the handbilling was done on the sidewalk in front of the Respondent s cafeteria in an orderly manner with no interference with customer ingress or egress The cafeteria was located in a shopping center that was open to the general public Charitable solicitations have been permitted to be con ducted within 20 to 25 feet of where the handbilling in volved here was done and on one occasion under the canopy in front of the cafeteria The shopping center is a strip type with all the stores in a row with their en trances off a sidewalk running the length of the center rather than off an enclosed mall The intended audience, potential cafeteria customers, was not specific and could not be readily contacted by means of communication other than direct entry onto the Respondents property because the customers did not become identifiable until they approached the entrance to the cafeteria In the ab sence of an effective alternative means of reaching the public, the Union had a protected Section 7 right to engage in handbilling on the Respondent's premises 10 By demanding that the Union's representatives cease handbilling in front of its cafeteria, the Respondent inter fered with the Union s protected right to do so in viola tion of Section 8(a)(1) i i CONCLUSIONS OF LAW 1 The Respondent Furr s Cafeterias, Inc is an em ployer engaged in commerce within the meaning of Sec tion 2(6) and (7) of the Act 2 The Union is 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 demanding that the Union cease handbilling on its premises that was protected activity under Section 7 of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 9 Hudgens v NLRB 424 US 507 522 (1976) NLRB v Babcock & Wilcox Co 351 U S 105 112 (1956) Giant Food Markets 241 NLRB 727 (1979) 10 Montgomery Ward & Co 265 NLRB 60 (1982) Seattle First National Bank 243 NLRB 898 (1979) "Montgomery Ward & Co supra Giant Food Markets supra Unlike the Respondent I find no basis for distinguishing the holdings in these cases from the present case because of the factual differences THE REMEDY Having found that the Respondent has engaged in unfair labor practices , I shall recommend that it be or dered to cease and desist therefrom and take certain of firmative action that will effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed12 ORDER The Respondent, Furr s Cafeterias, Inc Irving, Texas its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Prohibiting the representatives of Dallas and Fort Worth Building Construction Trades Council and Affili ated Locals from distributing handbills on its premises (b) In any like or related manner interfering with re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its cafeteria in the Central Park Shopping Center in Irving, Texas, copies of the attached notice marked Appendix 13 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representa tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced, or covered by any other maten al (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 12 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses ' a 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board