Galleria Joint Venture, 1147 (1995)

Galleria Joint Venture and International Ladies'

Garment Workers' Union Ohio District Council a/w International Ladies' Garment Workers' Union, AFL-CIO

St. Clair Management Co. and International Ladies' Garment Workers' Union Ohio District Council a/w International Ladies' Garment Workers' Union, AFL-CIO. Cases 8-CA-22469 and 8-CA-22571

July 17, 1995

SUPPLEMENTAL DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND COHEN

In this proceeding we consider the impact of the Supreme Court's opinion in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), on a shopping center owner's right to exclude from its private property nonemployee union representatives distributing handbills informing the consuming public of a strike because of alleged unfair labor practices committed by a tenant of the shopping center. The specific issue before us is whether Respondent Galleria Joint Venture-the shopping center owner-and Respondent St. Clair Management Co.-the shopping center operator-violated Section 8(a)(1) by prohibiting the conduct of this handbilling in front of the Laurel store, which is one of the retail stores in the Galleria, an enclosed shopping mall in downtown Cleveland. Pursuant to our analysis below, we conclude that the Respondents did not violate the Act as alleged.

A. Procedural Background

On December 6, 1990, Administrative Law Judge Bernard Ries issued the attached decision in this case, in which he applied the framework for analysis set forth in Jean Country, 291 NLRB 11 (1988), for issues involving denial of nonemployee access to private property, and found that the Respondents had violated the Act. The Respondents filed exceptions to the judge's finding of a violation.

On July 22, 1991, the Board issued a Decision and Order in this case, Galleria I, 303 NLRB 815, affirming the judge's findings and conclusions.1 Thereafter, the Respondents filed a petition for review of the Board's Decision and Order in the United States Court of Appeals for the Sixth Circuit, and the Board filed a cross-application for enforcement of its Order.

On January 27, 1992, the Supreme Court issued its opinion in Lechmere, holding that the Board's balancing test in Jean Country, as applied to the non-employee union organizers in that case, was inconsistent with controlling Supreme Court precedent. Thereafter, the Board and the Respondents filed a joint motion with the court of appeals to withdraw without prejudice the Respondents' petition for review and the Board's cross-application for enforcement, and to remand the case to the Board for further consideration in light of Lechmere. The joint motion was granted, and the Board notified the parties that they could submit statements of position to the Board on the issues raised by the Board's reconsideration of the case. Subsequently, statements of position were filed by the General Counsel, the Respondents, and the Union.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Upon reconsideration of Galleria I in light of Lechmere, the statements of position of the parties, and our recent decision in Leslie Homes, Inc., 316 NLRB 123 (1995), we have decided to vacate the Decision and Order at 303 NLRB 815 and to dismiss the complaint in its entirety.

B. Facts

The facts, fully set forth in the attached judge's decision, are essentially as follows. The Galleria in downtown Cleveland has approximately 50 retail stores set on two levels; there is also a ''food court'' providing several places to obtain refreshments. All four sides of the mall are bordered by a red-brick sidewalk. This sidewalk covers both the perimeter of Respondent Galleria's private property and part of the public property adjoining the mall. There are five means of entry to the mall from public property: The East 9th Street door, considered the formal mall entrance; the St. Clair Avenue entrance; the food court entrance; the entrance to a parking lot located underneath the mall, which entrance appears to be a city block away from the mall; and the entrance to a 40-story office building adjoining the mall, through whose ground-floor foyer one may enter the mall itself. From the underground parking lot, one ascends to the two-level shopping area by means of an escalator in the center of the mall. Those who work or otherwise have business in the adjoining office building may enter the mall from the building without first stepping onto public property.

The Laurel store is on the Galleria's ground level. The record establishes that it is about 80 feet from the East 9th Street entrance. Escada U.S.A., Inc. owns the Laurel store and leases the space it occupies in the mall. The store sells only those clothes imported by Escada.

1 Additionally, the Board adopted, in the absence of exceptions, the judge's dismissal of allegations concerning the Respondent's interference with the handbilling on public property outside the Galleria. Also, the Board modified the judge's Order with regard to the location of the handbilling permissible within the mall, pursuant to an exception filed by the Union.

Escada has a warehouse distribution center in New Jersey where, in November 1989, employees engaged in a strike after unfair labor practices were assertedly committed in reaction to an organizing drive by the Union at that location. At about the time the strike began, the Union attempted to handbill potential customers of the Laurel store in the Galleria. The hand-bills informed readers about the strike in the New Jersey distribution center and of Escada's alleged unlawful conduct, and asked that they not purchase Escada merchandise. The two handbillers-who were not employees of either of the Respondents or of Escada- stood in front of the store, on private property inside the mall. They were immediately ejected by the Respondents' security employees. When the two subsequently attempted to distribute the handbills outside the mall, the Respondents had them removed entirely from the red-brick sidewalk, a portion of which constituted public, rather than private, property.2

In early January 1990, the Union again tried to distribute its handbills in front of the Laurel store within the mall, and again the two handbillers were ejected. Subsequently, the Union and Respondent St. Clair reached an informal accommodation, and the handbilling, which was at all times peaceful and non-disruptive, was permitted in front of the store from about mid-January until mid-February. At that time the Respondents' permission was withdrawn. The Union then handbilled at public-property locations near three of the entrances to the mall, including the East 9th Street entrance, until mid-March, when it decided to terminate the activity.

C. The Supreme Court's Opinion in Lechmere

In Lechmere, Inc. v. NLRB, supra, the Supreme Court held that Jean Country impermissibly recast as a ''multi-factor balancing test'' the general rule of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), permitting an employer to prohibit nonemployee distribution of union organizational literature on its property. 502 U.S. at 538. Babcock's holding, as affirmed in Lechmere, is that Section 7 does not allow non-employee union organizers to come onto private property except in the rare case where ''the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.'' Id. at 537. Thus, ''[i]t is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' rights.'' Id. at 538 (emphasis in original).

D. The Parties' Contentions

The General Counsel concedes that the Supreme Court's standard in Lechmere, which was applied to nonemployee union organizers attempting to communicate with employees on private property, is applicable in the instant case, in which nonemployee union representatives sought to distribute handbills to consumers informing them of the strike and Escada's alleged unfair labor practices. The General Counsel further concedes that under the Lechmere standard the complaint must be dismissed because the heavy burden to demonstrate the absence of feasible alternatives to trespass has not been satisfied here. Thus, the General Counsel observes that picketing on public property was available for the Union to communicate its message, and there is no showing that it was not feasible. In addition, he notes that the handbilling in which the Union engaged on the public property at the perimeter of the Galleria was not shown to be either unsafe or an unreasonable alternative under Lechmere. With regard to the potential enmeshing of neutrals, a factor relied on in granting access in Galleria I, the General Counsel points out that the handbills used in this case clearly identified the Laurel store as the focus of the Union's boycott, making it unlikely that the public would perceive that other stores were involved in the dispute. He also suggests that, in any event, it is more appropriate for the neutrals to raise this issue with the property owner than for a union to take it into consideration in assessing the feasibility of alternatives to trespass.

The Respondents argue that the exceptional situation permitting access, as set forth in Lechmere, may come about only where nonemployee union representatives are attempting to communicate with employees on private property, and not customers, citing the 9th Circuit's post-Lechmere view in John Ascuaga's Nugget, Inc. v. NLRB, 968 F.2d 991 (9th Cir. 1992). Accordingly, the Respondents urge that the Board dismiss the complaint given the identity of the Union's intended audience here. Alternatively, they contend that even if the Lechmere exception were available to the Union on a proper showing of absence of alternative means of communication, this burden has not been met. Thus, the Respondents argue...