NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,533, RIESBECK FOOD MARKETS, INC. and UNITED FOOD AND COMMERICAL WORKERS INTERNATIONAL UNION, LOCAL UNION 23, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

RIESBECK FOOD MARKETS, INC. and UNITED FOOD AND COMMERICAL WORKERS INTERNATIONAL UNION, LOCAL UNION 23, AFL-CIO, CLC.

315 NLRB No. 134.Case Nos. 8-CA-21274 and -22332. December 16, 1994 Robert A. Giannasi, Administrative Law Judge..

Before Gould, Stephens, Devanet, Browning and Cohen.

Allen Binstock, for General Counsel. J. Michael Kota and Julie Ashworth Glover, Columbus, Ohio, for Respondent. James R. Reehl and Daniel W. Dickinson Jr., for Charging Party.

No-Solicitation and No-Distribution--Scope of Rules--Customer Solicitation Policy.--An employer’s denial of access to a union to picket and handbill near the customer entrances to two of its stores constituted unlawful disparate treatment of union activities. Under the employer’s customer solicitation policy, it permitted numerous organizations to solicit customers on its property. Rejected was the employer’s contention that its permission of solicitation by charitable and civic organizations constituted a “limited” exception to its general prohibition against customer solicitation. Rather, the employer’s refusal to permit union solicitation was discriminatory. Rejected also was the employer’s contention that the actual practice under its customer solicitation policy was nondiscriminatory. The employer’s practice of evaluating each message and granting access only if in its judgment the solicitation did not adversely affect its business as unlawfully discriminatory with respect to union solicitation of customers. Section 8(a)(1).

Back reference: ¶3825.491.

Interference--NLRB Investigation--State Court Action.--An employer violated the NLRA by continuing to maintain state court actions against a union after the NLRB’s General Counsel issued a complaint alleging that the employer had unlawfully denied the union access to two of its stores. Several months after the employer filed its state court complaints, the General Counsel issued a complaint. Board precedence imposed an affirmative duty on the employer to take action to stay the state court proceedings following issuance of the Board complaint. In this instance, however, there was no evidence that the employer took any action to stay the state court proceedings. Section 8(a)(1).

Back reference: ¶3830.

From Text of Board’s Decision

On January 28, 1991, Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs. The Respondent and the General Counsel filed answering briefs. [1]

The National Labor Relations Board has considered the decision and the record in light of the exceptions, briefs, and supplemental briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent herewith and to adopt the recommended Order as modified. [2]

The facts, fully set forth in the judge’s decision, may be summarized as follows. On September 7, 1988, the United Food and Commercial Workers International Union, Local Union 23, AFL-CIO, CLC (the Union) commenced informational picketing and handbilling near the customer entrances of the Respondent’s St. Clairsville, Ohio and Wheeling, West Virginia stores. The Union’s picket signs and handbills stated that the Respondent did not employ union members or have a contract with the Union, and they asked customers not to patronize the Respondent. The Respondent’s managers asked the pickets and handbillers to leave the premises. They refused. The Respondent thereafter obtained state court injunctions limiting the Union’s activity to public property away from the Respondent’s stores.

The judge found that the Respondent violated Section 8(a)(1) of the Act by discriminatorily prohibiting the union representatives from engaging in informational picketing and handbilling near the customer entrances to the two stores. For the reasons set forth below, we agree with the judge. The judge further found that the Respondent did not violate the Act by filing and pursuing the state court civil actions seeking expulsion of the union pickets and handbillers from the Respondent’s premises. For the reasons set forth below, we disagree with the judge and find that the Respondent did so violate the Act.

A. The Respondent’s Prohibition of Union Informational Picketing and Handbilling

The Respondent maintains a lengthy written policy concerning the solicitation of its customers. It provides at the outset that the Respondent

follows a general policy of prohibiting any solicitation of or distribution of materials to Riesbeck’s customers by outside groups and individuals on Riesbeck’s premises. The basis of this policy is that Riesbeck’s will allow no solicitation or distribution activity on its premises that holds any significant potential of harming Riesbeck’s business.

The policy specifically prohibits any solicitation involving a do-not-patronize message, political campaign, or any controversial issue. The policy further provides, however, that “[l]imited access ... to customers by charitable organizations under controlled conditions enhances Riesbeck’s business goodwill in the communities it serves.” The policy accordingly states that solicitation of and distribution to customers may be permitted by organizations that “must be charitable in nature.” The policy concludes by stating “[n]otwithstanding the foregoing, Riesbeck’s retains discretion to deny access to its premises to any individual or group whose activity does not, in Riesbeck’s judgment, promote Riesbeck’s business.” [3]

The Respondent does not dispute that it prohibited the Union’s informational picketing and handbilling on its premises pursuant to its policy concerning the solicitation of customers. That policy explicitly limits the solicitation of customers only to that undertaken by charitable organizations. [4] It accordingly cannot be disputed that the Respsondent’s policy on its face discriminates against union solicitation of customers by permitting customer solicitation only by charitable organizations.

In addition, the judge found that the Respondent in fact applied its customer solicitation policy in a discriminatory manner. The judge observed that pursuant to its customer solicitation policy, the Respondent has permitted numerous organizations to solicit customers on its property at the two stores here in issue. For example, in 1988, the year in which the instant labor dispute occurred, the following groups were permitted by the Respondent to solicit customers in front of the Wheeling, West Virginia store for varied purposes: volunteer fire departments were permitted to conduct a bake sale and a candy sale; various youth sport groups and Easter Seals were permitted to solicit for tags; the V.F.W. was permitted to conduct poppy sales; and the Salvation Army was permitted to conduct its bell-ringing collection campaign throughout December. In total, during 1988, there were approximately 23 days of such solicitation activity excluding the month-long Salvation Army activity. With respect to the St. Clairsville, Ohio store, the Respondent’s president testified that the list of groups and activities would be “considerably longer.”

Based on this evidence, the judge correctly found that the Respondent “permitted all kinds of civic and charitable solicitation for a total of almost two months a year.” The Respondent’s contention that its permission of solicitation by charitable and civic organizations constitutes a “limited” exception to its general prohibition against customer solicitation must fail in view of the overwhelming record evidence to the contrary. In these circumstances, the judge correctly concluded that, under well-established precedent, the Respondent’s refusal to permit the instant union solicitation of customers via informational picketing and handbilling while permitting extensive civic and charitable solicitation was discriminatory and hence violative of Section 8(a)(1) of the Act. See, e.g., St. Vincent’s Hospital, [1982-83 CCH NLRB ¶15,324] 265 NLRB 38, 40 (1982), enfd. in pertinent part [100 LC ¶10,940] 729 F.2d 730 (11th Cir. 1984). Indeed, as the judge noted, there are no “legally significant differences” between the instant case and two other cases in which 8(a)(1) violations had been found on the basis of unlawful disparate treatment of union activity. Ordman’s Park & Shop, [1988-89 CCH NLRB ¶15,365] 292 NLRB 953 (1989); D’Alessandro’s, Inc., [1988-89 CCH NLRB ¶15,325] 292 NLRB 81 (1988). The Supreme Court’s decision in Lechmere does not disturb the Court’s statement in NLRB v. Babcock & Wilcox, [30 LC ¶69,911] 351 U.S. 105, 112 (1956), that “an employer may validly post his property against nonemployee distribution of union literature if ... [it] does not discriminate against the union by allowing other distribution.” See Great Scot, Inc., [1992-93 CCH NLRB ¶17,627] 309 NLRB 548 fn.2 (1992). Compare Sparks Nugget, Inc. v. NLRB, [122 LC ¶10,266] 968 F.2d 991, 998 (9th Cir. 1992) (apparently agreeing with the Board that “an employer will violate the Act if there is ‘disparate treatment of protected union activity,'” but finding that it is “not discriminatory” for an employer to pay employees to distribute antiunion handbills “while keeping others out”). But see Davis Supermarkets, [126 LC ¶10,836] 2 F.3d 1162, 1177 (D.C. Cir. 1993). (“Since the NLRA does not confer rights on nonemployees (including customers), neither the givers nor receivers of information are protected [where nonemployees seek access to communicate with customers.] This principle would seem to extend even to cases of alleged discriminatory denial of entry, so long as the people denied access are nonemployees and they seek to communicate with customers.”) [Emphasis added.] The Davis court enforced the Board’s Order (306 NLRB 426, 426-427 (1992)) finding disparate treatment “[b]ecause the Company denied access to ... six employee pickets [who supported one union] while it permitted [another union’s] representatives to enter the ... store to organize employees.” 2 F.3d at 1178.

The Respondent concedes in its exceptions, as it must, that its customer solicitation policy on its face limits solicitation to that undertaken only by charitable organizations. The Respondent nevertheless argues in its exceptions that its actual practice under the policy has been to permit organizations other than charitable ones “to engage in distribution and solicitation which do not adversely affect the promotion of its business.” The Respondent contends that its policy as implemented does not discriminate on the basis of the union or nonunion nature of the organization seeking to solicit its customers, but rather nondiscriminatorily “permits or bans solicitation based on whether or not the activity adversely affects Riesbeck’s business.” In this connection, the Respondent claims that it is “particularly noteworthy” that in 1988 the Respondent permitted the Union access at the Wheeling, West Virginia store to engage in organizational employee solicitation because that activity did not “adversely affect the promotion of Riesbeck’s business.” On the other hand, the Respondent prohibited the union activity at issue here because the Union “requested that customers ‘do not patronize’ the stores, thereby advesely affecting Riesbeck’s business.”

We are not persuaded by the Respondent’s explanation that the actual practice under its customer solicitation policy is nondiscriminatory. Rather, we find that the Respondent’s practice of reviewing and evaluating each message sought to be disseminated, and granting access only if in its judgment the solicitation does not adversely affect the Respondent’s business is unlawfully discriminatory vis-a-vis union solicitation of customers.

The Supreme Court has declared that freedom of speech has long been a basic tenet of Federal labor policy. Letter Carriers v. Austin, [74 LC ¶10,121] 418 U.S. 264, 270 (1974). “This freewheeling use of the written and spoken word ... has been expressly fostered by Congress and approved by the NLRB.” Id. at 272. Indeed, the Court has explained that the enactment of Section 8(c) of the Act “manifests a congressional intent to encourage free debate on issues dividing labor and management.” Linn v. Plant Guard Workers Local 114, [53 LC ¶11,061] 383 U.S. 53 (1966). [5] The Board has accordingly recognized that Federal labor policy favors “uninhibited, robust, and wide-open debate in labor disputes.” Franzia Bros. Winery, [1988-89 CCH NLRB ¶15,135] 290 NLRB 927, 932 (1988), quoting Letter Carriers v. Austin, 418 U.S. at 270.

The Respondent’s practice, based as it is on the content of the solicitation, cannot be reconciled with the robust debate that is protected under the NLRA. A practice that distinguishes among solicitation based on an employer’s assessment of the message to be conveyed is discriminatory within the meaning of Babcock & Wilcox, and its progeny, because in every instance the employer must specifically approve the solicitation of messages protected by the Act. Thus, the Respondent may under its practice permit the distribution on its property of a wide range of messages while at the same time forbidding the distribution of messages that are protected under the Act.

Indeed, that is precisely what occurred in this case. The Union’s informational picketing and handbilling falls plainly within the second proviso to Section 8(b)(7)(C) of the Act, which provides that

nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. [6]

Further, the Board has specifically held that a union’s informational picketing with the message--as in this case--“Please Do Not Patronize ... [Employer] Does Not Employ Members of, or Have a Contract with [the Union]” is lawful activity under the second proviso to Section 8(b)(7)(C) [7] and is conduct protected by Section 7 of the Act. D’Alessandro’s, Inc., supra at 83. The Union was accordingly seeking to disseminate a protected message when it sought to inform the public that the Respondent does not employ union members, or have a contract with the Union, and asked customers not to patronize the Respondent.

Under the Respondent’s practice, however, the Respondent forbade the Union’s distribution of this protected message on its property based on its dislike of the nature of the message. The Respondent accordingly precluded the dissemination of a protected message on its property while permitting, as the judge found, “all kinds of civic and charitable solicitation on its property for a total of almost two months a year.” In these circumstances, it is difficult indeed to characterize the Respondent’s practice as permitting on its property union solicitation of protected messages on an equal basis as it permits an overwhelming amount of other solicitation.

The discriminatory nature of the Respondent’s practice is further evidenced by the discretion vested in the Respondent to ban or permit solicitation activity, including the lawful union consumer appeals involved here, based on the Respondent’s purely subjective judgment whether the activity “adversely affects” its business. A practice based on this subjective standard amounts to little more than an employer permitting on its property solicitation that it likes and forbidding solicitation that it dislikes. Under the Supreme Court’s decision in NLRB v. Babcock & Wilcox, supra at 112, the Board must ensure that an employer “does not discriminate against the union by allowing other distribution.” We would scarely be discharging that responsibility if we countenanced a practice that treats all employer access decisions as purely a matter of subjective business judgment. [8]

In contending that its practice is nondiscriminatory with respect to union solicitation of customers, the Respondent confuses its application of an entirely subjective standard to both union and nonunion solicitation with the application of a truly neutral criterion that treats union solicitation and nonunion solicitation alike. It is true, as the Respondent submits, that it applies the same standard to both union and nonunion solicitation alike. It is true, as the Respondent submits, that it applies the same standard to both union and nonunion solicitation: solicitation is prohibited or permitted based on whether in the Respondent’s judgment the solicitation adversely affects its business. As explained above, however, that standard is discriminatory vis-a-vis union customer solicitation because it vests the Respondent with unfettered discretion to preclude the solicitation of protected messages by unions while permitting a myriad of other solicitation. It is of little significance that the standard does not explicitly forbid solicitation by unions, as the Respondent emphasizes, because the Respondent’s practice permits it to exclude any union solicitation it wishes to without reference to such an express exclusion.

It is disingenuous for the Respondent to argue that in forbidding protected union messages it does not care for and considers bad for business, it acts in a non-discriminatory fashion because it likewise forbids the solicitation on its property of nonunion related messages it does not care for and considers bad for business. [9] The Respondent is under no obligation to open up its property to nonunion messages that it finds distasteful, and it would be most surprising if any employer chose to do so. The prohibition of such messages does not grant the Respondent license to prohibit distribution of protected union messages on its property while allowing abundant charitable and civic solicitation. The Respondent may not discriminate against the Union by opening up its property to a wide range of solicitation that it deems “enhanc[ing to its] business goodwill” and forbidding--as here--the dissemination of messages protected by the Act which it deems bad for business.

In determining whether the Respondent’s customer solicitation practice is discriminatory, we have carefully considered the fact that the Respondent granted the Union access on one occasion to engage in organizational employee solicitation. In the circumstances of this case, we find that this evidence is entitled to little weight. That the Respondent elected to permit in one instance union organizational solicitation is not probative as to whether the Respondent has discriminated against the distribution of protected union messages in subsequent instances. This is so because the Respondent in each instance makes a new subjective determination whether the solicitation is permissible and its prior decision is entirely separate from subsequent consideration of union solicitation. Furthermore, the Respondent concedes that its allowance of union organizational solicitation of employees did not implicate its policy at issue here concerning the solicitation of customers. The Respondent acknowledges that it has two “independent” solicitation policies: one involves the solicitation of customers and the other involves the solicitation of employees. The Respondent permitted the organizational solicitation pursuant to its policy regarding the solicitation of its employees, and the Respondent concedes that that policy is not involved in this case. Where, as here, an employer states that it has two independent policies and only one is in issue, we believe that it is appropriate to focus upon the policy that is challenged to be unlawful (solicitation of customers) and not attempt to evaluate conduce governed by a different policy that is not before us. [10]

In sum, finding the Respondent’s customer solicitation policy to be discriminatory on its face and in its application, we conclude that the Respondent’s denial of access to the Union to picket and handbill near the customer entrances to two of its stores constituted unlawful disparate treatment of union activities in violation of Section 8(a)(1). [11]

B. The Respondent’s State Court Actions Against the Union

As noted above, the Respondent filed civil complaints in Ohio and West Virginia state courts seeking injunctive relief against the Union’s picketing and handbilling activity. On September 9, 1988, the Courts in each state issued temporary restraining orders prohibiting the Union’s activity outside the Respondent’s customer entrances and limiting the activity to public property away from the Respondent’s stores. The temporary injunction issued by the West Virginia Circuit Court was made permanent on December 19, 1988. [12] The Respondent’s action in Belmont, Ohio Circuit Court was dismissed on March 7, 1991, on the ground that the Respondent’s complaint was preempted by the National Labor Relations Act. [13]

In Loehmann’s Plaza, [14] which issued after the judge’s decision here, the Board held that once a complaint issues alleging, as in this case, the unlawful exclusion of employees or union representatives from the employer’s property, any state court lawsuit concerning the question is preempted by the Board’s proceedings. [15] Further, the continued pursuit of such a lawsuit following complaint issuance violates Section 8(a)(1) of the Act.

Applying the rule of Loehmann’s Plaza to this case, we find that the Respondent violated Section 8(a)(1) by continuing to maintain its Ohio and West Virginia state court actions against the Union after the General Counsel issued a complaint alleging that the Respondent had unlawfully denied the Union access to its St. Clairsville and Wheeling facilities. [16] It is undisputed that the Respondent filed its state court complaints on September 8 and 9, 1988. It is further undisputed that the Union filed unfair labor practice charges on September 19 and 26, 1988, and the General Counsel issued a complaint on February 5, 1990. As we stated in Loehmann’s Plaza, a respondent has an affirmative duty to take action to stay the state court proceedings following issuance of the Board complaint. [17] There is no evidence in this case that the Respondent took any action to stay the state court proceedings. We accordingly find that the Respondent violated Section 8(a)(1) by its continued maintenance of the state court lawsuits after the complaint in this proceeding issued on February 5, 1990. [18] Great Scot, Inc., 309 NLRB at 549-550; Davis Supermarkets, [1991-92 CCH NLRB ¶17,123] 306 NLRB at 427, enfd. [126 LC ¶10,836] 2 F.3d at 1179, 1180.

[Dissent]

Members Stephens and Cohen, dissenting: We agree with our colleagues in the majority that the Supreme Court’s decision in Lechmere v. NLRB, 112 S.Ct. 841 (1992), did not eliminate what might be termed the “discrimination” exception to the rule of NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956); and we adhere to the Board’s post-Lechmere decisions that so hold. E.g., Great Scot, Inc., 309 NLRB 548 fn.2 (1992). We disagree, however, that the particular facts established on the record in this case permit a finding of discrimination. For the reasons set out below, we would dismiss the complaint.

There are three pieces of evidence and one evidentiary gap that, considered together, we find determinative. First, the Respondent’s detailed policy governing on-premises solicitation by outside groups (appendix B) contained a specific rule (no. 4) that absolutely prohibited “Solicitation of or distribution to customers by any group or individual seeking to solicit Riesbeck’s customers not to patronize Riesbeck.” Second, the Union’s picket signs and handbills all urged customers not to patronize Riesbeck. Third, the Respondent had allowed nonemployee union agents on its property to solicit employees in an organizational campaign, thereby demonstrating that the policy’s general statement about enhancing “business goodwill” was not a cover for barring unions, including even those that respected the explicit prohibitions applicable to all groups and individuals. [19] Finally, there is no evidence that the Respondent had ever disparately applied its rule barring solicitations with “do not patronize” messages. [20] In short, Respondent permits nonboycott solicitations by nonunions and unions, and it forbids boycott solicitations by unions and nonunions. In our view, such a practice does not discriminate against union activity.

In the absence of discrimination, we find no basis for predicating an unfair labor practice on the Respondent’s exclusion of the nonemployee union agents carrying out the Union’s “do not patronize” campaign. Our colleagues rely on such cases as Letter Carriers v. Austin, 418 U.S. 264 (1974), and Linn v. Plant Guard Workers Local 114, 383 U.S. 53 (1966), for the proposition that Congress intended to foster, through our Act, “freewheeling use of the written and spoken word” (Austin, supra at 270) and to “encourage free debate on issues dividing labor and management” (Linn, supra at 62). We do not dispute that proposition, but we question its relevance here. In those cases, the issue before the Court was whether state libel laws could be used to penalize, by means of damage judgments, speech that was protected by Section 7 of the Act or its analogue in a Federal executive order. The Court decreed an accommodation with policies of the Act pursuant to which there could be no liability under state libel laws for speech in labor disputes if that speech did not amount to a reckless or knowing falsehood. Austin, supra at 281. The issue in the present case is whether the Employer can bar access to private property under its control to persons who are not its employees and who are engaged in expressing views protected by Section 7 of the Act. The Supreme Court in Hudgens v. NLRB, 424 U.S. 507 (1976), foreclosed reliance on concepts stemming from First Amendment free-expression considerations; [21] and the Court in Lechmere, supra, as noted above, left standing the prohibition against discriminatory access policies, but otherwise applied a rule that turns on considerations other than the strength or importance of the Section 7 rights at issue.

We are not persuaded by our colleagues’ assertion that the Respondent’s policy is overly broad on its face and that the Respondent is given wide discretion under that policy. There is no evidence that the policy, as actually interpreted and applied, operates to discriminate against union activity. [22]

Because we would find that the Respondent was not unlawfully interfering with a protected right in barring the access at issue in this case, we would further find that the state court actions enforcing the Respondent’s property rights were not unlawful. [23] We would therefore dismiss the complaint.