Lechmere, Inc. v. N.L.R.B.
| Decision Date | 10 January 1990 |
| Docket Number | No. 89-1683,89-1683 |
| Citation | 914 F.2d 313 |
| Parties | 135 L.R.R.M. (BNA) 2329, 59 USLW 2194, 116 Lab.Cas. P 10,299 LECHMERE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Robert P. Joy, with whom Keith H. McCown and Morgan, Brown & Joy, Boston, Mass., were on brief, for petitioner.
Richard A. Cohen, Atty., with whom Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Howard E. Perlstein, Supervisory Atty., Washington, D.C., were on brief, for respondent.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.
This matter is before us on an employer's petition to review an order of the National Labor Relations Board and a cross application for enforcement. The case raises significant questions concerning the balance which must be struck in the workplace between employers' private property rights and workers' rights of self-organization. We uphold and enforce the order of the Board.
The events giving rise to this litigation occurred in Newington, Connecticut. Newington is a suburb of Hartford. The relevant metropolitan area (Greater Hartford) includes at least three cities (Hartford, Newington, New Britain) and close to 900,000 people. The employer, Lechmere, Inc. (Lechmere), is a Massachusetts corporation which operates a chain of retail stores throughout New England. These emporia sell a wide range of "hard goods," including appliances, audio/video equipment, housewares, and sporting paraphernalia. In 1986, Lechmere opened a store in Newington, situated on a roughly rectangular parcel of land approximately 880 feet from north to south and 740 feet from east to west. The tract, commonly called the Lechmere Shopping Plaza, is bounded on the east by a major thoroughfare, the Berlin Turnpike, and on the north by Pascone Street.
Lechmere's store is the dominant structure on the site and stands at the south end of the rectangle. On the west side are 13 smaller shops owned by Newington Commercial Associates Limited Partnership (NewCom), an unrelated entity. Two public pay telephones are located in front of this shopping strip. In June 1987, only four satellite stores were open for business.
The Plaza's parking areas are in servitude to all of the mercantile establishments. There are no signs purporting to restrict access to, or use of, the parking spaces; no stores have exclusive parking privileges; patrons or employees of any merchant may park anywhere. The primary parking lot (PPL) lies north of Lechmere's store and extends to Pascone Street. The satellite stores face the PPL. A smaller parking lot, more distant from the shopping strip, is situated to the east of Lechmere's store. Ownership of the real estate is divided between Lechmere and NewCom.
A grassy apron approximately 46 feet wide runs the entire length of the property along the Berlin Turnpike. The only breaks in that apron are for ingress to, and egress from, the shopping center. Most of that apron is public property. The remainder of the apron--the four foot strip furthest from the highway--is owned by Lechmere. At the main entrance, the grass continues in a westerly direction for approximately 50 feet on the north side only. Lechmere owns this patch. It also owns the land occupied by, and immediately surrounding, its store. NewCom owns the land occupied by, and immediately surrounding, the shopping strip. The remainder of the parcel, including most of the parking area, is owned jointly by Lechmere and NewCom.
There are three entrances to the property. The principal ingress is from the Berlin Turnpike, providing easy access to Lechmere's establishment and the strip stores. At this entrance, a directory-type sign identifies two of the stores in the shopping center as "Lechmere" and "Card Gallery." A second ingress route runs off Pascone Street, north of Lechmere's store and east of the shopping strip. This entrance faces the front of Lechmere's store and, like the main entrance, feeds into the PPL. Finally, there is a delivery entrance at the southernmost end of the property, running from the Berlin Turnpike to a loading dock behind Lechmere's building.
The public can enter the Lechmere store at one of two points. The principal doorway, facing north, is directly accessible from the PPL. The secondary door, on the store's east side, fronts a vehicular pick-up area. Lechmere employees who drive to work are instructed to use this entrance. They are also asked to park in the easternmost portion of the PPL, that is, in the spaces closest to the Berlin Turnpike. On each set of doors to Lechmere's premises are 6" X 8" signs stating:
Lechmere's no-solicitation policy is reduced to writing and has been in effect since 1982. It states:
Solicitation of associates [i.e., employees] in the work areas during working time is strictly prohibited. It is strictly prohibited in all selling and public areas at all times. Non-working time includes break periods, meal periods and other specified periods during the work day when associates are properly not engaged in performing their work tasks.
Distribution of literature in work areas and public selling areas is prohibited.
Non-associates are prohibited from soliciting and distributing literature at all times anywhere on Company property, including parking lots. Non-associates have no right of access to the non-working areas and only to the public and selling areas of the store in connection with its public use.
Historically, the no-solicitation policy has applied to the store and the parking lots. It has been strictly enforced. Various groups, including the American Automobile Association, the Salvation Army, and the Girl Scouts, have from time to time been prevented from soliciting on the premises.
In mid-1987, Lechmere had roughly 200 employees in Newington, all non-union. Beginning on June 16 of that year, Local 919 of the United Food and Commercial Workers (the union) placed a series of five advertisements in the Hartford Courant, a daily newspaper, in an attempt to organize Lechmere's work force. The advertisements each contained a replica of a union authorization card captioned "mail today" or "mail it now." On one occasion, the ad consisted of a flyer distributed in conjunction with the newspaper. Given the Courant's limited penetration of the populous suburban area--it was delivered to fewer than 100,000 subscribers daily--and the fact that Lechmere systematically removed the ads from newspapers delivered to its Newington store, there is no particular reason to believe that many of the affected employees actually saw the ads.
On June 18, nonemployee union organizers started leafleting cars in the PPL, concentrating on the east side, thinking that a high percentage of these vehicles belonged to employees. Petitioner's assistant manager asked the organizers to leave and petitioner's security guards removed the pamphlets. A brochure which had been handed to an employee was confiscated by a guard. On two other occasions, handbilling sorties were aborted in a similar manner.
On the morning of June 20, union organizers, not part of Lechmere's work force, stood on the grassy apron, within a few feet of the Berlin Turnpike, in effect bracketing the main entrance. They attempted to distribute handbills to cars entering the PPL, assuming that, because of the early hour, the intended recipients were employees. A cadre of Lechmere officials responded; the general manager, various supervisors, and three security guards emerged from the store and confronted the union representatives. The manager told the organizers that they were on Lechmere's property and insisted that they leave. He threatened to call the police if they did not comply. Contending that they were on public land, the organizers refused to depart. Petitioner made good its threat. 1 On arrival, the police officers questioned the organizers, confirmed that they were on public property, and allowed them to continue their activities. At the same time, the police observed that the organizers were dangerously close to the highway and warned them against obstructing traffic flow. Because Lechmere's security guards were videotaping their movements, the union representatives departed. 2
From August 7 through September 5, the union picketed Lechmere, regularly stationing personnel on the public portion of the grassy apron. During the next six months, intermittent picketing took place. The union also scanned the license plates of cars parked in the general area where employees had been told to park, and checked the information obtained with the Connecticut Department of Motor Vehicles. Notwithstanding these efforts, the union was only able to secure the names and addresses of 41 nonsupervisory Lechmere employees. Making what use it could of this information--nearly half of the 41 persons proved to have unlisted telephone numbers--the union tried to call or visit a good many of these workers. Several were high school students whose parents barred union organizers from talking to them. Four mailings to the contingent produced only one signed authorization card.
The union filed unfair labor practice (ULP) charges on July 21, 1987. After an evidentiary hearing before an administrative law judge (ALJ), it was concluded that Lechmere violated Section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), in two ways: (1) by refusing to allow representatives of Local 919 to engage in organizational activity on company property, and (2) by attempting to remove union representatives from a public area adjacent to company property. Following...
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