O'Neil's Markets v. United Food and Commercial Workers' Union, Meatcutters Local 88, AFL-CIO, CLC
| Decision Date | 31 October 1996 |
| Docket Number | I,AFL-CI,Nos. 95-3410,CL,95-3667,s. 95-3410 |
| Citation | 95 F.3d 733 |
| Parties | 153 L.R.R.M. (BNA) 2291, 65 USLW 2217, 132 Lab.Cas. P 11,657 O'NEIL'S MARKETS, doing business as Food For Less, Inc., Petitioner, v. UNITED FOOD AND COMMERCIAL WORKERS' UNION, MEATCUTTERS LOCAL 88,ntervenor, National Labor Relations Board, Respondent. O'NEIL'S MARKETS, doing business as Food For Less, Inc., Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner, United Food and Commercial Workers' Union, Meatcutters Local 88,ntervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gary P. Paul, argued, Clayton, Missouri (James N. Foster, Jr., on the brief), for appellant.
John Ferguson, Assistant General Counsel, argued, Washington, DC, for appellee.
Before BOWMAN, BEAM, and MURPHY, Circuit Judges.
Petitioner O'Neil's Markets (O'Neil's) appeals the decision of the National Labor Relations Board (the Board) finding that O'Neil's violated section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), by preventing union organizers from distributing handbills on the sidewalk and parking areas surrounding its grocery store. The NLRB has filed a cross-application for enforcement of its order. We affirm in part and reverse in part.
O'Neil's owns Food For Less, a grocery store located in the River Roads Mall in Jennings, Missouri. River Roads Mall is located at the intersection of New Halls Ferry Road, which runs north and south, and Jennings Station Road, which runs east and west. Food For Less is located in a building attached to the east end of the mall. The front entrance of the store, which faces south, is only accessible to customers from its parking lots and from the sidewalk in front of the store. Between the sidewalk and the south parking lot is a driveway, designated a "No Parking" area, used by cars traveling to and from stores in the mall.
O'Neil's leases the building in which Food For Less is located and the surrounding parking areas from Sam Wolff & Co. The lease agreement provides that O'Neil's shall have, in common with Sam Wolff & Co. and its other lessees, "a mutual non-exclusive easement of ingress, egress, and parking for its customers, employees and invitees over and upon the rights of way and parking areas." The lease also provides, in relevant part:
No. 4-A: Lessor hereby grants to Lessee for the benefit of Lessee's officers, employees, agents, customers, and invitees, during ...
the term hereof, in common with others entitled to such use, the non-exclusive right to use said parking area or areas and access roads....
No. 4-C: The common areas shall be subject to the exclusive control and management of Lessor....
No. 4-D: In addition to the rents hereinabove provided for, Lessee agrees, during the terms hereof, to pay to Lessor an accommodation charge of $.25 per sq. ft. per year which shall be Lessee's share of Lessor's gross cost and expense of operating and maintaining of the public area.... [T]here may be included in such gross cost and expense, the cost of public liability and property damage insurance, operation, repairs, management, security, maintenance, cleaning, lighting and other utilities, line painting, and snow removal.
Nonetheless, except for snow removal, Sam Wolff & Co. has not billed O'Neil's for maintenance of the public areas for several years. In fact, despite the lease provisions, O'Neil's routinely maintains the parking areas and sidewalk.
As owner of Food For Less, O'Neil's prohibits soliciting by its employees, who are not unionized, and by nonemployees. Thus, O'Neil's has refused requests by various organizations and individuals to solicit near the store. In addition, a "No Soliciting or Trespassing" sign is generally posted in front of the store. On September 20, 1994, however, that sign was not on display. On that day, two members of the United Food and Commercial Workers, Meatcutters Local 88 (the Union) began peacefully distributing handbills to Food For Less customers while standing on both the sidewalk and the "No Parking" area in front of the store. The two handbillers were not employed by Food For Less. The handbills stated:
(AFL-CIO)
REQUEST THAT CUSTOMERS
DO NOT PURCHASE ANY MERCHANDISE
FOOD FOR LESS
LOCAL 88 HAS NO DISPUTE WITH ANY OTHER EMPLOYER
After approximately one-half hour of this picketing, representatives of Food For Less advised the handbillers to leave the area. They suggested that the handbillers move to a public sidewalk located east of the store next to New Halls Ferry Road, or to an area west of the River Roads Mall. When the handbillers did not leave the area, the Food For Less representatives called the local police. The handbillers then ceased handbilling.
Following this incident, the Union filed an unfair labor practice charge with the Board alleging that O'Neil's had unlawfully interfered with its right to engage in "area standards handbilling" 1 as protected by section 7 of the NLRA. 2 The Board's General Counsel issued a complaint, charging O'Neil's with a violation of section 8(a)(1) of the NLRA. 3 In response, O'Neil's argued that the Union's handbilling was not protected by section 7. In the alternative, O'Neil's contended that its property rights outweighed the Union's section 7 rights and therefore that it could lawfully exclude the Union handbillers.
The parties stipulated to the facts in the case and submitted the matter to the Board. The Board found that the General Counsel and the Union had made a prima facie showing that the Union was engaged in valid area standards handbilling and that area standards activity is protected under section 7. The Board further concluded that since O'Neil's possessed only a nonexclusive easement in the sidewalks and parking areas surrounding Food For Less, its property interest was insufficient to exclude the handbillers. Thus, the Board held that O'Neil's removal of the Union handbillers constituted a violation of section 8(a)(1) of the NLRA.
On appeal, O'Neil's argues, among other things, that: 1) private property owners are not obligated to accommodate area standards handbilling, a "weak" section 7 right; 2) the Board did not require the Union to establish the validity of its area standards message, thereby improperly allocating the burden of proof on that issue; and 3) O'Neil's had a sufficient state law property interest to exclude the Union members from the sidewalk and parking areas, and, therefore, its exclusion did not constitute an unfair labor practice.
The United States Supreme Court has long recognized limitations on the rights of nonemployee 4 union organizers to engage in section 7 activities on private property. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), an employer refused to allow union organizers not employed by the company to distribute union literature to the company's employees on the company-owned parking lot. The Supreme Court reversed the Board's finding that the employer had violated section 8 of the NLRA. The Court noted that although accommodation between union organizing rights and property rights should be obtained "with as little destruction of one as is consistent with the maintenance of the other," any accommodation must be mindful of the distinction between employees and nonemployees. Id. at 112-13, 76 S.Ct. at 684-85. Few restrictions can be placed on employees' ability to organize, but the rights of nonemployee organizers to access private property are far more circumscribed. Therefore, although private property rights must in limited circumstances yield to nonemployee union activities, generally "an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message." Id. at 112, 76 S.Ct. at 684.
The Court reaffirmed Babcock 's holding in Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992). In so doing, the Court specifically rejected the Board's attempts to transform Babcock and employer's rights. Id.
Like Babcock and Lechmere, the present case presents a conflict between union rights and private property rights. It does not, however, fit neatly into the Babcock/Lechmere construct. Unlike the employers in those cases, O'Neil's does not own the parking lot or sidewalk at issue. Moreover, the Union members sought to reach Food For Less customers with its message, rather than its employees. Accordingly, in order to determine how Babcock and Lechmere apply, we must decide whether the Union was exercising a section 7 right and, if so, whether O'Neil's property interest is sufficient to allow it to exclude the organizers without violating that right. As always, we will enforce the Board's order " 'if the Board has correctly applied the law and if...
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