JMB Properties Co.

National Labor Relations Board - Board Decisions

Dec 31, 1991

305 N.L.R.B. 978 (N.L.R.B. 1991)

978
305 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with the judge that the Respondent did not violate the
Act by prohibiting the Union from handbilling at the interior mall
entrance to Dillard’s department store at the Pasadena Town Square
Mall, but we do so for the following reason. We find that the Gen-
eral Counsel failed to establish that handbilling at the three Dillard’s
locations where Oklahoma Installation Inc., the primary employer,
was performing work was not a reasonable alternative means of
communication in lieu of access to the Dillard’s store in the Pasa-
dena mall where Oklahoma Installation Inc. was neither working nor
scheduled to work. Hardee’s Food Systems, 294 NLRB 642 (1989),
enfd. 904 F.2d 715 (D.C. Cir. 1990). In view of this finding, it is
unnecessary to pass on the judge’s alternative means analysis. Be-
cause we are adopting the recommended Order dismissing the com-
plaint, we also find it unnecessary to pass on the Respondent’s
cross-exceptions to the judge’s evidentiary ruling in sec. C, 1 of his
decision.
1 All dates are for 1990 unless otherwise indicated.
2 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s and RX for the Respondent’s.
JMB Properties Company and Carpenters District
Council of Houston & Vicinity, affiliated with
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO. Case 16–CA–14814
December 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 24, 1991, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Tamara J. Gant, Esq., for the General Counsel.
Judith Batson Sadler, Esq. and Charles E. Sykes, Esq.
(Bruckner & Sykes), of Houston, Texas, for Respondent
JMB.
Victor J. Bieganowski, Esq. and Greg Allen, Esq.
(Bieganowski & Allen), of Houston, Texas, for the Charg-
ing Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is an
area standards handbilling case. The question is whether the
Union’s Section 7 right should prevail over the property right
of a covered shopping mall, Pasadena Town Square Mall
(TSM), so that the Union can handbill Dillard’s retail store,
a secondary employer, at the interior mall entrance to
Dillard’s. Answering the question no, I dismiss the com-
plaint.
I presided at this hearing in Houston, Texas, on April 18–
19, 1991, pursuant to the December 19, 1990 complaint
issued by the General Counsel of the National Labor Rela-
tions Board through the Regional Director for Region 16 of
the Board. The complaint is based on a charge filed Novem-
ber 13, 1990 (and later amended), by Carpenters District
Council of Houston & Vicinity, affiliated with United Broth-
erhood of Carpenters and Joiners of America, AFL–CIO
(Union, CDC, or Charging Party) against JMB Properties
Company (Respondent, JMB, or Company).1 Company’s
name appears as amended at the hearing (1:8).2
In the complaint, as amended at the hearing, the General
Counsel alleges that Respondent JMB violated Section
8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), on August 31, Sep-
tember 1, and November 10, 1990, by prohibiting CDC, the
Union, from handbilling at the interior mall entrance of
Dillard’s retail store in the Pasadena Town Square Mall,
Pasadena (Houston), Texas.
By its answer Respondent admits certain factual matters
but denies violating the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Company (Respondent JMB) is an Illinois general partner-
ship owned by JMB Income Properties Limited X, a limited
Illinois partnership. JMB provides management and security
services in shopping malls, including Pasadena Town Square
Mall (TSM), which is located in Pasadena, a suburb of Hous-
ton, Texas. During the past 12 months, JMB provided over
$50,000 of its services to Dillard’s Inc., an enterprise en-
gaged directly in interstate commerce. Respondent admits,
and I find, that it is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The labor dispute
a. Case 16–RC–9320
James R. Herd Sr. has been a business agent and organizer
with the Union for about 3 years (1:51–52). Around late
spring-early summer 1990, Oklahoma Installation Inc. (OKI)
was performing construction work, including renovations, for
certain department stores of Dillard’s and Foley’s in the
979JMB PROPERTIES CO.
3 I show the Union’s name in regular case because, although in all
capitals on the handbill, it is in light print and smaller than the large,
bold capitals of the headings.
Houston, Texas area. Herd and the Union began an orga-
nizing drive among OKI’s carpenters, filing a representation
petition (GCX 16) in Case 16–RC–9320 on June 22, 1990
(1:52–62).
Following a hearing on the Union’s election petition, the
Regional Director for NLRB Region 16, in his Decision and
Direction of Election (DDE) of August 14, directed an elec-
tion in a unit composed of OKI’s carpenters, carpenters,
helpers, and dual-function clerks employed in the Houston
area (GCX 17; 1:138). As of the time of the representation
hearing OKI had five jobsites in the Houston area: two stores
of Foley’s and three of Dillard’s (GCX 17 at 3). The three
Dillard’s stores were those at the Galleria, Town and Coun-
try Shopping Center, and at Westwood Mall, all in Houston
(GCX 17 at 3; 1:120). By the time of the election, Herd tes-
tified, work at the two Foley’s jobsites had been completed,
leaving only the three Dillard’s jobsites. (1:35). Because of
the three remaining jobsites and information that OKI would
be helping to build two new Dillard’s stores, the Union’s
campaign continued, Herd testified (1:136).
The election was held on September 11 among a unit of
some 20 eligible voters. The Union lost by a substantial
number of the valid votes counted. Because there were 36
challenged ballots, however, NLRB Region 16, by order of
September 27, 1990, directed a hearing on the challenged
ballots (GCX 18).
Business Agent Herd testified that he was not aware of
OKI’s having done any work at the Pasadena Town Square
Mall (TSM) (1:120). However, Herd also testified that the
Union had information, a report (GCX 13) from the Dodge
Corporation, that Dillard’s at TSM was scheduled to have
some remodeling (1:53–62).
b. The handbills at Dillard’s—Pasadena TSM
In a moment I shall describe the Pasadena TSM. Our
focus in this case is on handbilling which the Union did at
the interior mall entrance to the Dillard’s store at TSM on
August 31 and November 10, 1990. On those dates, the com-
plaint alleges, JMB unlawfully restricted the Union’s
handbilling efforts at TSM.
The parties stipulated (GCX 3; 1:7–8) that on August 31
and November 10 the Union distributed (as I describe later
in more detain) three handbills. As neither the stipulation nor
the evidence suggests otherwise, I interpret the stipulation to
mean that copies of each of the three handbills were distrib-
uted on both dates. For convenience of discussion, I des-
ignate them as HB1, HB2, and HB3. The first two have bor-
ders depicting American flags and begin, in large capitals
with stars and stripes, ‘‘ATTENTION FELLOW-CITI-
ZENS.’’ Two paragraphs of text follow on HB1 and HB2,
with the text differing on HB1 from that on HB2. Then fol-
lows, centered, ‘‘DO NOT PATRONIZE DILLARD’S,’’
with the first three words printed with stars and stripes. Al-
though the exhibits in evidence are black and white photo-
copies, the different shades suggest that the originals were in
color. The Union’s label is shown at the bottom left.
Aside from the Union’s label, the printed portion of HB1
reads:3
ATTENTION
FELLOW-CITIZENS
By patronizing this establishment we have afforded the
owner the need to remodel. In remodeling, the owner
has selected OKLAHOMA INSTALLATION who does
not hire local workers. Rather, they find it necessary to
bring in workers from out of town, further eroding the
already overburdened tax structure of our great city, de-
stroying the job stability and security of HOUSTON.
Spend your money with establishments that help you
and your community to be more prosperous . . . not
those that award construction contracts to contractors
that do not provide jobs to our own people.
DO NOT
PATRONIZE
DILLARD’S
Westwood Mall Galleria Mall
Town and Country Mall
THANK YOU FOR YOUR
COOPERATION
Carpenters District Council of Houston
2600 Hamilton Houston Texas 77004
(Label) BE AMERICAN
BUY AMERICAN
The only differences in HB2 from HB1 are in the two
paragraphs of text. In HB2 they read:
By patronizing this establishment we have afforded the
owner the need to remodel. In remodeling, the owner
has selected OKLAHOMA INSTALLATION who does
not carry health insurance for their employees. This un-
dermines the already overburdened public health serv-
ices, and overtaxes the standard of living in this area.
Spend your money with establishments that help you
and your community to be more prosperous . . . not
those that award construction contracts to contractors
that do not provide HEALTH CARE to workers.
HB3 is a bit different. The first statement is in large cap-
itals, the second in smaller capitals, and the third is mostly
in regular case. That is followed by the Dillard’s name in a
circle (and centered on the page) with a cross-through line
(meaning No), situated above a do not patronize request. To-
ward the bottom the Union’s label appears on both sides.
Thus (without the labels and without the ‘‘No’’ cross-
through symbol, and again showing the Union’s name in reg-
ular case):
WILL THE PUBLIC PAY HIGHER TAXES
AND HEALTH CARE COST
CONSTRUCTION WORKERS REMODELING DIL-
LARD STORES DO NOT RECEIVE HEALTH IN-
SURANCE
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To meet the burden of providing health care to unin-
sured workers employed by OKLAHOMA INSULA-
TION at the Westwood Mall DILLARD’S. YOUR
TAXES and HEALTH INSURANCE RATES may go
UP
(DILLARD’S/NO)
PLEASE DO NOT PATRONIZE DILLARD’S
Let DILLARD’S know that hiring contractors who un-
dermine important work standards, such as health insur-
ance for workers IS NOT GOOD BUSINESS
Carpenters District Council of Houston
2600 Hamilton, Houston Texas 77004
(713) 654–1018
(Label) BE AMERICAN (Label)
BUY AMERICAN
LOOK FOR THE LABEL
MADE IN AMERICA
2. Pasadena Town Square Mall
a. Management
Stipulations (GCX 3) and admitted pleadings establish, as
earlier mentioned, that JMB manages, and provides security
for, Pasadena TSM. The record does not disclose who owns
TSM and the land on which the building sits.
In operating TSM, Lutz Berger is JMB’s general manager.
Tommy E. Wetuski is the operations supervisor or manager.
During the relevant time, D. J. Daniel, J. Johnson, A. J.
Szulanczyk, and Israel Torres were security guards and ad-
mitted agents of JMB. At all relevant time, JMB controlled
and managed the mall area at the interior entrance to
Dillard’s.
B. Geography and layout
A suburb of Houston, Pasadena lies about 12 miles (center
to center) southeast of Houston (1:54–55). A covered and en-
closed mall (1:57), Pasadena TSM lies within the city limits
of Pasadena. (1:133). The shopping center property is adja-
cent to the intersection of Southmore and South Tatar
Streets. South Tatar runs north and south, with Southmore
running east and west (GCX 20; 1:55; 2:227). Each street
has a speed limit of 35 miles per hour and four lanes (two
in each direction), with Southmore having a turning lane.
The parking spaces surrounding the TSM are common rather
than assigned to specific stores (1:55:56).
A general floor plan or diagram of TSM, with the stores
numbered, is in evidence (GCXs 15, 20), along with a more
detailed plan (RX 12) showing the square footage. The total
leasable area of the mall is 226,177 square feet, and the
property has 3327 vehicle parking spaces (RX 12). By my
count, there are 92 retail stores listed as mall stores (GCX
20). The mall has two ‘‘anchor’’ stores, Dillard’s at one end
and Foley’s at the other (1:54). The mall has a single level
(2:257). As one faces the layout plans (GCXs 15, 20; RX
12), Dillard’s is at the left and Foley’s at the right. The Fo-
ley’s end is on the Southmore side of the property and
Dillard’s sits off the Tartar street side. The mall apparently
is built at something of a northwest to southeast diagonal on
the property (1:56, 94) so that Dillard’s is not directly north,
although it generally is at the north end of the mall and Fo-
ley’s at the south end.
It is unclear from the record how the property is otherwise
bounded except that Harris Street is on one side (2:227). A
Houston city map shows that Harris runs east and west above
the property. It is not clear whether TSM adjoins Harris
Street. Perhaps not, for Business Agent Herd testified that he
did not think a vehicle could enter the TSM parking lot from
that (north) end (1:94–95). I infer from the record that there
is no east entrance to the parking lot either. I therefore find
that all vehicle entrances to the TSM parking lot are from
Tartar on the west (left side of the TSM layout) or from
Southmore on the south (right side of the layout). The num-
ber of street entrances is not given in the record. However,
sidewalks (public, apparently) abut Tarter and Southmore
(2:227).
Tommy E. Wetuski has been the operations supervisor or
operations manager at TSM since TSM opened in March
1982 (2:218, 243; GCX 3 at 2). Wetuski testified (2:230–
231) that at each vehicle entrance to the parking lot there is
posted, and has been from the beginning, a sign (RXs 10,
11) with a restriction reading (1:205–206):
NOTICE TO THE PUBLIC
The Property Comprising
Pasadena Town Square
Is Private Property.
Solicitation Or Distribution
Of Handbills Or Littering Is
Absolutely PROHIBITED On This
Property.
Written Permission Must Be Obtained From
The Management Office To Use This Property
For Any And All Activities Other Than Shopping
The Parking Area Provided By Pasadena Town Square
Is Intended Only For The Use Of Customers,
Employees, Invitees, And Bona Fide Delivery Vehicles.
No Overnight Parking.
All Others Will Be Removed At The
Expense Of The Owner.
Pasadena Town Square
Wetuski further testified, without contradiction, that JMB
strictly enforces the posted restriction and has never per-
mitted any exceptions, not even for charities or for children
selling candy (2:231, 254). Charities and other nonprofit or-
ganizations are allowed, after application, to hold meetings,
parties, and weddings, but no fund raisers, in the community
room situated behind the TSM office, but their activities are
restricted to that room (2:255–256, 260–261).
Dillard’s has three entrances to the outside plus a customer
pickup. Customers, however, cannot enter the store through
the customer pickup (1:56, 144–145; 2:227). Foley’s has the
same number of outside entrances (1:46), making a total of
six outside entrances for customers from the two anchor
stores. Palais Royal, listed as a ‘‘family apparel’’ store (GCX
20), a medium size store (1:56, 146), has one outside en-
981JMB PROPERTIES CO.
trance for customers (1:146). Customers also may enter the
mall building at four independent entrances (two on each
side of the building), two of those being toward the Dillard’s
end and two situated closer to the Foley’s end. (GCX 15;
1:93, 121, 144–145). On the layout plan (GCX 15, 20) these
independent entrances are designated by solid triangles.
Hence, these are the four triangle entrances.
Entrance to the many specialty stores at TSM is from in-
side the mall (1:145), and there is one inside entrance (from
the mall) to Dillard’s (1:57) and one to Foley’s. At least
some of the shoppers enter an outside entrance at Dillard’s
or Foley’s, walk through that store, proceed through the mall,
and enter the other anchor store to shop (1:140–141). Some
shop at one anchor store, then get in their cars and drive
around to the other end, park, and shop at that end of TSM.
(2:250). Still others enter through one of the four triangle en-
trances to the mall (1:141).
The record does not disclose the number of shoppers vis-
iting TSM on a typical day, nor the number of customers,
or potential customers, entering Dillard’s on a typical day.
August 31, 1990, was a Friday, and November 10 and 17
were Saturdays. Whether TSM was busy or less than crowd-
ed on those dates, no doubt such days were busier at TSM
than the usual Monday or Tuesday.
There is dispute between Herd and Wetuski concerning
whether most shoppers enter Dillard’s through its three out-
side entrances or from the inside entrance where the store
opens to the mall interior. From his three visits to TSM, and
the general experience of Herd in visiting malls, Herd testi-
fied that a majority of TSM’s shoppers enter either through
the four independent entrances to the mall building or
through Foley’s three outside entrances (1:141–142). Thus, in
Herd’s opinion most of Dillard’s shoppers enter through the
inside (mall) entrance to Dillard’s.
Wetuski, in contrast, estimates that 90 percent of Dillard’s
shoppers enter through its three outside doors. Wetuski bases
this on employee parking reports made every Christmas and
from his general observation in his daily walks through
TSM. He concedes he has never made a formal, written sur-
vey, nor watched every customer from parking to entry in
order to establish percentages. (2:226–227, 245–251). As the
testimony of both witnesses appears based in large measure
on generalized observations rather than specific studies, I
find that substantial percentages of the persons entering
Dillard’s enter through the store’s three outside doors and
also from the inside, or mall, entrance.
As we see later, testimony refers to sidewalks at the out-
side entrances to Dillard’s. These are to be distinguished
from the public sidewalks running alongside Tatar and
Southmore Streets. Photographs in evidence show the side-
walks leading to the three outside entrances to Dillard’s (RX
2, east; RX 3, north; RX 4, west). One photograph (RX 1)
gives a good view of Dillard’s inside entrance (viewed from
the left from inside the mall, 1:187; 2:219), and a second
(RX 13) gives a view of a concrete planter box several feet
in front of Dillard’s inside entrance (2:222).
B. Handbilling Restricted
1. Introduction
Turn now to the handbilling events. As a preface, I should
mention that, with two exceptions, the material facts are un-
disputed. The first exception is the question whether security
guard D. J. Daniel told James Herd, the Union’s business
agent, that he could not handbill anywhere on the property,
including the parking lot. The second exception is the ques-
tion whether the Union’s conduct on November 10 was
peaceful or disruptive. On this disputed point the parties, to
some extent, rely on a videotape taken that date by the
Union at the interior mall entrance to Dillard’s.
2. August 31, 1990
a. Pleadings
As amended at the hearing (1:6-7), complaint paragraph 10
alleges that about August 31 JMB, acting through security
guard D. J. Daniel, informed Business Agent James Herd
that he could not continue handbilling at Dillard’s interior
mall entrance because JMB did not allow any handbilling in
the mall. Paragraph 11 alleges that, on the same date, Gen-
eral Manager Lutz Berger threatened Union Agent James
Herd with arrest if he continued such handbilling, and stated
that handbilling was not allowed inside the mall. Paragraph
12 alleges that on the same date security guard Daniel also
told Union Agent John Tohara that he could not handbill at
the interior mall entrance to Dillard’s. By these acts, conclu-
sory paragraph 15 alleges, JMB violated Section 8(a)(1) of
the Act, 29 U.S.C. § 158(a)(1). JMB denies the allegations.
b. Facts
Notwithstanding JMB’S pleadings denial, the parties stipu-
lated (GCX 3 at 2–3) to several of the critical facts. The par-
ties stipulated that on August 31 James Herd and John
Tohara distributed the three leaflets, which I described ear-
lier, at the interior mall entrance to Dillard’s. The parties fur-
ther stipulated:
Respondent, acting through D. J. Daniel, on or about
August 31, 1990, informed Union Agent James Herd
that he could not distribute the leaflets attached as Ex-
hibit A [the three handbills I described earlier] at the
interior mall entrance to the Dillard’s retail store.
And:
Respondent, acting through Lutz Berger, on or about
August 31, 1990, threatened James Herd with arrest if
he continued to distribute the leaflets attached as Ex-
hibit A at the interior mall entrance to the Dillard’s re-
tail store.
Neither General Manager Berger nor security guard Daniel
testified. Copies of written security reports from security
guards Daniel (GCX 10), Szulanczyk (GCX 5), and Torres
(GCX 4, 7, and 8) are in evidence. The reports are consistent
with the stipulations and other evidence. Expanding on the
stipulations, Business Agent James Herd testified that Daniel
said there could be no handbilling inside the mall or on mall
property, and that included the parking lot and [private] side-
walks (1:73, 125). At the close of his security report, security
guard Daniel denies that he said anything to Herd on August
31. Herd testified persuasively, and I credit his version.
Herd’s testimony goes beyond the complaint allegation of the
‘‘interior mall entrance’’ to Dillard’s. As JMB did not object
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to this expansion, I find that the expansion of the complaint
allegation was tried by implied consent.
Herd testified, without contradiction, that he simply gave
handbills to shoppers who would take them, spoke nothing
more than a ‘‘Good Morning’’ type greeting, never blocked
traffic, and never asked anyone not to work (1:62–67). Cred-
iting Herd, I find that his handbilling on August 31 was
peaceful. Security guard Daniel’s report puts the time of
Herd’s handbilling as ‘‘around noon.’’ (GCX 10).
Turning now to the Daniel/Tohara allegation, I note that
the parties’ stipulation names two other security guards rath-
er than Daniel. Thus:
Respondent, acting through Israel Torres and A. J.
Szulanczyk, on or about August 31, 1990, informed
Union Agent John Tohara that he could not distribute
the leaflets attached as Exhibit A at the interior mall
entrance to the Dillard’s retail store.
At the close of the hearing, the General Counsel did not
move to conform the pleadings to the proof. Nevertheless, in
view of the stipulation, I find that the General Counsel, by
implied consent, amended complaint paragraph 12 to sub-
stitute the names of Torres and Szulanczyk for that of Dan-
iel.
When Business Agent Herd, at the Union’s Local 551 hall,
asked for a volunteer to handbill at Dillard’s, union member
John Tohara answered the call (1:157, 163–165). Herd told
him where to handbill, just to pass out handbills, and to be
polite (1:165–166). Tohara handbilled alone (1:157). The re-
ports of security guards Szulanczyk (GCX 5) and Torres
(GCX 4) put the time of Tohara’s handbilling as around 6
p.m. Tohara credibly testified that he was never rude while
handbilling and never got in a customer’s way (1:158–159).
I find that Tohara handbilled peacefully and in a nondisrup-
tive manner on August 31.
3. November 10, 1990
a. Pleadings
About November 10, 1990, complaint paragraph 13 al-
leges, JMB, acting through security guard D. J. Daniel, ‘‘in-
formed Union Agents James Herd and John Tohara that they
could not maintain the handbilling’’ at the interior mall en-
trance to Dillard’s ‘‘and could handbill only on the street by
the exterior mall parking entrances.’’
On the same date, paragraph 14 alleges, JMB, acting
through Operations Supervisor Tommy E. Wetuski, ‘‘threat-
ened to have Union Agents James Herd and John Tohara ar-
rested for criminal trespass if they did not cease the
handbilling activities.’’ The complaint further alleges that
JMB violated Section 8(a)(1) of the Act by the conduct of
Daniel and Wetuski. JMB denies the allegations.
b. Facts
As with the brief handbilling on August 31, most of the
critical facts are undisputed and covered to a large extent by
the stipulations. Again, the two factual disputes are whether
security guard Daniel told Herd that any handbilling would
have to take place off the property and at the street en-
trances, and whether the Union’s handbilling inside the mall
was peaceful and nondisruptive. For the reasons I give
below, I find that Daniel said there could be no handbilling
even on the parking lot, and I also find that the handbilling
was peaceful and nondisruptive.
The stipulations respecting this event read as follows
(GCX 3 at 3–4):
Respondent, acting through D. J. Daniel, on Novem-
ber 10, 1990, informed Union Agent James Herd that
he could not distribute the leaflets attached as Exhibit
A at the interior mall entrance to the Dillard’s retail
store.
Respondent, acting through Officer Dan Daniel, on
November 10, 1990, informed Union Agent James Herd
that he could distribute the leaflets attached as Exhibit
A at the exterior entrances to the mall parking area.
Respondent, acting through Tommy Wetuski, on or
about November 10, 1990, threatened to have Union
Agents James Herd and John Tohara arrested for crimi-
nal trespass if they did not cease distributing the leaflets
attached as Exhibit A at the interior mall entrance to
the Dillard’s retail store.
Respondent, acting through Tommy Wetuski, on No-
vember 10, 1990, informed Union Agent James Herd
that he could not handbill in the interior of the mall,
but that he could handbill at the exterior entrances.
Respondent, acting through Officer David Hyde, on
November 10, 1990, informed Union Agent James Herd
that he could distribute the leaflets attached as Exhibit
A at the exterior entrances, but could not handbill at the
interior mall entrance to the Dillard’s retail store.
Expanding on the stipulations, several witnesses testified
about the November 10 event. Principal witnesses are James
R. Herd Sr., the Union’s business agent and organizer;
Tommy E. Wetuski, JMB’s operations supervisor; and Pasa-
dena Police Officer David L. Hyde. Cynthia Elaine Garza de-
scribed her operation of the video camera, Benito Garza de-
scribed the peacefulness of the handbilling, and John Tohara
briefly described his own conduct. Tohara I have identified.
Benito Garza is an International representative for the United
Brotherhood of Carpenters (1:149), and Cynthia Elaine Garza
is his wife (1:42–43, 150). Thus, all six witnesses in the case
testified to some extent about this event.
Except when I name a specific witness, a composite of the
testimony and other evidence establishes that the November
10 event occurred as follows. Around 10:45 the morning of
November 10, Herd, the Garzas, and Tohara arrived at TSM.
Herd and Tohara took positions to handbill, Cynthia Garza
took her position to videotape the activity, and Benito Garza
assumed a position to observe. I have reviewed the video-
tape. As shown by the internal clock or timer on the video-
tape, Cynthia Garza started the videotape at 10:50 a.m.
As described earlier, several feet in front of Dillard’s inte-
rior mall entrance sits a concrete planter box. A trash can is
at each end. Dillard’s 20-foot entrance is formed by two
large brick support columns. A large brown cornice (promi-
nent in the principal photograph of the entrance, RX 1) dis-
plays Dillard’s name in large letters over the entrance. Herd
took his position several feet in front of the right (as one
faces the entrance from out in the mall) brick column, and
Tohara took a similar position in front of the left column.
983JMB PROPERTIES CO.
4 This includes Police Officer Hyde who testified that he observed
no violent or disruptive conduct (1:23).
Both men were standing in TSM’s main aisle and not on
property leased to Dillard’s.
Because of the planter and other structures in the center
of the aisle, shoppers walked on the sides of the aisle, pass-
ing Herd (the man in burgundy shorts) or Tohara. As the
shoppers passed, Herd or Tohara, depending on the side a
shopper was on, would extend one of the three handbills (de-
scribed earlier). If the shopper reached for and grasped the
handbill, the union agent released it. If not, the union agent
offered it to the next shopper.
Security guard D. J. Daniel, observing the union agents
enter TCM and head for Dillard’s, alerted management who
called the Pasadena police. By the video clock, security
guard Daniel approached Herd about 10:55 a.m. Herd testi-
fied that Daniel told him he could not handbill on TSM
property, and would have to do so at the street (1:133). Dan-
iel’s statement is recorded on the video film. The video clock
puts the time at 10:57 a.m. (GCXs 14, 12 at 2). Actually,
the audio is poor because of noise in the mall and the dis-
tance of the subjects from the camera. Daniel’s answer that
Herd could handbill at the street entrance is barely audible.
On the transcript, which Herd prepared, a second answer by
Daniel is rendered (GCX 12 at 2):
I’m saying you can’t do it on the mall property, this
mall, sidewalk, and parking lot.
The audio is too poor for me to understand most of the
words of that response by Daniel, although the context, with
Herd’s asking Daniel to confirm that he must go to the street
entrance, suggest that the transcript version is substantially
correct. Herd spoke louder than did Daniel.
Shortly after 11:40 a.m., after Operations Supervisor
Wetuski and Pasadena Police Officer Hyde had arrived,
events came to a conclusion. Officer Hyde told Herd that
Wetuski said that TSM management did not want the union
agents handbilling inside the mall. Hyde said Herd and the
others could handbill at the outside entrances to Dillard’s,
but that if Herd and the others did not leave the inside he
would arrest them for criminal trespass. Hyde’s testimony is
consistent with the incident report (GCX 11) which he filed
with the Pasadena Police Department (1:24, 38–39). To
Herd’s question, Wetuski confirmed that Herd and the others
could handbill at the exterior doors to Dillard’s on the mall
sidewalk. Herd said he would comply with the police order,
and that ended the event.
Wetuski testified that when he arrived on the scene there
were 4 or 5 police officers present, perhaps 30 to 40 shop-
pers entering and leaving the stores, including Dillard’s, at
that end of the mall (2:229, 251–253). The videofilm shows
all the area around Herd. On a few occasions the operator
showed the other side. The film shows only occasional shop-
pers walking by, and nothing like 30 to 40 shoppers in the
area at one time. Moreover, security guard Daniel’s security
report (GCX 6) for the November 10 event makes no men-
tion of any large group of persons (other than uniformed of-
ficers), and says nothing about any disruption caused by the
handbilling. The videofilm usually focuses on the handbilling
by James Herd. It shows no congregating by shoppers ac-
cepting or declining a handbill, no obstructing shoppers, and
no evidence of littering.
When he approached Herd, Wetuski testified, Wetuski
identified himself and gave Herd one of his business cards.
(The time shown on the videofilm is 11:41 a.m.) When
Wetuski began to explain JMB’s policy on handbilling, Herd
asked if he would step closer to the planter box (where Cyn-
thia Garza was situated with the video camera) so their con-
versation could be videotaped. ‘‘Sure,’’ Wetuski said. They
did so and Wetuski explained the policy, as I have described
(2:219, 223, 228, 240–242).
Wetuski testified that when they moved over to the plant-
er, there were no shoppers in that immediate area (2:242–
243). Later, apparently, shoppers asked him what was going
on, why were all the police officers present (2:228–229).
Herd confirms that when JMB representatives or police offi-
cers sought to engage him in conversation he did ask them
to move with him toward the video camera. His purpose in
this was to promote better sound and visual quality on the
videotape (2:264). My review of the videofilm discloses that
this occurred only at 11:42 a.m. (by the video clock) mo-
ments after Wetuski arrived. At 11:43 a.m. Police Officer
Hyde, who had been in conversation off to the left side,
stepped over to Herd and delivered his police ultimatum—
leave the mall or be arrested. Herd said he would comply
and the event ended.
That takes us to the videotape. The government’s primary
purpose in offering the videotape (GCX 14), with or without
the disputed transcript of portions of the audio, the General
Counsel asserts, is to show the peaceful nature of the
handbilling. JMB also favors receipt of the videotape, but ob-
jects to the transcript as incomplete and inaccurate (1:110–
113). Eventually I received in evidence both the videotape
and the partial transcript (2:270–271). There is no dispute the
transcript is incomplete. The poor audio renders a complete
transcript impossible. As to the material events, there is no
evidence of any errors of substance. Even so, because of the
poor audio quality of the video film, I cite the transcript only
in limited instances and then only as corroborative of Herd’s
testimony. As noted earlier, I have reviewed the videotape.
Observing that the handbilling shown on the videotape is
peaceful, and crediting the General Counsel’s witnesses in
that respect,4 I find that the Union’s handbilling on Novem-
ber 10, 1990, was peaceful and nonobstructive.
Any disruption in the normal Saturday scene in the area
in front of the interior mall entrance to Dillard’s at TSM was
caused, I find, by the congregation of about five uniformed
officers. As Wetuski testified, shoppers asked why all the po-
lice officers were present (2:228–229). Note that the shoppers
did not ask about the handbilling. Moreover, the police were
there because JMB, not the Union, had called them. Most of
the uniformed officers actually were JMB’s security guards.
An off-duty Pasadena Police officer was there as a security
guard for Dillard’s. Hyde was the only on-duty Pasadena Po-
lice officer at the scene.
On Saturday, November 17, Business Agent Herd
handbilled on the sidewalk at Dillard’s west entrance for
about an hour to around noon. During that time only 10 to
15 persons, including children, entered Dillard’s west door.
Herd selected the west entrance because it (of the outside
doors, presumably) afforded the best chance for shopper traf-
fic. This is so because most of the parking is nearby as is
one of the triangle entrances to the mall. Union member
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thomas Bannon assisted with the handbilling at the west en-
trance. Herd concedes that JMB did not interfere with the
Union’s handbilling on the sidewalk at Dillard’s west en-
trance. However, Herd testified, it is not practical for the
Union to cover all the outside entrances to TSM because the
Union does not have the members available to do so. At that
time the Union was handbilling seven other stores elsewhere.
(1:76–79, 122–124, 126, 128).
On November 17 the Garzas also were present, with Be-
nito Garza as an observer and Cynthia Garza present to oper-
ate the video camera (1:123–124, 128–129). Garza testified
that his mission was as an observer only (1:155–156). Of the
1200 members in the Union’s Local 550, Herd testified,
about 850 work while the others are retired. (1:142). Herd
testified that he has used union members for handbilling
(1:149). We know that from Tohara and from Herd’s brief
identification of Bannon. As described earlier, we know from
Tohara that the Union asks for volunteers to handbill without
pay.
At the hearing, Herd testified that the purpose for the
handbilling was to inform the general public that Dillard’s
was using contractors from out of town who do not pay into
health and welfare. ‘‘It was to give them the information and
let them decide whether they wanted to shop there or not.’’
(1:68, 118.) ‘‘We asked them [the public via the handbills]
not to patronize Dillard’s.’’ (1:68–69.) Asked what the Union
wanted Dillard’s to do, Herd testified: ‘‘Use our local people,
get some local contractors’’ from Houston or Texas, even if
they are nonunion contractors, ‘‘and help our economy.’’
(1:118.)
C. Procedural Rulings
1. Jencks issue
a. Facts
As earlier indicated, Police Officer Hyde is among those
who appear on the videofilm (GCX 14) which Cynthia Garza
recorded on Saturday, November 10, 1990. At the comple-
tion of the General Counsel’s direct examination of officer
Hyde, JMB, citing 29 CFR § 102.118, asked for production
of any prehearing statements by Hyde within the possession
of the General Counsel. When the Government asserted it
had none, JMB argued that the videotape came within the
regulation’s definition of a recorded oral statement. The Gen-
eral Counsel argued that the film did not meet the definition.
Agreeing with the Government, I denied JMB’s motion to
produce and its subsequent motion to strike the testimony of
Police Officer Hyde (1:25–37).
b. Discussion
The Board’s Jencks regulation, 29 CFR § 102.118(b)(1),
requires production of any ‘‘statement,’’ as later defined,
after a witness called by the General Counsel or a charging
party has testified in circumstances described by the regula-
tion. For background, see Jencks v. U.S., 353 U.S. 657
(1957); 18 U.S.C. § 3500; Ra-Rich Mfg. Corp., 121 NLRB
700 (1958). A ‘‘statement’’ is defined at 29 CFR
§ 102.118(d) to mean a signed, adopted, or approved written
statement or:
(2) a stenographic, mechanical, electrical, or other re-
cording, or a transcription thereof, which is a substan-
tially verbatim recital of an oral statement made by said
witness to an agent of the party obligated to produce
the statement and recorded contemporaneously with the
making of such oral statement.
It seems clear that ‘‘statement’’ means an account or de-
scription of an event, such account or description being made
to ‘‘an agent.’’ Here we do not have an account or descrip-
tion of an earlier event, but a moving picture of the event
itself. The moving picture film is evidence, not an account
of that evidence. Accordingly, I affirm my ruling, and I find
that the videotape was not producible under the Jencks regu-
lation, 29 CFR § 102.118(b), (d). As evidence, the videotape
may have been subject to production under a subpena duces
tecum, but apparently no such subpena was served on the
Union for this purpose.
The situation would be different had someone at the scene,
moments after the event ended, interviewed Police Officer
Hyde and, on videotape, asked him what had happened min-
utes earlier in his conversation with Business Agent Herd
and Operations Supervisor Wetuske. At that point any an-
swer from Hyde, by rendering an account of the earlier
event, would be a producible ‘‘statement.’’
Had Officer Hyde viewed the videofilm and orally told an
investigating Board agent, or counsel for the General Coun-
sel, that the sights and words in his conversation on the vid-
eotape were true and correct, one would think that such oral
adoption of an electronic picture story would suffice to
render the videotape producible even though the regulation
refers to adoption of a written statement. However, that pos-
sibility does not arise here because the General Counsel rep-
resents (1:27) that Hyde never reviewed the videotape.
2. JMB’s rejected Exhibit 16
After the parties had rested and closed their evidence,
JMB sought to introduce its Exhibit 16, an exhibit consisting
of certain property and store diagrams apparently received in
evidence in the trial of Case 10–CA–21677. The Board’s de-
cision in that case is reported as Red Food Stores, 296
NLRB 450 (1989). JMB asserts that the facts of that case are
very close to our facts and that the diagrams would be help-
ful here. The General Counsel objected on the basis of tardi-
ness, limited if any relevance, and prejudice without all the
other evidence from that case to explain the documents and
to put them in context.
For the reasons expressed by the General Counsel, I sus-
tained the Government’s objection. Stating that I would not
stand on any technicality respecting the stage of our case if
all that was involved was simply introducing an exhibit al-
ready litigated, and observing that JMB’s motion would re-
quire us to reopen the record to, in effect, litigate a second
case, one already litigated, I denied JMB’s motion to reopen
the record to introduce its Exhibit 16, saying that I would
be guided by the Board’s decision. I granted JMB’s motion
to place RX 16 in the rejected exhibits file. (2:272–279). By
motion dated May 31, 1991, JMB seeks to substitute cer-
tified copies of the diagrams for RX 16. Granting that unop-
posed motion, I have placed JMB’s motion and attachments
in the folder for Respondent’s rejected exhibits.
985JMB PROPERTIES CO.
D. Analysis and Conclusions
1. Legal principles
Decisions in shopping mall access cases such as this one
are governed by the Board’s analysis in Jean Country, 291
NLRB 11 (1988). In modifying its analytical approach in
these cases, the Board in Jean Country reviewed the applica-
ble decisions of the United States Supreme Court, particu-
larly NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1965),
and Hudgens v. NLRB, 424 U.S. 507 (1956).
The decisions make clear that the Union here had no con-
stitutional right to enter the Pasadena Town Square Mall and
distribute handbills at the interior mall entrance to the
Dillard’s department store there. The rights and obligations
of the parties here are dependent exclusively on the National
Labor Relations Act. When Section 7 rights conflict with pri-
vate rights, the Board’s task, as the Supreme Court declares,
is to accommodate the two ‘‘with as little destruction of one
as is consistent with the maintenance of the other.’’ Hudgens,
424 U.S. at 522, quoting from Babcock, 351 U.S. at 112.
Quoting Hudgens, the Board in Jean Country observed
that there is a ‘‘spectrum’’ of Section 7 rights and property
rights, and that the place of a particular right in that spec-
trum might affect the outcome of a case. Listing potential
factors to be assessed when balancing the three inter-
dependent categories of property rights, Section 7 rights, and
alternative means, the Board views the latter as ‘‘especially
significant in this balancing process.’’ Jean Country at 14.
However, ‘‘denial of access will more likely be found unlaw-
ful when property is open to the general public than when
a private character has been maintained.’’ Jean Country at
14.
Respecting burdens, the initial burden is on the party
claiming a property right to show that it has a property inter-
est. The General Counsel bears the initial burden to show
that without access to the property the one seeking to exer-
cise the Section 7 right (here the Union) has no reasonable
means of communicating with the audience that exercise of
that right entails. That is, based on objective considerations,
the General Counsel must show that reasonable effective al-
ternative means were unavailable in the circumstances. ‘‘We
note however that, generally, it will be the exceptional case
where the use of newspapers, radio, and television will be
feasible alternatives to direct contact.’’ Jean Country at 13.
2. Discussion
As the open-air-mall operator in Jean Country, JMB here
had a genuine interest in the TSM property. JMB is the agent
of the unidentified owner of TSM. That threshold interest es-
tablished, I turn now to examine the relative strengths of the
competing rights.
Consisting of over 90 retail stores, TSM is open daily to
the public. The commercial nature and purpose of the mall
property are clear. Public access is provided from two major
city streets into a large parking lot for motor vehicles. Al-
though the record gives no estimate of the average number
of daily or weekly shoppers, clearly the number is substan-
tial. A covered mall such as TSM is attractive to customers
because it provides shoppers protection from the elements
while they shop in air-conditioned comfort up and down the
stores abutting the large central aisle. It is readily apparent
that TSM has, and is intended to have, certain quasi-public
characteristics. These characteristics enhance the mall’s com-
mercial nature and purpose.
At the same time, however, the quasi-public traits tend to
lessen the private nature of the property, for it is apparent
that the public is extended a broad invitation to come on the
property, and not necessarily with the specific purpose of
purchasing a particular product or service. Jean Country at
16. Unlike Jean Country, however, here JMB has posted the
TSM property with notices to the public restricting access.
Also unlike Jean Country, JMB, making no exceptions to its
restriction policy, has never allowed fairs for arts and crafts
or solicitations by charities, or children selling candy. Users
of TSM’s community room are restricted to that room for
their meetings and activities.
The Union’s two handbillers were a reasonable number,
they did not interfere with the shoppers nor cause littering,
and their handbilling was peaceful and nondisruptive. The
Union’s handbilling message generally was area standards,
although in part the handbilling reflected an additional pur-
pose, that purpose being to organize the employees of OKI,
a contractor doing remodeling work for Dillard’s. However,
OKI was not doing any work at the TSM Dillard’s. Indeed,
there is no evidence that OKI was scheduled to do any work
at Dillard’s TSM store. (The Dodge Report information was
received for the limited purpose of showing the basis for the
Union’s course of action, not for the truth of the data. No
contention was made that the report was being offered gen-
erally, as a hearsay exception under FRE 803(17).)
OKI was working at three other Houston-area stores of
Dillard’s. Thus, shoppers at Dillard’s TSM store would not
see any remodeling work being done by OKI’s employees.
The handbills themselves make no reference to TSM, and in-
stead specifically name three other shopping malls in Hous-
ton, with the closest of those malls being at least 15 miles
away. The only connection with TSM, so far as shoppers
could learn from reading the handbills, is that Dillard’s is the
same name at all of the shopping malls, and that Dillard’s
has hired OKI at three malls over 15 miles away in Houston.
In short, the Dillard’s retail store at Pasadena TSM is a sec-
ondary employer to the Union’s labor dispute with OKI, and
the situs of the labor dispute is at least 15 miles from TSM.
As the Board declared in Jean Country, 291 NLRB at 12,
access to sites with only a remote connection to the labor
dispute is not automatic. Hardee’s Food Systems, 294 NLRB
642 (1989), enfd. 904 F.2d 715 (D.C. Cir. 1990).
Balancing the category of property rights and statutory
rights, it appears that the property right here ordinarily would
be relatively weak because of the quasi-public nature of the
shopping mall. However, as the property always has been
posted for use restricted mainly to shoppers (with only a lim-
ited and restricted exception for use of a meeting space), ex-
pressly prohibiting handbilling, and as JMB has never al-
lowed the interior aisles to TSM to be used for arts and
crafts, charities, or other nonshoppers, I find that the property
interest is relatively strong. By contrast, the Section 7 right
exercised here—area standards handbilling—is relatively
weak because it does not further a ‘‘core’’ purpose of the
Act. Red Food Stores, 296 NLRB 450 (1989). The Union’s
right is further weakened here because OKI was not working
at the Pasadena TSM Dillard’s, nor even scheduled to work
there so far as the evidence shows. Thus, the situs of the
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Union’s primary dispute was located at least 15 miles away
in Houston, as in Hardee’s Food Systems, supra.
Turning now to the third category, that of alternative
means, I note that eventually on November 10 the Union was
advised that it would be permitted to handbill on TSM’s
sidewalks at Dillard’s exterior doors. As if testing JMB on
this, the Union did just that, without interference from JMB,
a week later on November 17. Although that concessing by
JMB appears substantial, in practice it is of limited value to
the Union in comparision with the ability to handbill at the
interior mall entrance.
First, only two handbillers need be present to handbill
Dillard’s if they can be stationed at Dillard’s interior mall
entrance. This is so because, except for an undertermined
percentage of shoppers who enter Dillard’s exterior doors,
shop at Dillard’s, and leave through an exterior door, at least
a substantial number of Dillard’s shoppers enter the interior
mall entrance or walk from Dillard’s into the central aisle of
TSM by passing through that interior entrance.
But if the Union is required to remain out of the inside
mall and handbill at exterior doors only, the Union would
have to find enough volunteers to handbill at Dillard’s three
outside entrances. Added to those three volunteers (six if the
Union wanted to station the same number at the exterior en-
trances as at the interior entrance, as it did on November 17)
would be the volunteers necessary to staff the four triangle
doors plus the three exterior doors of Foley’s plus the exte-
rior door to Palais Royal.
Once the Union begins handbilling at the independent (tri-
angle) doors, the danger arises of enmeshing the customers
of neutrals to the labor dispute. This is particularily true re-
specting any handbilling at the exterior doors of Foley’s and
Palais Royal. The evidence does not clearly establish that
JMB would relax its restriction so as to permit the Union ac-
cess to the sidewalks in order to handbill against Dillard’s
at the exterior doors of Foley’s. Nevertheless, the Union
would need to handbill at Foley’s because the record shows
that some shoppers enter Foley’s, shop there and walk
through the mall to Dillard’s where they also shop. The
Union simply does not have the volunteers available to hand-
bill all the exterior entrances of TSM.
As for notices in the media, the record does not show
whether the Union considered such or what that expense
would be. The Houston area population is large. While it
may be assumed that most of TSM’s shoppers come from the
Pasadena area (the southeast side of Houston), that popu-
lation is still substantial. As shown by the 1991 Randy
McNally Road Atlas (pp. 1, 126), the December 31, 1986 es-
timated population of Pasadena alone is over 115,000. Tele-
vision at Houston is available. As the Board did in Jean
Country at 18 fn. 18, I conclude that delivery of the Union’s
message by mass media would be heavily expensive and
therefore not a reasonable alternative. Nevertheless, as the
Board notes, the test is one for ‘‘reasonable means of com-
munication, not the most effective means.’’ Hardee’s, supra.
Balancing the conflicting rights here, I shall dismiss the
complaint. JMB’s property interest is relatively strong, while
the Union’s Section 7 right is relatively weak. Because the
Union could handbill at the sidewalk entrances to most, per-
haps all, the Pasadena TSM, I conclude that the Union had
a reasonable means to engage in its protected activity. Thus,
impairment of the Section 7 right is less substantial than
would occur to JMB’s property interest if the Union were
granted access to the interior mall entrance to Dillard’s. Ac-
cordingly, I find that JMB did not violate Section 8(a)(1) of
the Act by prohibiting the Union from handbilling inside
TSM, by threatening to have the Pasadena police arrest the
Union’s representatives in order to enforce this exclusion,
and by causing the Pasadena police to come and warn Union
Representative Herd that he would be arrested for criminal
trespass unless the Union switched its handbilling to the
sidewalk entrances outside the building.
CONCLUSION OF LAW
By prohibiting the Union from peaceful handbilling pro-
tected by the Act at the interior mall entrance to the Dillard’s
retail store in Pasadena Town Square Mall, Pasadena, Texas,
and by threatening union representatives with police arrest
for engaging in such handbilling, Respondent JMB Properties
Company has not violated Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The complaint is dismissed.