Wild Oats Community Markets

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 179 (N.L.R.B. 2001)

WILD OATS COMMUNITY MARKETS 179
Wild Oats Markets, Inc. d/b/a Wild Oats Community
Markets and United Food and Commercial
Workers Union, Local 655, AFL–CIO, CLC.
Case 14–CA–24815
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On June 22, 1998, Administrative Law Judge David L.
Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering 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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
I. FACTS
The Respondent operates a natural foods grocery store
in Ladue, Missouri. The Respondent is one of several
tenants in the Lammert Center, a strip mall shopping
center owned by the 1861 Group, L.P. (owner), and
managed by Solon Gershman, Inc., Realtors (manager).
The owner and Respondent were parties to a lease
agreement, pursuant to which the Respondent was
granted the right to occupy and use the building in which
the Respondent operates its store, as well as an “appurte-
nant easement” and the nonexclusive right to use all of
the common areas of the Lammert Center, including the
parking lot and sidewalk in front of the Respondent’s
store.2 The lease agreement further provided that the
common areas of the Lammert Center would be subject
to the control and management of the owner.
Although the lease agreement additionally contained a
“no solicitation” policy—pursuant to which lessees of
the Lammert Center were to refrain from soliciting or
giving “permission to others to solicit or conduct opera-
tions in any manner in any of the parking, delivery, and
other Common Areas of the shopping center”—the Re-
spondent itself did not maintain a no-solicitation/no-
distribution policy. Indeed, as set forth in greater detail
in the judge’s decision, on numerous occasions the Re-
spondent had permitted various charitable, as well as for-
profit, organizations to set up displays and distribute lit-
erature both inside and outside the store.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Regarding the physical design of the Lammert Center premises, the
parties stipulated that a sidewalk runs along the front of the Respon-
dent’s store; immediately adjacent to the sidewalk in front of the store
is a designated “no parking” area. Behind the “no parking” area is a
driving lane, which is used by cars traveling among stores in the shop-
ping center; both the driving lane and the “no parking” area are part of
the adjacent parking lot, which is owned by the owner and used by the
various tenants of the shopping center.
On October 16, 1997,3 several nonemployee union rep-
resentatives, along with one part-time employee of the
Respondent, began peacefully picketing and distributing
literature4 to customers while standing and walking in the
“no parking” area in front of the Respondent’s store.
Shortly after the union representatives’ arrival, an agent
of the Respondent contacted the manager to report the
presence of the picketers and to inquire about the
owner’s policy regarding such picketing activity in the
owner’s parking lot. Subsequently, an agent of the man-
ager, George Marcher, accompanied by the Respondent’s
attorney, Fred Ricks, approached the union representa-
tives and asked them to move from the parking lot in
front of the Respondent’s store to the perimeter of the
Lammert Center, between the parking lot and the public
road. The union representatives asserted that they had
the right to continue their activity and, therefore, they
refused to move.
Thereafter, Marcher called the Ladue Police Depart-
ment to request that the police move the union represen-
tatives away from the owner’s parking lot. Members of
the Ladue Police Department arrived at the Lammert
Center and, pursuant to Marcher’s request,5 asked the
union representatives to move to the perimeter of the
shopping center. After they declined to move, the police
officers informed Marcher that, pursuant to the “Policy
for Trespassing Complaints During Labor Disputes” dis-
tributed to local police by the county prosecutor’s office,
they could take no further action on Marcher’s verbal
complaint unless the Union did not file an unfair labor
practice charge with the Board by 5 p.m. the next day.6
3 All dates hereafter are in 1997, unless otherwise indicated.
4 The handbills distributed by the union representatives referenced a
settlement agreement—which resolved unfair labor practice charges—
between the Respondent and the NLRB, and urged customers not to
shop at the Respondent’s store; the signs worn by the picketers read:
“Wild Oats Is Unfair To Employees.”
5 Lieutenant Baldwin, one of the officers who went to the Lammert
Center on October 16, testified that Ricks stated that Respondent was
not making any complaint, and that Ricks did not make any requests for
him, or the police department, to take any action.
6 The referenced policy further provided, inter alia, that if the picket-
ers who are the subject of a trespassing complaint file an unfair labor
practice charge by 5 p.m. on the day following the complaint, the police
should defer any action on the complaint until the NLRB makes a de-
336 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
Accordingly, as the Union filed unfair labor practice
charges7 the following day, the police department took
no further action with respect to Marcher’s oral com-
plaint. Similarly, neither the Respondent, the owner, nor
the manager took any further action with regard to the
union picketers/handbillers; accordingly, the union repre-
sentatives continued picketing almost daily after October
16.
II. THE JUDGE’S DECISION
The complaint in this case alleges that the Respondent
violated Section 8(a)(1) of the Act in attempting to cause
the removal of union representatives engaged in pro-
tected handbilling and picketing activity in the parking
lot in front of the Respondent’s store. The judge, citing
Food For Less, 318 NLRB 646 (1995), enfd. in relevant
part 95 F.3d 733 (8th Cir. 1996), found that the Respon-
dent did not possess a property interest sufficient to per-
mit it to exclude the nonemployee union representatives,
as the Respondent merely had an appurtenant easement
for the common areas surrounding its store, including the
parking lot area in which the picketing/handbilling oc-
curred. The judge further found that the Respondent’s
act of reporting the picketing/handbilling to the manager,
with the objective of having the manager/owner take
action to terminate the activity (i.e., to interfere with the
union activity), constituted a violation of Section 8(a)(1).
In so finding, the judge rejected the Respondent’s con-
tention that its communication to the manager/owner was
“free speech” protected by the First Amendment and
Section 8(c) of the Act. Finally, the judge determined
that, even if a finding of discrimination were necessary to
establish an 8(a)(1) violation on the part of the Respon-
dent, that requirement was satisfied. In that regard, the
judge—citing the monthly solicitations by charitable
organizations inside the Respondent’s store, together
with several outdoor solicitations and displays by, inter
alia, a local humane society, a circus, high school stu-
dents, and several for-profit organizations—rejected the

termination concerning the picketers’ right to enter the property; alter-
natively, if the picketers fail to file an unfair labor practice charge, the
police should treat the complaint the same as any other criminal tres-
passing complaint.
7 In addition to the instant unfair labor practice charge, the Union
filed a charge against the owner and the manager, alleging that they
violated Sec. 8(a)(1) by causing the union representatives to be threat-
ened with arrest for trespass for engaging in peaceful picketing activi-
ties. On January 22, 1998, the Regional Director refused to issue a
complaint against the owner and manager, based on the facts that (1)
the owner had a property interest in the common areas where the union
representatives were picketing/handbilling; (2) the owner maintained a
valid no-solicitation/no-distribution rule; (3) there was no evidence that
the owner discriminatorily enforced its no-solicitation/no-distribution
rule; and (4) there was no evidence that the Union lacked a reasonable
alternative means of conveying its message.
Respondent’s contention that the occasions on which it
previously had permitted solicitations were “isolated and
beneficient.”
Analysis
It is well established that an employer may properly
prohibit solicitation/distribution by nonemployee union
representatives on its property if reasonable efforts by the
union through other available channels of communica-
tion will enable it to convey its message, and if the em-
ployer’s prohibition does not discriminate against the
union by permitting others to solicit/distribute. See
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956). This
precedent, however, presupposes that the employer at
issue possesses a property interest entitling it to exclude
other individuals from that property. Therefore, in situa-
tions involving a purported conflict between the exercise
of rights guaranteed by Section 7 of the Act and private
property rights, an employer charged with a denial of
union access to its property must meet a threshold burden
of establishing that it had, at the time it expelled the un-
ion representatives, a property interest that entitled it to
exclude individuals from the property. If it fails to do so,
there is no actual conflict between private property rights
and Section 7 rights, and the employer’s actions there-
fore will be found violative of Section 8(a)(1) of the Act.
See Indio Grocery Outlet, 323 NLRB 1138, 1141–1142
(1997), enfd. 187 F.3d 1080 (9th Cir. 1999), cert. denied
529 U.S. 1098 (2000); Food For Less, supra at 649–650;
Bristol Farms, Inc., 311 NLRB 437, 438–439 (1993). In
determining the character of an employer’s property in-
terest, the Board examines relevant record evidence—
including the language of a lease or other pertinent
agreement—in conjunction with the law of the state in
which the property is located. See Food For Less, supra,
at 649.
Applying these principles to the facts of this case, we
conclude that the Respondent—by initiating a chain of
events that culminated in the attempted removal of non-
employee union representatives engaged in lawful, pro-
tected activity8 from the parking area in front of the Re-
spondent’s store—interfered with the Section 7 rights of
employees. The judge found, and we agree for the rea-
sons set forth by him, that the Respondent did not pos-
sess a property interest that entitled it to exclude the non-
employee union representatives from the parking lot in
which they were handbilling and picketing.9 No party
8 No party contended that the union representatives’ handbilling and
picketing was unlawful or unprotected under Sec. 7 of the Act.
9 As found by the judge, the Respondent’s lease agreement with the
owner merely granted the Respondent an appurtenant easement and the
nonexclusive right to use the common areas of the Lammert Center,
WILD OATS COMMUNITY MARKETS 181
has excepted to the judge’s finding in this regard. In
light of the Respondent’s lack of a sufficient property
interest, it is unnecessary to engage in an analysis apply-
ing Babcock & Wilcox and Lechmere (i.e., to determine
whether the union representatives had other reasonable
alternative means of communication and whether the
Respondent discriminatorily applied a no-solicitation
policy). Accordingly, we do not pass on the Respon-
dent’s exception that the judge erred in finding that the
instances of prior solicitations permitted by the Respon-
dent at its store were not “isolated and beneficient”—
such that the attempted removal of the union representa-
tives reflected a discriminatory application of any pur-
ported no-solicitation policy of the Respondent.
Although the Respondent concedes that it did not have
a property interest entitling it to exclude the union repre-
sentatives, the Respondent excepts to the judge’s conclu-
sion that it violated Section 8(a)(1), arguing that the Re-
spondent itself did not expel or attempt to expel the indi-
viduals from the property. Specifically, the Respondent
asserts that, upon learning of the picketers/handbillers’
presence, it merely phoned the manager to inquire about
the owner’s policy with respect to the performance of
such activity at the shopping center; it did not call the
police, or ask the manager to call the police or otherwise
take any action against the picketers/handbillers. The
Respondent emphasizes that Lieutenant Baldwin of the
Ladue Police Department testified that the Respondent
never lodged a complaint or asked the police to take any
action with respect to the picketers/handbillers.
Thus, the Respondent contends and the dissent finds
that the Respondent did not take any direct action in fur-
therance of the removal of the union representatives from
the property or explicitly request that another party expel
them.
We agree with the judge that the Respondent’s actions
constituted an indirect attempt to expel the union repre-
sentatives and, consequently, constituted interference
with employee Section 7 rights. It is undisputed that the
lease agreement between the Respondent and the owner
explicitly set forth the owner’s policy concerning solici-
tation. Accordingly, given the Respondent’s presumed
prior knowledge of the owner’s no-solicitation policy, it
is highly unlikely that the purpose of the Respondent’s
phone call to the manager was simply to educate itself
concerning such policy, as the Respondent contends.
Rather, the more plausible explanation is that the Re-
spondent anticipated that the manager/owner would take

which specifically included the parking lot and sidewalk in front of the
Respondent’s store. See Food For Less, supra, 318 NLRB at 649 (dis-
cussing the limited property interest granted to the holder of a nonex-
clusive easement under Missouri law).
some action toward removal of the picketers/handbillers
upon being alerted of their presence. Additionally, as
noted by the judge, numerous acts of solicitation/dis-
tribution by various nonunion organizations previously
had taken place in and around the Respondent’s store, yet
the Respondent had never phoned the manager to report
the presence of the organizations or inquire about the
owner’s policy concerning such activity.10 The record
evidence fully supports the judge’s finding that the “Re-
spondent’s contacting the property owner about the pick-
eting and handbilling was an implied . . . request for the
property owner to do something. That something, inel-
uctably, was a call to the police in an attempt to get the
Union’s lawful picketing and handbilling activities
stopped.”
It is undisputed that the Respondent’s counsel accom-
panied the manager’s representative, George Marcher,
when he approached the union representatives and re-
quested that they move to the perimeter of the shopping
center and, additionally, when Marcher requested the
police to remove the individuals from the property. Al-
though the Respondent’s counsel did not speak to the
union representatives or police, there is no explanation
for his presence on the property at the time of those
events; thus, we find that the judge properly inferred that
the purpose of his presence was to oversee the removal
of the picketers/handbillers.
It is beyond cavil that had the Respondent directly or-
dered the union representatives to cease picketing and
vacate the premises or, alternatively, directly requested
the police to remove the union representatives, the Re-
spondent would have engaged in unlawful interference
with employee Section 7 rights. See Indio Grocery Out-
let, supra at 1142; Bristol Farms, supra at 439; Giant
Food Stores, 295 NLRB 330, 332–333 (1989). It would
be anomalous, therefore, to permit the Respondent to
accomplish the same objective by indirect means—to
engage in conduct that has the intended and foreseeable
consequence of interfering with employee Section 7
rights. Indeed, the Board in other contexts has indicated
its willingness to hold employers responsible for viola-
tions of the Act that are the proximate and foreseeable
result of the employer’s action. See generally Sure-Tan,
Inc. v. NLRB, 467 U.S. 883 (1984) (holding that an em-
ployer violated Sec. 8(a)(3) when—after the union pre-
vailed in a representation election—it sent a letter to the
10 Thus, any contention by the Respondent that its phone call to the
manager merely constituted the fulfillment of an implicit obligation to
notify the owner of the solicitation activity on the property—by virtue
of the no-solicitation provision in its lease agreement—is belied by the
fact that the Respondent failed to so notify the manager/owner on any
of the other numerous occasions on which such activity occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
INS requesting that the agency check the status of sev-
eral specified employees, with the proximate and fore-
seeable result that the employees at issue were deported
or voluntarily left the country as a result of their status as
undocumented aliens).11
For all the foregoing reasons, we find that the Respon-
dent’s phone call to the manager reflected an implicit
request that the manager or owner take some action to
remove the nonemployee union representatives from the
property and, accordingly, constituted interference with
employee Section 7 rights.
Furthermore, we find unavailing the Respondent’s as-
sertion that its communication to the manager constituted
“free speech” protected both by the first amendment and
Section 8(c) of the Act and, as such, cannot serve as the
basis of an unfair labor practice finding. The Respondent
cites no authority to support its contention. With regard
to the Respondent’s first amendment claim, it is axio-
matic that various restrictions are placed on an individ-
ual’s or employer’s speech to the extent that the speech
conflicts with, or infringes upon, other established rights.
See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575,
617–619 (1969). Within the context of the NLRA, an
employer statement evidencing a “threat of retaliation
based on misrepresentation and coercion [is] without the
protection of the first amendment.” Id. at 618. Although
an employer, as with any individual, enjoys the freedom
of speech guaranteed by the first amendment, the Su-
preme Court has made clear that

Any assessment of the precise scope of employer
expression, of course, must be made in the context
of its labor relations setting. Thus, an employer’s
rights cannot outweigh the equal rights of the em-

11 Our dissenting colleague dismisses the Sure-Tan case as irrele-
vant, since the facts presented by that case are not identical to those in
the instant case. Although Sure-Tan admittedly involved a different
factual context, the employer’s course of conduct (and resulting indirect
violation of the Act) in that case is distinctly analogous to the situation
here. As in this case, the respondent in Sure-Tan caused a third party to
take action that restrained, interfered with, or retaliated against the
exercise of Sec. 7 rights (i.e., the investigation of the legal status of
various employees), with the foreseeable consequence being the “con-
structive discharge” of the employees at issue (through the volun-
tary/involuntary departure of such individuals from the country and,
accordingly, departure from the employer’s payroll). As it would have
been a violation of the Act for the employer in Sure-Tan to itself dis-
charge the employees, the Board and Court found it reasonable to hold
the employer responsible for its accomplishment of the same result
through indirect means. As in Sure-Tan, the Respondent here should
be held accountable for the foreseeable result of its conduct in causing a
third party to interfere with Sec 7 rights through the removal of the
picketers/handbillers from the property.
ployees to associate freely,[12] as those rights are
embodied in § 7 and protected by § 8(a)(1) and the
proviso to § 8(c).

Id. at 617.
It is clear that had the Respondent directly asked the
union representatives to leave, or called the police to
request their removal, the Board would have found the
Respondent in violation of Section 8(a)(1), as such em-
ployer “speech” would violate employee rights protected
by the Act. Accordingly, it would be anomalous to ac-
cord the Respondent’s communication of the same mes-
sage greater First Amendment protection simply because
the Respondent sought to accomplish indirectly that
which it was prohibited from doing directly.
Section 8(c) of the Act does not afford the Respon-
dent’s communication any greater protection. Indeed,
Section 8(c) was enacted primarily to emphasize that
although the Act placed some limitations on employer
speech, it did not completely abolish the free speech
rights guaranteed by the First Amendment. See Gissel,
supra, at 617; 1 Legis. History 429 (LMRA 1947). Spe-
cifically, the legislative history of the Taft-Hartley
amendments indicates that Section 8(c) was enacted for
the principal purpose of protecting employers’ rights to
express their views or opinions regarding unions and
union organization to their employees. See 1 Legis. His-
tory 429, 959 (LMRA 1947); NLRB v. Overnite Trans-
portation Co., 938 F.2d 815, 819 (7th Cir. 1991), enfg.
296 NLRB 669 (1989). The Respondent here was nei-
ther expressing views or opinions, nor directing its mes-
sage to employees; rather, the Respondent conveyed to
the property manager an implicit request that the man-
ager engage in action that would interfere with employee
rights guaranteed by the Act.
Having rejected the Respondent’s claim that its com-
munication with the manager constituted “free speech”
protected by the First Amendment or Section 8(c) of the
Act, and having found that such communication had the
foreseeable and intended consequence that the manager
would take action in furtherance of the removal of the
nonemployee union representatives from the property,
we find that the Respondent engaged in interference with
employee Section 7 rights. Accordingly, we affirm the
judge’s conclusion that the Respondent violated Section
8(a)(1) of the Act.13
12 Protection of employee freedom of association (as well as the right
to self-organization) is one of the fundamental principles upon which
the Act is premised. See 29 U.S.C. § 151.
13 We additionally affirm the judge’s finding that the Respondent—
through its posted notice and oral communications with employees—
did not fully remedy its unlawful conduct, such that a remedial order is
unnecessary. These measures provided assurances that the employees
WILD OATS COMMUNITY MARKETS 183
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge and
orders that the Respondent, Wild Oats Markets, Inc.
d/b/a Wild Oats Community Markets, Ladue, Missouri,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified below.
Substitute the following notice for that of the adminis-
trative law judge.

CHAIRMAN HURTGEN, dissenting.
Respondent is a tenant in a strip-type shopping mall.
Respondent does not except to the judge’s finding that
the area in which the Union’s activity occurred (the park-
ing lot) was within the control of the mall owner, and
was not within the control of Respondent. Thus, Re-
spondent could not take steps to oust the picketer-
handbillers (pickets) from that area.
However, Respondent did not do so. Respondent took
the reasonable step of calling the owner-manager, i.e.,
the party who had control over the area.1 Respondent
asked the owner what the owner’s policy was. The
owner concluded that the policy was that the pickets
should be removed. The owner then told the pickets to
leave. When they refused to do so, the owner called the
police, and asked that the police remove the pickets. The
police ultimately decided not to remove the pickets and
they therefore remained.
In these circumstances, it is clear that the Respondent
simply went to the owner who had control of the prop-
erty, and the owner then took the action.2 I recognize
that Respondent’s agent was present when the owner
requested the pickets to leave and requested the police to
take action. However, there is no evidence that Respon-
dent did or said anything during these conversations.
My colleagues say that Respondent set in motion a
chain of events that led the owner to act. Concededly,
but for the Respondent’s phone call to the owner, the
owner would not have known the facts which prompted
it to act. But, this is not to say that Respondent is re-
sponsible for the owner’s action. Respondent did not ask
for any action. Similarly, my colleagues say that Re-
spondent anticipated that the owner would take steps to

themselves could engage in Sec. 7 activity, but not the nonemployee
representatives against whom the Respondent had taken action. See
Broyhill Co., 260 NLRB 1366 (1982); Passavant Memorial Area Hos-
pital, 237 NLRB 138 (1978).

1 Since the owner-manager was the agent of the owner, I have re-
ferred to that party as the owner.
2 The property owner had the right to take steps to oust the union
representatives (see Lechmere, 502 U.S. 527 (1992)), and no complaint
has been filed against the owner. A charge was filed against the owner
and manager, and it was dismissed.
remove the union agents. Assuming arguendo that this is
so, this is not to say that Respondent is responsible for
those acts.
Sure-Tan v. NLRB, 467 U.S. 883 is clearly different.
In that case, the respondent called the government au-
thorities (INS) and asked them to act. In the instant case,
the Respondent did not do so. The owner did so, and
there is no suggestion that this was unlawful.3 In short,
Respondent did not cause the public authorities to take
action. It posed a question to the owner, and the owner
contacted the public authorities.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT inform the owner of the Lammert
Center about any lawful picketing or handbilling activi-
ties by United Food and Commercial Workers Union,
Local 655, AFL–CIO, CLC, where an object of so in-
forming the owner is to interfere with such activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

WILD OATS MARKETS, INC. D/B/A WILD
OATS COMMUNITY MARKETS

Lucinda L. Flynn, Esq., for the General Counsel.
Fred A. Ricks Jr. and Daniel Begian, Esqs., of St. Louis, Missouri, for the Respondent.
Karl Sauber, Esq., of St. Louis, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. The hearing in this matter under the Na-
tional Labor Relations Act (the Act) was conducted before me in St. Louis, Missouri, on March
17, 1998. On October 17, 1997,1 United Food and Commercial Workers Union, Local 655,
AFL–CIO, CLC (the Union) filed a charge under the Act against Wild Oats Markets, Inc., d/b/a
3 See fn. 2, supra.
1 All dates mentioned are in 1997, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
Wild Oats Community Markets (the Respondent). On the basis of that charge, a complaint was
issued by the General Counsel alleging that, in violation of Section 8(a)(1) of the Act, Respon-
dent, on or about October 16, discriminatorily attempted to cause individuals acting in sympa-
thy with the Union to be removed from public areas in front of Respondent’s retail store in
Ladue, Missouri, because those individuals were picketing and handbilling on behalf of the
Union. The Respondent admits that the National Labor Relations Board (the Board) has juris-
diction of this matter, but it denies the commission of any unfair labor practices.
Upon certain stipulations and testimony and exhibits entered
at trial, and upon my observations of the demeanor of the wit-
nesses,2 and after consideration of the briefs that have been
filed, I make the following findings of fact and conclusions of
law.
At the hearing the parties entered into the following written
stipulation.3
STIPULATION OF FACTS
IT IS HEREBY STIPULATED AND AGREED by
and between United Food and Commercial Workers Un-
ion, Local 655, AFL–CIO, CLC, here called the Union;
Wild Oats Markets, Inc. d/b/a Wild Oats Community
Markets, here called Respondent; and the General Counsel
of the National Labor Relations Board as follows:
I. JURISDICTION
1. Respondent is engaged in the retail sale of natural
foods and related products at its place of business in La-
due, Missouri. Jurisdiction of the National Labor Relations
Board, herein called the Board, has been admitted in the
pleadings.
2. At all times material, Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
3. The Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
4. Respondent operates a natural foods grocery store in
Ladue, Missouri, situated in a strip mall shopping center
known as the Lammert Center, here called the Store.
5. The Lammert Center is located at the corner of La-
due Road and Gay Avenue in Ladue, Missouri. Ladue is a
municipality in St. Louis County, Missouri.
6. At all material times herein, the Store’s employees
have not been represented by a labor organization.
7. The Lammert Center is owned by The 1861 Group,
L.P.[,] here called the Owner.
8. The Lammert Center is managed for the Owner by
Solon Gershman[,] Inc., Realtors, here called the Manager.

2 Credibility resolutions are based on the demeanor of witnesses and
any other factor that I may mention.
3 The text of this stipulation has been electronically transferred;
therefore, except for bracketed insertions, all wording, capitalizations,
and punctuation are original.
B. The Respondent’s Store
1. The Physical Layout
9. The Store is one tenant of a multi-tenant strip mall
known as the Lammert Center.
10. The Lammert Center is accessible to customers
from a parking lot shared by the Store and other tenant
stores in the Lammert Center. There is also a sidewalk
immediately in front of the Respondent’s Store.
11. There is an enclosed foyer at the front of the Store.
Doors on either side of this foyer serve as the entrance and
exit for the Store’s customers.
12. A sidewalk runs along the front of the Store, and in
front of the foyer. Immediately in front of the sidewalk on
both sides of the foyer is a parking lot containing a few
parking spaces directly in front of the store. The first few
feet of the parking lot adjacent to the sidewalk in front of
the foyer is designated and marked off as a “no parking”
area. A survey map of the Lammert Center is attached as
Exhibit 1.
13. Behind the parking spaces directly in front of the
Store and the other stores is a driving lane which is part of
the parking lot, used by cars traveling to and from stores in
the shopping center including Respondent’s Store. The
driving lane and parking lot are made of asphalt.
14. Running parallel to the shopping center, and adja-
cent to Ladue Road, is a public sidewalk, approximately
ninety (90) feet from the front of Respondent’s store.
15. Inside the Store’s foyer are a public telephone, an
ATM money machine, and a general bulletin board with
general notices posted such as cars and homes for sale.
16. As part of the record, the parties have attached the
following exhibits identified as follows: [Photographs that
are the stipulations exhibits two through six are described.]
2. Respondent’s Interest in the Property
17. The Lammert Center in which Respondent’s store
is located is owned by the Owner.
18. The parking lot in front of the Respondent’s store
is owned by the Owner.
19. Respondent and the Owner entered into a lease.
The lease was in full force and in effect on October 16,
1997. A copy of the lease is attached as Exhibit 7 and
made a part hereof.
20. Section 2.2 of the lease grants to Respondent “an
appurtenant easement” for all of the common areas, in-
cluding the parking lot and the sidewalk in front of the
Store.
21. Section 15.1 of the lease grants to Respondent the
“non-exclusive” right to use the common areas, including
the parking lot and the sidewalk in front of the Store.
22. Section 15.2 of the lease provides, in pertinent part,
“The Common Areas shall be subject to the control and
management of the Lessor.”
3. No-Solicitation Policy
23. At all times material herein, the Respondent has
not maintained a no-solicitation [or] distribution policy.
WILD OATS COMMUNITY MARKETS 185
24. At all times material herein, the Owner had a writ-
ten “No solicitation” policy in its lease with the Respon-
dent which provided: “Lessee shall not solicit or give per-
mission to others to solicit or conduct operations in any
manner in any of the parking, delivery and other Common
Areas of the shopping center, other than deliveries.”
25. Since about August 1, 1996, Respondent has al-
lowed different charitable organizations to set up displays
and distribute literature inside the Ladue, Missouri, store
once each month, with the charitable organizations receiv-
ing 5 percent of that days profits. These monthly charita-
ble events are called 5% Days. A list of the date and name
of the participating charity for each 5% Day is set forth be-
low.
LIST OF 5% CHARITY EVENTS

Date Name of Charity
8/21/96 Children’s Foundation
9/18/96 Earthways
10/16/96 Animal Protective Association
11/20/96 Redevelopment Opportunities For Women
12/18/96 Places For People
1/22/97 Child Haven
2/19/97 Our Little Haven
3/19/97 Cancer Support Center
4/23/97 Circus Flora
5/07/97 Humane Society of Missouri
6/18/97 American Lung Association of Eastern
Missouri
7/16/97 Youth Emergency Services
8/20/97 St. Louis Area Food Bank
9/17/97 Missouri Humanities Council
10/15/97 Family Support Network
11/12/97 Wild At Heart Foundation and Save Amer-
ica’s Forests
12/17/97 Life Crisis Center
1/24/98 Shining Rivers

26. On two isolated occasions, two charitable groups
briefly extended their activities onto the sidewalk or park-
ing lot in front of the store on a 5% day. These two groups
were Circus Flora and the Humane Society which had
animals that were not allowed inside the store.
27. For part of the day on April 23, 1997, Respondent
allowed Circus Flora to post a banner outside of Respon-
dent’s store announcing a performance of the Circus Flora.
A picture of this Circus Flora banner is attached as Exhibit
8 and made a part hereof.
28. On April 23, 1997, the Respondent allowed several
of the Circus Flora artists to perform in the parking lot in
front of Respondent’s store for approximately 30 minutes.
Photographs of the Circus Flora artists performing in front
of the Respondent’s store in the “no parking” area are at-
tached as Exhibits 9, 10, 11 and 12 and made a part hereof.
29. On April 23, 1997, Respondent allowed Circus
Flora to distribute literature inside the store at a display ta-
ble. A photograph of the Circus Flora display publicizing
Circus Flora inside the Respondent’s store is attached as
Exhibit 13 and made a part hereof. A copy of the literature
distributed by Circus Flora is attached as Exhibits 14, 15,
and 16 and made a part hereof.
30. Respondent contacted neither the Owner nor the
Manager about the presence of either the Humane Society
or Circus Flora, on the parking lot in front of Respondent’s
Store.
31. Respondent did not contact the Owner or the Man-
ager about the presence of charitable organizations al-
lowed to set up displays inside the Respondent’s Store
once a month for the 5% Day event.
4. Events
32. On October 16, 1997, at about 11 a.m., individuals,
all non-employees of Respondent except one current part
time employee of Respondent, peacefully picketed and
distributed literature to customers while standing and
walking in the “no parking” area of the parking lot in front
of the Respondent’s store. A photograph of picketers who
were also distributing literature in front of the Respon-
dent’s store is attached as Exhibit 17 and made a part
thereof.
33. The picketers wore signs which read, “Wild Oats Is
Unfair To Employees.” A photograph of the signs worn by
the picketers is attached as Exhibit 18 and made a part
hereof.
34. The Union’s picketers distributed two leaflets, one
which concerned a recent settlement agreement between
the Respondent and the NLRB and urged customers not to
shop at Respondent’s store, and the other one which pro-
vided customers with a list of alternative natural food
stores where they could shop. Copies of the two handbills
are attached as Exhibits 19 and 20, and are made a part
hereof.
35. On October 16, 1997, at shortly after 11 a.m., an
agent of Respondent contacted the Manager on behalf of
Respondent to report the presence of the picketers and to
inquire about the Owner’s policy about such picketing ac-
tivities on the Owner’s parking lot.
36. On October 16, 1997, after being advised of the
presence of the picketers by the Respondent, the Manager
went to the Lammert Center and asked the picketers to
move away from the parking lot directly in front of the
Respondent’s store to the perimeter of the Lammert Cen-
ter, between the parking lot and Ladue Road. From the
Store’s foyer to the south edge of the parking lot is a dis-
tance of approximately ninety (90) feet. The Union’s pick-
eters refused the Managers request to move.
37. On October 16, 1997, after this discussion between
the Manager and the handbillers, the Manager called the
Ladue Police Department and requested that the police ask
the picketers to move away from the parking lot and side-
walk in front of Respondent’s store to the perimeter of the
Lammert Center, between the parking lot and Ladue Road.
The Manager also made a verbal complaint to the Police
Department regarding the handbillers.
38. On October 16, 1997, at the Manager’s request, a
Ladue police officer asked the Union’s picketers to move
to the Lammert Center perimeter adjacent to Ladue Road.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
The picketers refused to move. Since October 16, 1997,
the Ladue Police have taken no further actions concerning
the Union’s picketers. The Ladue Police gave the Man-
ager[,] and had previously given the Union[,] a copy of a
document entitled “Policy For Trespassing Complaints
During Labor Disputes.” A copy of this Policy is attached
as Exhibit 21, and made a part hereof. The Ladue Police
Department told the Union and the Manager that the La-
due Police Department planned to follow this written pol-
icy.
39. On October 23, 1997, the Manager, on behalf of
the Owner, sent the Union a letter clarifying that only the
non-employee picketers had to move to the public areas. A
copy of this letter is attached as Exhibit 22 and made a
part hereof.
40. Since October 16, 1997, neither the Owner, the
Manager nor the Respondent have taken any further ac-
tions concerning the Union’s pickets. Since October 16,
1997, the Manager has never withdrawn its complaint to
the Ladue Police and has never requested that the Ladue
Police take any further action concerning the Union’s
pickets.
41. Since October 16, 1997, the Union’s picketers have
picketed and distributed leaflets in front of Respondent’s
store almost daily.
42. On or about October 22, 1997, Respondent posted
a notice to its staff members, employees, advising them
that each employee has the right to participate in picketing
or handbilling anywhere outside Respondent’s store. This
notice advised Respondent’s employees that Respondent
had not and will not discipline, discharge or retaliate
against any Wild Oats employee for picketing or handbill-
ing. A copy of this notice to staff members is attached,
marked as Exhibit 23.
43. Since October 16, 1997, one of Respondent’s part
time employees has picketed periodically in the parking
lot area in front of Respondent’s store. Respondent has
never disciplined, discharged or threatened this part time
employee concerning her periodic picketing and distribut-
ing of literature for the Union. All other picketers have
been non-employees of Respondent.
44. On or about October 17, 1997, the Union filed un-
fair labor practice charge number 14-CA24816 against the
Owner and the Manager. A copy of this unfair labor prac-
tice charge is attached as Exhibit 24. By letter dated Janu-
ary 22, 1998, the National Labor Relations Board refused
to issue a complaint against the Owner and the Manager
finding the charge against the Owner and Manager to be
without merit. A copy of this January 22, 1998, letter is at-
tached marked Exhibit 25.
45. On or about February 27, 1998, the American Red
Cross conducted a blood drive in front of Respondent’s
store in the “no parking” area for several hours. Respon-
dent did not object to the American Red Cross conducting
this blood drive in the parking lot. Photographs of the Red
Cross Blood Mobile in front of the Respondent’s store are
attached as Exhibits 26, 27, and 28 and made a part hereof.
IT IS FURTHER STIPULATED AND AGREED that
this stipulation is made without prejudice to any objection
that any party may have as to the materiality or relevancy
of any facts stated herein. [Signatures]

The “agent” referred to in paragraph 35 was not otherwise identified.
Ladue is a community of about 8000 people in St. Louis County. The attachment to the
stipulation that is numbered “Exhibit 21” (the “Policy for Trespassing Complaints During
Labor Disputes”) is a publication of instructions to local police that was issued by St. Louis
Countys prosecuting attorney. At several places the publication (the County prosecutors policy)
makes clear that it is to apply only to cases of alleged criminal trespass complaints that concern
only peaceful activities. The County prosecutor’s policy further states in relevant part:

4. Advise the complaining witness that the NLRB must
make the final determination whether the pickets have the
right to enter and remain on private property for their
stated purpose. Advise the person in charge of the pickets
of the identity of the person/company filing the trespassing
complaint and that the union has until 5:00 p.m. of the
next Federal business day following the complaint to file
an unfair labor practice charge with the NLRB. . . .
5. If the pickets produce the NLRB charge, the police
should defer any action on a criminal trespassing com-
plaint until the NLRB rules on the pickets right to enter
and remain on private property.
6. If the pickets fail to file the NLRB charge by the
stated deadline, the police should treat the complaint as
they would any other criminal trespassing complaint.
7. If the NLRB rules in favor of the pickets, the police
should take no further action on a criminal trespassing
complaint. If the NLRB rules against the pickets, the com-
plaint should be treated as any other criminal trespassing
complaint.

The first stipulated handbill that is being distributed by the Union states that Respondent “is
not wild about obeying the law,” and then it recites that Respondent had entered a settlement
agreeing not to engage in certain listed unfair labor practices. Then follow a listing of benefits
that the Union had “tried” to secure for Respondent’s employees, an appeal to customers to
shop elsewhere, and a disclaimer that there was any objective of causing any work stoppages or
interference with deliveries. The handbills use of the word “tried” (past tense) was deliberate;
the Union has disclaimed interest in representing any of Respondent’s employees according to
the testimony of the Union’s representative in charge of organizing, James Dougherty. The
second stipulated handbill is a listing of other stores where customers might shop instead of at
Respondent’s store.
According to his letter of January 22, 1998, the Regional Director’s dismissal of the Un-
ion’s charge against the property owner and manager was based on the facts that: (1) the
property owner had an interest, as owner, in the area where the picketing and handbilling was
conducted; (2) the property owner had valid no-solicitation and no-distribution rules; (3) there
was no evidence that the property owner discriminatorily enforced those rules; and (4) the
investigation had failed to establish that the Union “lacked a reasonable alternative means of
conveying its message.”
Testimony Offered by General Counsel and Charging Party
Union Representative Dougherty testified that he has been in charge of the picketing and
handbilling at Respondent’s store since it began on October 16. On October 15, Dougherty met
with Police Lieutenant William Baldwin of the Ladue police department; at that time Dough-
erty told Baldwin what the Union intended to do, and he gave to Baldwin a copy of the county
prosecutor’s policy.
Dougherty further testified that on October 16, soon after the picketing and handbilling be-
gan, George Marcher, the manager of the Lammert Center, approached him on the sidewalk
WILD OATS COMMUNITY MARKETS 187
next to the store and asked that the Union move the picketing and handbilling to the perimeter
of the lot. With Marcher at the time was Fred Ricks, counsel for Respondent; Dougherty did not
know who Ricks was at the time. Dougherty told Marcher that he had already discussed the
matter with the Union’s attorney and the Ladue police, that he believed that the Union had a
right to continue its activities in the area immediately in front of Respondent’s store, and that
the Union would continue to act as it was. At that, Marcher and Ricks turned and left, and the
Union continued its picketing and handbilling as it had been doing before.4 Dougherty further
testified that Ricks said nothing during this confrontation with Marcher and that he learned
Ricks name only by asking Ricks as Ricks and Marcher began to walk away from him. (Neither
Ricks nor Marcher testified.)
Dougherty further testified that a police car arrived shortly after Marcher and Ricks walked
away from him. Lieutenant Baldwin approached Dougherty and stated that the police had
received a complaint about the picketing and handbilling, and Baldwin asked Dougherty when
an NLRB charge would be filed. Dougherty told Baldwin that it would be filed the next day, as
it was. On cross-examination, Dougherty acknowledged that the Union has not been contacted
by the Ladue police since October 16. On redirect examination, Dougherty testified that the
Union has never been informed that Marcher has withdrawn the complaint to which Baldwin
referred.
Police Lieutenant Baldwin was called as a witness by the Charging Party. Baldwin testified
that after he was informed of a call to the police department, he and one Lieutenant Jack
Rednour went to the Lammert Center where he was met by Ricks and Marcher. Marcher told
Baldwin that he represented Lammert Center and that “he did not want the picketers on the
property.” Baldwin testified that he told Marcher that, according to the County prosecutor’s
policy, he could do nothing before giving the Union until 5 p.m. the next day to file an unfair
labor practice charge, unless there was blocking of ingress or egress (of which there was none).
On cross-examination, Baldwin acknowledged that Ricks stated that Respondent was not
making any complaint; and Baldwin further acknowledged that Ricks made no requests for
him, or the police department, to do anything. Baldwin further testified that, since October 16,
neither Marcher nor anyone else acting on the property owner’s behalf, nor anyone acting on
Respondent’s behalf, has made any further complaint or inquiry to the police department about
the picketing and handbilling. On redirect examination, Baldwin testified that the police de-
partment considered Marcher’s contact with the police department to be a “verbal” (oral)
complaint and that no written complaint was ever filed. Baldwin testified that, other than going
to the scene on October 16, the police department has taken no action on Marchers oral com-
plaint. Baldwin further testified that he has told both Marcher and Ricks that, because of the
charge that has been filed, nothing could be done on the basis of the oral complaint that
Marcher made on October 16. Baldwin testified that he had “no idea” what would happen to (or
because of) Marchers oral complaint if the unfair labor practice charge in this matter were
withdrawn or dismissed.
(Although par. 38 of the stipulation states that a police officer asked the picketers to move
to the perimeter of the property, and that the picketers refused the police officers request,
neither Baldwin nor anyone else testified that Baldwin made such a request, and I find that
Baldwin did not. Baldwin, however, was accompanied to the Lammert Center by Lieutenant
Rednour. Rednour did not testify, but apparently he was the police officer who made the
request to which the parties stipulated.)
The part-time employee who, according to the stipulation, engaged in the picketing and
handbilling is Barbara Hackmann. Hackmann (who is also a full-time paid organizer for the
Union) testified that she was among the first picketers at the store on October 16 and that
picketing has continued since that date.5 Hackmann further testified that, shortly after she was

4 The picketing and handbilling has continued every day, with the
one exception of February 27, 1998, when, as mentioned in par. 45 of
the stipulation, an American Red Cross vehicle was parked in front of
the store to take blood donations.
5 Specifically, the picketing and handbilling has been conducted on
Mondays through Fridays from 11 a.m. to 1 p.m. and 3:30 until 7 p.m.
and on Saturdays and Sundays from 11 a.m. until 3 p.m. Hackmann
further testified, and it is undisputed, that never more than two picket-
ers at a time were stationed in front of the store.
hired by Respondent in August 1996, she witnessed two grade-school-age girls soliciting sales
of tickets to “some sort of breakfast” on the sidewalk immediately outside the store.6 Breakfast
was served on the sidewalk on “four or five tables” that were set up there. The breakfast event
on the sidewalk lasted for about 1-1/2 hours, and it could easily be seen from inside the store, as
can any other activity that is conducted on the sidewalk. Hackmann further testified that in
October 1996 two high-school-age girls came to the store and told her that they wanted to sell
raffle tickets for their school. Hackmann thereupon paged Respondent’s marketing director,
Lois Brady, who was in the store at the time. After talking to Brady, the girls sold the tickets for
about 1-1/2 hours on the sidewalk. (Brady did not testify.) Hackmann further testified that the
stipulated April 23 performance of Circus Flora that was conducted in the parking lot just in
front of the store included acrobats, a unicycle rider, a juggler, and the display of a tiger cub.
Hackmann further testified that in September individuals representing a local radio station
stayed on the sidewalk for about 1-1/2 hours distributing free tickets to a movie that was
showing in the area. Finally on direct examination, Hackmann testified that in December a man
and woman set up a table inside the store to sell sweaters that they had made; the couple
remained, selling the sweaters, for about 6 or 8 hours. On cross-examination, Hackmann
admitted that she was only told that the younger girls were soliciting breakfast tickets for their
school, and she admitted that she did not actually know for what school (or other organization)
those girls were selling breakfast tickets.
The General Counsel also introduced evidence that in December 1996 (or approximately 10
months before the picketing and handbilling here in question began) Union Representative
Dougherty created a bogus petition and caused copies of it to be circulated in and outside
Respondent’s store. Dougherty freely acknowledged that he did this in order to test Respon-
dent’s reaction to a nonunion solicitation.7 The petition was addressed to “Dear Federal & State
Legislator,” and it stated that it was being circulated in opposition to the use of growth hor-
mones in animals and in opposition to alleged inhumane treatment of animals that were being
injected with such hormones. Each copy of the animal-rights petition (as I shall call it) has
spaces for the names and addresses of seven signatories, and at the bottom they state: “Please
return to Greg Fister” at a stated address in St. Louis. (Fister, if he exists, was not otherwise
unidentified.)
Nancy Parker is a vice president of the Charging Party, and she has never been an employee
of Respondent. Parker testified that about noon on December 3, 1996, she and one Jean Under-
wood (also a nonemployee) took blank copies of the animal-rights petition to Respondent’s
store. (Underwood did not testify.) Parker testified that she and Underwood met with Tamara
Ordnoff, the manager of the store. Parker asked Ordnoff if she and Underwood could walk
around the store and get employees and customers to sign the petition. According to Parker,
Ordnoff replied, “Yes, that’d be fine, were not too busy right now; now would be a good time.”
Parker and Underwood then walked the aisles of the store and collected signatures and ad-
dresses of several customers, two employees, and Marketing Director Brady who was also in
the store at the time. When Parker and Underwood finished, they went to the front of the store
where they again met with Ordnoff. Ordnoff asked Parker and Underwood, “How’d you do?”
Parker replied that they had not done as well as they had hoped. Ordnoff asked for some copies
of the petition and stated that, “I’ll see what I can do.” Parker gave Ordnoff three blank copies
of the petition and told her that she could mail them to the address indicated at the bottom.
Ordnoff gave Parker one of her business cards (which was placed in evidence). Parker thanked
Ordnoff and stated that she and Underwood wished to go out to the sidewalk and solicit the
signatures of “anybody else.” According to Parker “She [Ordnoff] said that would be fine
because people in this area are really into this.” Thereupon, further according to Parker, Parker
and Underwood went to the sidewalk area where they stood for 30 minutes in positions where
they could solicit more customers. Parker testified that, as she and Underwood stood outside the
store, no one asked them to leave.
6 Any mention of “the sidewalk” is a reference to the sidewalk im-
mediately outside Respondent’s store (as opposed to the sidewalk at the
perimeter of the owner’s property), unless otherwise indicated.
7 The transcript, p. 62, L. 8, is corrected to change “dispirit” to “dis-
parate.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
Dougherty testified that on December 3, 1996, he was present in Respondent’s store, acting
as a customer, when Parker and Underwood approached Ordnoff. At one point, Dougherty
testified, he saw Parker hand Ordnoff a few copies of the animal-rights petition. Dougherty saw
Parker and Underwood go outside where they solicited signatures on the petitions for about
one-half hour.
Mary Guise is a business agent of the Charging Party, and she also has never been an em-
ployee of Respondent. Guise testified that about 6 p.m. on December 6, 1996, she and her
sister-in-law, Valerie_____went to Respondent’s store and also met with Ordnoff. According to
Guise, she asked for permission to circulate the animal-rights petition among customers and
employees inside the store. Ordnoff replied that they could, “but please dont pressure any
customers.” After Guise and Valerie solicited signatures for about one-half hour inside the
store, they returned to Ordnoff. At that point, Ordnoff presented Guise with a copy of the
petition that had been signed by Ordnoff, four employees, and Lori Raseska. (In her testimony,
Ordnoff described Raseska as Respondent’s “front-end manager.”) After accepting the petition,
Guise told Ordnoff that she and Valerie wished to go outside and solicit more signatures;
Ordnoff replied that that would be “fine.” Guise and Valerie then went to the sidewalk where
they stayed for another half-hour soliciting signatures on the animal-rights petitions. During
that time, Guise further testified, no one asked them to leave. (Valerie did not testify.)
Testimony Offered by Respondent
Ordnoff testified that she was the “manager on duty” in late 1996. Ordnoff denied ever see-
ing Parker or Guise before the hearing, and she specifically denied granting Parker or Guise
permission to circulate the animal-rights petition inside or outside the store. Ordnoff testified
that in December 1996 a “young man” and two other persons came to the store. She was
approached by the young man who showed her the animal-rights petition, asked her to sign it,
and asked her if he could circulate the petition inside the store among customers and employ-
ees. Ordnoff told the young man that she would sign it, and she did. Ordnoff further testified
that she told the young man that he could not circulate the petition in the store without the
general managers permission but that she would circulate the petition among the employees
herself. Ordnoff called five employees over to sign it, and they did. Ordnoff denied that the
young man ever asked for permission to circulate the petition outside the store, and she denied
that she ever saw anyone circulating a petition outside the store. After Ordnoff gave this
testimony that she was the only one who circulated the petition among employees in the store,
she was recalled for further direct examination; Ordnoff then testified that other copies of the
petition were circulated at the same time by the two individuals who had come to the store with
the young man. Ordnoff also then testified, referring to other copies of the petition, “And they
were all circulated at that time also.”
Randall Green, the general manager of Respondent’s store, testified that many philan-
thropic and environmental organizations had attempted to solicit signatures on petitions since
the store opened in August 1996. In each case, because of actual or potential customer com-
plaints, he denied them permission in advance, or he asked the organizations to leave if they
had begun to solicit without his permission. In each case the organizations complied with
Green’s requests. Green acknowledged that never before the Union’s picketing and handbilling
that began on October 16 had any agent of Respondent contacted the property owner when an
organization engaged in solicitations.
In regard to the Circus Flora performance outside the store on its “5% Day” on April 23
(stipulation, pars. 25 through 31), Green testified that none of the outside activities had been
preplanned, and he did not know about them until they were over.8 In regard to the Humane
Societys 5 percent Day of May 7 (Stipulation, pars. 25, 26, 30, and 31), Green acknowledged
that the Society placed several animal cages in the parking lot in front of the store in the hope
that the displayed dogs and cats would be adopted, but he denied that he had known in advance
that the Society was going to do that. Green further acknowledged, however, that the Society
maintained the cages in the parking lot for 30 to 40 minutes without his asking that they be
removed. In regard to Hackmanns testimony that a school was once allowed to sell breakfasts

8 Green was not asked about the outside banner that Circus Flora
displayed on the building during its parking lot performance (stipula-
tion, par. 27).
on the sidewalk, Green denied that the event occurred. Green acknowledged, however, that at
Respondent’s “Grand Opening” in August 1996 Respondent’s employees sold breakfasts on the
sidewalk, the proceeds benefitting a charity.9 In regard to the stipulated February 28, 1998
activity of the Blood Mobile, Green testified that he did not object because:

[The] Red Cross approached us and we had gone—
basically there was going to be a bus out in the parking lot,
had gone through the property manager [who] okayed it. I
mean they werent soliciting much, they were just asking
for donations.

Green admitted that the radio station to which Hackmann referred distributed free movie tickets
to customers inside the store during its promotion, but he denied that he knew that such tickets
were distributed on the sidewalk, and he denied that the representatives of the station were
given permission to engage in such activity. Finally, Green flatly denied that Respondent ever
permitted school children to sell raffle tickets on the sidewalk.
Green further acknowledged that inside the store, in addition to the solicitations conducted
by charities on their monthly 5 percent Days, Respondent has “maybe a total of four times”
permitted a vendor to sell sweaters, and Respondent collects a fee from that vendor.
Green further testified that the notice to employees that is referred to in paragraph 42 of the
stipulation (advising employees that they would not be disciplined for engaging in the picketing
and handbilling) was posted from October 22 until December 28 (when he removed
all other notices from Respondent’s bulletin board, as well). Fi-
nally, Green testified that he has re-stated the message of the
notice to employees during several staff meetings that he has
conducted.
Credibility Resolutions
Green was credible in his testimony that the only breakfast
service that Respondent ever permitted on the sidewalk was the
one that it conducted at its grand opening in August 1996. Hack-
mann, however, was credible in her testimony that in October
1996 Marketing Director Brady permitted high school girls to
solicit for a charitable purpose outside the store for 1-/1/2 hours.
Hackmann was further credible in her testimony that in Septem-
ber 1997 representatives of a local radio station were allowed to
stand on the sidewalk for 1-/1/2 hours to engage in a promotion
of that (noncharitable) business, which promotion included dis-
tributions of free movie tickets. Moreover, Parker and Guise were
credible in their testimonies that in December 1996 Ordnoff per-
mitted them to circulate the animal-rights petitions outside the
store as well as inside. Parker and Guise had each had a more
favorable demeanor than Ordnoff, and Parker was credibly cor-
roborated by Dougherty in at least part of her testimony. More-
over, Ordnoff rendered herself unimpressive on another account.
Ordnoff first testified to the existence of only one petition; she
testified that she circulated it after telling the young man that he
needed the general manager’s permission to engage in such a
solicitation himself; then, in an obvious attempt to explain the
other copies of the petition, Ordnoff returned to the stand to state
that, after all, the other two people who were with the young man
circulated petitions, in her presence, even without the general
manager’s permission. Ordnoff was not credible.
9 As Green described the event: “Basically, we had a grill out there
and we had a few tables for condiments, papers plates and people
would walk through the line. They would be served. We had one person
out there taking cash and a couple [of] tent awnings right out in front of
the store.”
WILD OATS COMMUNITY MARKETS 189
Conclusions
Respondent contends that, even if it did cause the Ladue police
to attempt to have the picketing union representatives removed
from in front of Respondent’s store, its action cannot be held to
be a violation of Section 8(a)(1) because it could not be consid-
ered “discriminatory,” as paragraph 5 of the complaint alleges.
Citing various cases, Respondent argues that its action could not
be considered to be discriminatory because the only solicitations
that it ever allowed were “isolated” instances of “beneficent
acts.” Assuming that proof of discrimination is necessary for the
establishment of a violation in this case, the nonunion-concerned
solicitations that Respondent did permit were hardly isolated, and
they were not all “beneficent.” There is no distinction in law
between the indoor and the outdoor solicitations that Respondent
permitted,10 but the permitted outdoor solicitations alone prove
that Respondent allowed more than “isolated” solicitations. In
August 1996, Respondent, despite its lease obligation not to do
so (stipulation, par. 24), opened its store with an outdoor solicita-
tion, the breakfast service that it conducted on the sidewalk.
Thereafter, it permitted the outdoor solicitations of the high
school ticket sales, the Circus Flora event,11 the Humane Society
event, the radio-stations promotion, and the Blood Mobile solici-
tation. In addition to those outdoor events, Respondent permitted
the union representatives to solicit signatures outside, as well as
inside, the store when they were circulating the animal-rights
petitions. Additionally, Respondent did permit, or even sponsor,
the monthly (i.e., regular) 5% Days for various charities that were
conducted inside the store. Finally, Respondent sponsored or
permitted the sweater sales and the radio station promotion, both
of which were purely operations for profit. Therefore, the other
solicitations that Respondent permitted, or sponsored, were nei-
ther “isolated” nor “beneficent.”
More importantly, proof of discrimination is not necessary to
establish a violation in this case. In cases of actual or attempted
ejections of nonemployee solicitors, discrimination issues arise
only in the context of actions by a respondent who has a property
interest which would allow it to exclude all solicitations. In such
cases, the Board first determines whether a respondent has such a
property interest.12 If the respondent does have such a property
interest, the Board examines whether it has valid and applicable
no-solicitation rules.13 Only if the concerned respondent does
have such a property interest, and only where it does have valid
and applicable no-solicitation rules, will the Board examine
whether such rules have been applied discriminatorily. In this
case, however, the picketing and handbilling were conducted in

10 See, for example, Schears Food Center, 318 NLRB 261 (1995),
where discriminatory enforcement of no-solicitation rules against out-
door activities was proved by various indoor solicitations.
11 The Circus Flora event also included an outside banner which was
much larger than any picket sign that the Union ever utilized.
12 See, for example, Food For Less, 318 NLRB 646, 649–650, enfd.
95 F.3d 733 (8th Cir. 1996), which holds that the considerations of
Lechemere, Inc., 502 U.S. 527 (1992); and Babcock & Wilcox Co., 351
U.S. 105 (1956), do not apply in cases where the respondent-employer
does not have such a property interest.
13 See, for example, Price Chopper, 325 NLRB 186 (1997), where
the respondent had valid no-solicitation rules, but none applied to the
physical area where the nonemployee activity was conducted.
the common areas of the property where Respondent has only
“an appurtenant easement.” (Stipulation, par. 20.) Because of the
limited nature of its leasehold interest, Respondent has no prop-
erty right that would allow it to establish valid no-solicitation or
no-distribution rules under the aegis of which it could lawfully
seek to interfere with the picketing and handbilling activities that
the Union has conducted (and is conducting) in this case.14
Moreover, Respondent stipulated that it does not maintain either
a no-solicitation or no-distribution policy. (stipulation, par. 23.)
In summary, regardless of whether Respondent has acted dis-
criminatorily, it had no right to seek to exclude the soliciting
nonemployees because it had an insufficient property interest to
do so; and even if it had had such interest, it did not have valid and applicable no-
solicitation rules pursuant to which it could lawfully have sought to exclude the Union from the
common areas of the Lammert Center.
The issue therefore becomes whether Respondent’s stipulated act of reporting the picketing and
handbilling to the property owner constituted interference within the meaning of Section 7 and
Section 8(a)(1). I conclude that it did.
Respondent first argues that its report to the property owner is protected free speech under the
first amendment to the Constitution. In Hudgens v. NLRB, 424 U.S. 507 (1976), however, the
Supreme Court rejected such an attempted application of constitutional free speech principles to
disputes regarding nonemployee access to “quasi-public” private property. Respondent further
argues that Section 8(c) of the Act insulates its conduct from challenge. Section 8(c) provides:

The expressing of any views, argument or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence
of an unfair labor practice under the provision of this Act, if
such expression contains no threat of reprisal or force or
promise of benefit.

In this case, however, even if one assumes that Respondent’s contacting the property owner could
be considered something of an expression of “views, argument or opinion,” it was also a great deal
more. Respondent’s contacting the property owner about the picketing and handbilling was an
implied (if not express) request for the property owner to do something. That something, inelucta-
bly, was a call to the police in an attempt to get the Union’s lawful picketing and handbilling
activities stopped.
To preclude any possibility that Marcher could have missed the object of Respondent’s contact,
Respondent’s attorney accompanied Marcher as he made his request to the police; Respondent
offers no other explanation for Rick’s presence during Lieutenant Baldwin’s on-site investigation.
Even without Rick’s accompaniment, however, Marcher assuredly knew when he was called by
Respondent’s agent that Respondent had never before complained about other solicitations that had
been conducted in the common areas of the property. Marcher would also have known that in its
lease Respondent had assumed no obligation to notify the property owner of such solicitations. That
is, Marcher knew that Respondent was not engaging in an academic exercise when its agent
contacted him “to report the presence of the picketers and to inquire about the owner’s policy about
such picketing activities on the property owner’s parking lot.” (Stipulation, par. 35.) Ineluctably,
again, Marcher knew what Respondent wanted him to do, and Marcher did it.
Calling the police in an effort to stop otherwise lawful picketing and handbilling was something
that Respondent could not have lawfully done itself. Great Scot, Inc., 309 NLRB 548 (1992).
Respondent’s attempt to interfere with the employees’ Section 7 rights by indirection was no more
lawful than if it had made the request to the police itself. I therefore find and conclude that on
October 16, 1997, Respondent violated Section 8(a)(1) of the Act by informing the owner of the
Lammert Center about the Union’s lawful picketing and handbilling activities where an object of so
informing the owner was to interfere with such activities.
14 See Food For Less, supra, which discusses such leases, specifi-
cally under Missouri law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
Finally, Respondent argues that no order can be issued against it because of the stipulated no-
tices that it has posted to the employees and because of the assurances to the employees that Green
has orally given. Those notices and assurances, however, stated no more than that employees could
themselves assert their Section 7 rights. They did not promise, in any way, that Respondent would
not continue to interfere with the rights of employees by interfering with the protected conduct of
nonemployee union agents such as those involved in this case.
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended15
ORDER
The Respondent, Wild Oats Markets, Inc. d/b/a Wild Oats Community Markets, Ladue, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing the owner of the Lammert Center about any lawful picketing or handbilling ac-
tivities by the Union where an object of so informing the owner is to interfere with such activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Ladue, Missouri, copies of
the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by the Regional
Director for Region 14, after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since October 16, 1997.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn cer-
tification by a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended 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.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”