NLRB v. ImageFIRST Uniform Rental Serv , 910 F.3d 725 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-3522
______________
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
IMAGEFIRST UNIFORM RENTAL SERVICE, INC.
Respondent
______________
No. 17-3680
______________
IMAGEFIRST UNIFORM RENTAL SERVICE, INC.
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
______________
On Application for Enforcement and Cross-Petition for
Review of an Order of the National Labor Relations Board
(NLRB-1 No. 4-CA-166319)
______________
Argued October 22, 2018
BEFORE: KRAUSE, COWEN, and FUENTES, Circuit
Judges
(Opinion Filed: December 18, 2018)
______________
Julie B. Broido
Linda Dreeben
Kellie Isbell (argued)
National Labor Relations Board
1015 Half Street, S.E.
Washington, DC 20570
Attorneys for Petitioner in No. 17-3522
Christopher J. Murphy (argued)
Michael K. Taylor
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103
Attorneys for Petitioner in No. 17-3680
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______________
OPINION OF THE COURT
______________
COWEN, Circuit Judge.
The National Labor Relations Board (the “NLRB”)
applied for enforcement of an NLRB decision and order finding
that ImageFIRST Uniform Rental Service, Inc. (“ImageFirst”)
violated the National Labor Relations Act (“NLRA”).
ImageFirst cross-petitioned for review of the NLRB’s decision
and order. We will grant in part and deny in part both the
application for enforcement and the cross-petition for review.
We will grant the application for enforcement and will
deny the cross-petition for review as to the uncontested portions
of the decision and order—specifically the NLRB’s findings that
ImageFirst violated Section 8(a)(1) of the NLRA by prohibiting
union representatives from distributing pro-union literature in
the public right-of-way adjacent to ImageFirst’s facility and by
attempting to remove the union representatives from the public
right-of-way.
The NLRB also found that ImageFirst violated Section
8(a)(1) by threatening to summon and summoning the police
when the union representatives refused to leave from the public
right-of-way. We will grant ImageFirst’s cross-petition for
review and will deny the NLRB’s application for enforcement as
to this finding. Substantial evidence did not support the
NLRB’s finding that ImageFirst’s threat to call the police and
the company’s call to the police were motivated solely by a
3
desire to remove the union representatives from the right-of-
way. Given the evidence in the record as well as the findings of
facts made by the Administrative Law Judge (“ALJ”), no
reasonable finder of fact could have failed to find that
ImageFirst’s conduct was motivated by a broader—and
reasonable—concern over its property interests based on the
union representatives’ repeated and ongoing forays onto its
private property.
I.
ImageFirst provides health care laundry services at a non-
union facility located on Prospect Road in Columbia,
Pennsylvania. The Philadelphia Joint Board, Workers United
a/w Service Employees International Union filed a charge of
unfair labor practices against the company. The charge arose
out of the company’s alleged efforts, undertaken by Bryan
Cunningham (the general manager of the Columbia facility), to
prevent four union representatives (Jennifer Valentin, who was
the leader of the group, Gladys Toledo, Silvia Patterson, and
Tina Gainer) from distributing pro-union leaflets outside the
facility on the morning of December 16, 2015. Section 7 of the
NLRA guarantees employees “the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
Section 8(a)(1) provides that “[i]t shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of” their Section 7 rights. 29 U.S.C. §
158(a)(1). After an initial investigation, the NLRB General
Counsel filed a complaint of unfair labor practices against
ImageFirst. The ALJ conducted an evidentiary hearing and
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subsequently issued a decision and a proposed order.
The ALJ considered whether ImageFirst violated Section
8(a)(1) by demanding that the union representatives leave a
public right-of-way and threatening to summon and then
summoning the police while they were distributing handbills to
its employees. The public right-of-way includes the shoulder
running parallel to Prospect Road. ImageFirst’s property is
separated from the shoulder by a concrete curb. The curb
borders a strip of grass, which itself borders a small parking lot,
all of which is owned by ImageFirst. In addition, ImageFirst’s
property encompasses the driveway connecting the parking lot
with Prospect Road. ImageFirst has a fee title to the centerline
of Prospect Road, subject to an easement of public use.
According to the ALJ, ImageFirst failed to meet its burden
under Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997),
enforced sub nom. NLRB v. Calkins, 187 F.3d 1080 (9th Cir.
1999), to show that, when Cunningham demanded that the
police remove the union representatives distributing union
literature on the public right-of-way, the company possessed a
property interest in the shoulder of the road allowing it to
exclude the union representatives.
The ALJ characterized the issue before him as “whether
the union representatives were engaged in union leafleting on
the Respondent’s property and not on the shoulder of the
Prospect Road and whether the Respondent was concerned over
public safety.” (JA11.) “Counsel for the Respondent argued
that Cunningham had only wanted the four union representatives
removed from the facility’s property. While the Respondent’s
property included the public right-of-way, the Respondent
concedes that it had no problem with the public or the
representatives standing and walking on the shoulder.” (Id.)
5
The ALJ, however, found that this was not the company’s
position on the morning of December 16:
I do not credit Cunningham’s testimony that he
merely wanted the four union representatives
removed from the company’s property.
In my opinion, I believe that the
Respondent wanted the union representatives
removed from the Respondent’s property that it
mistakenly believed included the shoulder of
Prospect Road and that it could exercise control
over the shoulder of the road based upon its
ownership of a fee to the center of the road.
I find that Cunningham was operating
under a mistaken belief that the Respondent
control of its property extended to the middle of
the road without regards to the public right-of-
way or easement. . . . .
(JA11.)
The ALJ made this finding based on several
considerations. The ALJ explained that the union
representatives, even if they had initially been standing on the
grassy area, moved to the shoulder minutes after Cunningham
spoke with them and asked them to move. When he spoke with
them the second time (after consulting with his superiors), they
thereby had already moved to the shoulder. Cunningham asked
them to leave, and Valentin (the union field coordinator) said
that they had a right to be there. Cunningham then had no
authority to ask them to leave or to threaten to call the police
because they did exactly what they were told to do. “There was
6
no reason for Cunningham to call the police because the four
representatives were now on the shoulder and not on the
Respondent’s property. It is obvious to me that Cunningham
was under a mistaken belief that the Respondent could continue
to demand that the union representatives to [sic] leave a public
right-of-way.” (Id.) Acting based on this mistaken belief,
Cunningham called the police, told them that the union
representatives were trespassing, and demanded that they be
arrested. Cunningham acquiesced only after the police told him
that the shoulder was a public right-of-way and that the union
representatives were allowed to stay while they were on the
shoulder:
Here, testimony regarding the location and
consequences of the activities of the handbillers
was provided by the General Counsel’s witnesses
and Cunningham. Although Cunningham told
them to leave Respondent’s property, both
Valentin and Grainer testified, without
contradiction, that they were situated on the
public right-of-way after their initial conversation
with Cunningham. Cunningham admitted upon
exiting his car on the second occasion that the
union representatives were on the shoulder. He
also conceded and did not protest once the police
told him that the union representatives could stay
on the shoulder, which the police corrected him
that it was a public right-of-way.
(Id.)
In the heading to the next section of his decision, the ALJ
stated that “The Trespassing was Insignificant to Warrant the
7
Removal of the Union Representatives.” (Id.)
Responding (again) to ImageFirst’s assertion that
Cunningham wanted the union representatives to leave its
property, the ALJ found that, although upset that they were
initially standing on the grassy area of the property,
Cunningham did not truly believe that the alleged trespassing
was so egregious to warrant police removal (a finding supported
by the fact that he never demanded that the union
representatives be removed or arrested for any alleged
trespassing that may have occurred before the arrival of the
police). “On this point, I fully credit the testimony of Officers
Stutzman and Villano,” because they were neutral observers
who testified in a candid and open manner consistent with the
corroborated record. (JA12 n.15.) Officer Stutzman testified
that it would not be trespassing if an owner told the union
representatives to get off the property and they did so. “This is
exactly what had occurred here. According to Cunningham,
above, he observed the union representatives on the grassy area
and in the driveway, told them to get off his property and by the
time he finished the calls to [his supervisors] Brown and
Geraghty, they had already moved to the shoulder.” (Id.)
Officer Villano testified that Cunningham “never demanded
they were on the property and refused to leave.” (Id.) “‘If we
would arrive and Mr. Cunningham would have said they were
on the property and refused to leave when told to do so, that
would have been a trespass and they would have been arrested
for trespassing.” (Id. (quoting JA423).) According to Officer
Villano, Cunningham “didn’t say that” to him. (Id. (quoting
JA423).)
However, the ALJ then explained in some detail that the
union representatives’ forays—including their incursions onto
8
ImageFirst’s driveway—did not rise to the level of trespassing
and that, even if they did, would not justify calling the police:
Officer Stutzman also recalled one leafletting
occasion during his presence with a representative
walking to the car. Officers Stutzman and Villano
took no action even though the representative
would more likely than not had entered into the
Respondent’s driveway while under his
observation ([JA437, JA438]). Cunningham also
took no action to point the trespassing to the
officers.
My point is that a brief foray on the grassy
area to talk to Cunningham (which I cannot
conceive this to be trespassing, as argued by the
Respondent, since there is an implicit
understanding that one would approach another at
mid-point to talk and Cunningham did not venture
onto the grassy area) or to hand out a leaflet in the
driveway would not reasonably be considered
trespassing. Such handful of very brief and
isolated forays on the lip of the driveway is
insignificant to warrant a finding that the union
representatives were trespassing. I would also
take note that the Respondent did not
subsequently contact the police after December
16 on alleged trespassing by union representatives
and members even though it was aware of the
trespassing ([JA578-JA582]).
Assuming such minor infractions on
December 16 are considered as trespassing, I also
9
find the trespassing as infrequent, insignificant,
not substantial and merely harmless error in that
the union representatives did not venture far from
the shoulder, the incursions were infrequent, the
union representatives were very brief in
approaching a driver and quick to return to the
shoulder, and their presence did not cause any
safety or other hazardous condition of public
concern. Officer Villano testified that it would
not be trespassing if the union representatives
were briefly standing on the concrete curb to
avoid traffic ([JA421]). I find such infractions no
different as when a pedestrian or cyclist would
stop and rest on the curb or grassy area of the
Respondent’s property.
To the extent that Valentin and Gainer
crossed the line onto private property, which I
have found to be infrequent and quick forays, the
credited testimony establishes that such incursions
were minimal and were not disruptive to
operations and therefore not sufficient to
constitute a trespass which would justify
summoning the police or with the police taking
any action to arrest the representatives. See, e.g.,
[New Jersey Bell, 308 NLRB 277 (1992)], above
(causing the arrest and filing of a criminal
complaint against a union agent who remained on
employer’s premises 3 to 4 minutes after being
told to leave found to violate the Act).
Accordingly, I find that the Respondent
attempted to remove the union representatives
10
engaged in union handbilling in violation of the
Act and not because they were trespassing on the
Respondent’s property.
(JA12-JA13 (also noting that Deanna Robinson’s testimony
indicating that she was approached by union representative in
parking lot was consistent with Valentin’s admission that
Patterson entered into parking area but that this approach was
not known to Cunningham and thereby could not have been
basis for summoning police).)
Furthermore, the ALJ found, on the one hand, that
ImageFirst’s actions were not motivated by safety concerns. On
the other hand, the ALJ determined that ImageFirst did not
instruct a van driver transporting several employees to drive past
the union representatives and that the company did not engage
in surveillance of employees receiving handbills from the union
representatives.
Based on these factual findings and discussion of the
relevant legal principles and case law, the ALJ made, inter alia,
the following conclusions of law:
3. The Respondent violated Section 8(a)(1) of the
Act on about December 16, 2016, by prohibiting
union representatives from distributing prounion
literature in the public right-of-way adjacent to
the Respondent’s facility.
4. The Respondent violated Section 8(a)(1) of the
Act on about December 16, 2015, by attempting
to remove the union representatives from the
public right-of-way.
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5. The Respondent violated Section 8(a)(1) of the
Act on about December 16, 2015, by threatening
and summoning the police when the union
representatives refused to leave from the public
right-of-way.
6. The Respondent did not otherwise violate
Section 8(a)(1) of the Act by allegedly engaging
in surveillance of employees receiving the union
literature from the union representatives about on
December 16, 2015.
7. The Respondent did not otherwise violate
Section 8(a)(1) of the Act when Cunningham
allegedly instructed the van driver to drive past
the union representatives preventing employees
from receiving union handbills.
(JA16.) The ALJ recommended that ImageFirst be ordered to
post a remedial notice and be ordered to cease and desist from
prohibiting union representatives from distributing union
literature to employees in the public right-of-way, attempting to
remove them from the public-right-of-way, or, in any like or
similar manner, interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights.
A three-member panel of the NLRB, with Chairman
Miscimarra concurring, affirmed the ALJ’s rulings, findings
(including the ALJ’s credibility determinations), and
conclusions. The majority adopted the recommended order as
modified. “There were no exceptions to the judge’s dismissal of
the allegations that the Respondent violated 8(a)(1) by
instructing a van to drive past the union representatives, thereby
preventing employees in the van from receiving the handbill, or
12
by surveilling employees as they received the union handbill.”
(JA1 n.1.) According to the NLRB majority, ImageFirst was not
motivated by a reasonable concern to protect its own property
interest:
In adopting the judge’s finding that the
Respondent violated the Act by threatening to
summon and summoning the police, we find that
the Respondent’s conduct was not motivated by a
reasonable concern over protecting its property
interest. See Nations Rent, Inc., 342 NLRB 179,
181 (2004). Before the Respondent called the
police, the union representatives had already
moved to the shoulder of the highway at the
Respondent’s request; the union representatives
were on the shoulder, not the Respondent’s
private property, when the police arrived; and it
was not reasonable for the Respondent to believe
it had a property interest in the shoulder that
privileged it to exclude the union representatives
from the shoulder, in light of the open and
notorious public use of the shoulder by, for
example, pedestrians, cyclists, and people picking
up their mail, of which the Respondent was well
aware. See Food for Less, 318 NLRB 646, 650
fn.6 (1995) (“[E]ven assuming the [r]espondent
properly controlled the sidewalk, it caused the
union representatives to be ejected not only from
the sidewalk but from [other areas]—clearly
beyond any authority pursuant to a property
interest held by the [r]espondent.”), enfd. in rel.
part 95 F.3d 733 (8th Cir. 1996). Accordingly,
we find that the Respondent violated the Act
13
when it threatened to call and called the police on
the basis that it sought to have the union
representatives removed or arrested because they
were engaged in protected union handbilling on
the public shoulder of the highway adjacent to the
Respondent’s private property.
(JA1 n.1.) The majority stated that this finding was not based
on the ALJ’s own finding of de minimis trespassing. “We do
not rely on the judge’s finding that the union representatives’
entry onto the Respondent’s private property—by briefly
standing on a grassy area and the Respondent’s driveway—was
a de minimis trespass. Accordingly, we do not address our
colleague’s discussion of that finding.” (Id.)
That colleague, Chairman Miscimarra, explained in his
concurring opinion that, while the union representatives at times
stepped onto the grassy area between the shoulder of the road
and the parking lot to avoid passing traffic, they confined
themselves to the shoulder after they were told to stay off
ImageFirst’s property. “If an automobile stopped at the bottom
of the driveway, a representative would take a few steps into the
driveway to deliver the leaflet.” (JA2.) Citing Nations Rent and
Food for Less, Chairman Miscimarra joined the majority in
finding that ImageFirst violated the NLRA both by demanding
that the union representatives stop leafleting from the shoulder
and by threatening to call and then calling the police when they
refused. Chairman Miscimarra disagreed with the ALJ’s finding
that the representatives did not trespass when they entered the
driveway to distribute handbills or that, if they did trespass, it
was de minimis and excusable. (See JA2 n.1 (further
summarizing ALJ’s trespassing findings).) “This finding is
unnecessary to the disposition of this case, and my colleagues do
14
not rely on it. I believe that the Board should repudiate this
analysis because it is directly contrary to Supreme Court
precedent.” (JA2.) Relying on Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992), Chairman Miscimarra then explained why the
union representatives had no Section 7 right to trespass on
ImageFirst’s property, regardless of the scope or extent of their
trespass.
II.
The NLRB possessed jurisdiction over this proceeding
under Section 10(a) of the NLRA, 29 U.S.C. § 160(a). We have
jurisdiction pursuant to Section 10(e) and (f), 29 U.S.C. §
160(e), (f).
This Court applies a plenary standard over questions of
law and the NLRB’s application of legal precepts (although we
also defer to its reasonable interpretations of the NLRA). See,
e.g., Trimm Assocs., Inc. v. NLRB, 351 F.3d 99, 102 (3d Cir.
2003). Factual findings by the NLRB are reviewed under the
substantial evidence standard. See, e.g., § 160(e), (f); Adv.
Disposal Servs. East, Inc. v. NLRB, 820 F.3d 592, 606 (3d Cir.
2016). Substantial evidence requires more than a scintilla, and it
means relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. See, e.g., id. While
deferential, this standard requires us to consider both the
evidence in the record supporting the NLRB’s findings of fact as
well as “whatever in the record fairly detracts” from its findings.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
III.
ImageFirst does not challenge the summary enforcement
of certain aspects of the NLRB’s decision and order.
15
“ImageFirst is not disputing the NLRB’s limited finding that
Cunningham’s erroneous belief that the Company had a
property interest in the shoulder of the road was unreasonable,
and thus, a violation of the Act.” (ImageFirst’s Brief at 1 n.1.)
“The Company is not seeking review of the Board’s conclusion
that it violated the Act by seeking to have the Union
representatives removed from the shoulder of Prospect Road.”
(Id. at 9 n.4; see also id. at 19 n.10 (“Here, [ImageFirst]
concedes that Cunningham’s attempt to have the Union
representatives excluded from the shoulder of Prospect Road
was improper.”).) We will grant the application for enforcement
filed by the NLRB and will deny the cross-petition for review
filed by ImageFirst as to the NLRB’s findings that ImageFirst
violated Section 8(a)(1) of the NLRA by prohibiting union
representatives from distributing pro-union literature in the
public right-of-way adjacent to ImageFirst’s facility and by
attempting to remove the union representatives from the public
right-of-way.
However, ImageFirst does argue that the NLRB failed to
consider undisputed facts found by the ALJ in its determination
that Cunningham’s call to the police was not motivated by a
reasonable concern for the company’s property rights. We
agree. In short, substantial evidence did not support the finding
by the NLRB that ImageFirst’s threat to call the police and the
company’s call to the police were motivated solely by a desire to
remove the union representatives from the public right-of-way.
Given the evidence in the record as well as the ALJ’s findings of
fact, no reasonable finder of fact could have failed to find that
ImageFirst’s conduct was motivated by a broader concern over
its property interests, implicated by the union representatives’
repeated and ongoing forays onto its private property. A
reasonable fact-finder would also have to find that the
16
company’s concern was reasonable. We will therefore grant
ImageFirst’s cross-petition for review and deny the NLRB’s
application for enforcement as to the finding by the NLRB that
ImageFirst violated Section 8(a)(1) of the NLRA by threatening
to summon and summoning the police when the union
representatives refused to leave from the public right-of-way.
Generally, “an employer cannot be compelled to allow
distribution of union literature by nonemployee organizers on
his property.” Lechmere, Inc. v. NLRB, 502 U.S. 527, 533
(1992). “Where the ‘location of a plant and the living quarters
of the employees place the employees beyond the reach of
reasonable union efforts to communicate with them,’ [NLRB v.
Babcock & Wilcox Co., 351 U.S. 105, 113 (1956)], employers’
property rights may be ‘required to yield to the extent needed to
permit communication of information on the right to organize,’
[Babcock, 351 U.S. at 112].” Id. at 533-34. It is uncontested
that no such exception could apply in this proceeding. It is also
uncontested that an employer cannot restrict union access to
public property or private property from which the employer
does not possess the right to exclude others. See, e.g., Indio
Grocery Outlet, 323 NLRB 1138, 1141 (1997) (“The Board has
stated that ‘in cases in which the exercise of Section 7 rights by
nonemployee union representatives is assertedly in conflict with
a respondent’s private property rights, there is a threshold
burden on the respondent to establish that it had, at the time it
expelled the union representatives, an interest which entitled it
to exclude individuals from the property [emphasis in
original].’” (quoting Food for Less, 318 NLRB at 646, 649
(1995), aff’d in relevant part sub nom. O’Neil’s Markets v.
United Food & Commercial Workers Union, Meatcutters Local
88, 95 F.3d 733 (8th Cir. 1996)), enforced sub nom. NLRB v.
Calkins, 187 F.3d 1080 (9th Cir. 1999).
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It is well established that there is no NLRA violation
where an employer can show that its threat to call or its call to
the police “is motivated by some reasonable concern, such as
public safety or interference with legally protected interests.”
Nations Rent, Inc., 342 NLRB 179, 181 (2004) (citing Great
American, 322 NLRB 17, 21 (1996)); see also, e.g., Sprain
Brook Manor Nursing Home, LLC, 351 NLRB 1190, 1191-92
(2007) (applying “reasonable concern” rule). As the NLRB
explained in Nations Rent, “[s]o long as the employer is acting
on the basis of a reasonable concern, Section 8(a)(1) is not
violated merely because the police decide that, under all the
circumstances, taking action against [the union representatives]
is unwarranted.” Id. This rule thereby implicates both
subjective and objective components. The employer must
possess a subjective concern about interference with legally
protected interests, such as its private property rights. The
employer’s concern then must be objectively reasonable.
ImageFirst manifestly satisfied both components.
According to the NLRB, the evidence in the record
demonstrated that Cunningham called the police because he
mistakenly believed that ImageFirst could eject the union
representatives from the shoulder—and not because they were
on the company’s driveway or other parts of its property. The
NLRB points out that the union representatives were on the
shoulder when Cunningham threatened to summon the police,
when he called the police, and when the police officers arrived.
While conceding that the union representatives had initially
entered ImageFirst’s property, the NLRB insists that they moved
to the public right-of-way after their initial conversation with
Cunningham and then stayed there. “The union representatives
testified that they remained in the public right-of-way after their
initial conversation with Cunningham. ([JA12, JA202-JA203,
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JA220, JA225-JA228, JA234, JA331-JA332, JA336-JA337].)
Officers Villano and Stutzman likewise testified that the
representatives were on the shoulder when they arrived and
remained there while they were on the scene. ([JA7, JA8,
JA391, JA429-JA430]).” (NLRB’s Brief at 16-17.) Officer
Villano testified that he asked Cunningham where the union
representatives were when they trespassed. “And [Cunningham]
said they were basically where they were at when I got there.
That he had – in his conversation with the owner of the business,
the owner of the business told him that the business owns that
section of Prospect Road up to the double yellow lines there.
And since the women were on that area of Prospect Road that
[sic] they considered that trespassing.” (JA393.) Officer
Villano explained to Cunningham that the shoulder was a public
right-of–way, and Cunningham acquiesced in the union
representatives remaining on the shoulder. Admittedly, the ALJ
did reject ImageFirst’s contention that Cunningham only wanted
the union representatives removed from the property.
“Although Cunningham told them to leave Respondent’s
property, both Valentin and Grainer testified, without
contradiction, that they were situated on the public right-of-way
after their initial conversation with the police.” (JA12.) The
ALJ also pointed out that “Officer Villano testified Cunningham
never demanded they were on the property and refused to
leave.” (Id.)
Nevertheless, Cunningham was clearly concerned about
more than the shoulder. Cunningham testified that he witnessed
these individuals continue to make forays onto the company’s
driveway to leaflet vehicles—even after they had moved to the
shoulder from the grassy area. He observed these incursions
onto ImageFirst’s private property when he first arrived at the
facility (in fact, a union representative entered the driveway to
19
hand him a leaflet) and when he went to speak with them for the
first time. Asked about their second conversation, Cunningham
testified that the driveway leafleting continued while he was
“interacting” with the union representatives. (JA484.) “All the
leafletings that I saw was going on right in this area [indicating
ImageFirst’s driveway].” (Id.) According to the ALJ, “Valentin
[who was in charge of the union representatives] admitted [on
cross-examination] that she was but should not have been in the
driveway.” (JA4 (footnote omitted).) “Valentin admitted that
on occasions, a representative may have entered the driveway
but no more than 5-10 feet from the shoulder area and would
immediately leave the area.” (Id.) The union field coordinator
also indicated that the union representatives were standing on
the curb or the grassy area as much as ten percent of the time
that they were present at ImageFirst’s facility (i.e., between 5%
and 10% for Valentin herself, 0% and 5% for Gainer and
Patterson, and “closer to 90% of the time on the shoulder” for
Toledo (JA238)).
As counsel for ImageFirst acknowledged at oral
argument, the ALJ may not have enumerated the number of
forays that occurred before the call to the police was made, after
the call, and while the police were present on the scene. The
ALJ did undertake a full analysis to explain why “The
Trespassing Was Insignificant to Warrant the Removal of the
Union Representatives.” (JA12.) If the driveway forays had
neither continued to occur nor furnished a motivation for calling
the police, it would have been unnecessary for the ALJ to
explain why such forays either did not constitute trespasses or, if
they did, why such trespasses failed to constitute an adequate
justification for calling the police. Likewise, the ALJ never
specifically found that Cunningham’s actions were motivated
solely by a desire to remove the union representatives from the
20
shoulder. On the contrary, the ALJ refused “to credit
Cunningham’s testimony that he merely wanted the four union
representatives removed from the company’s property.” (JA11
(emphasis added).) “In my opinion, I believe that the
Respondent wanted the union representatives removed from the
Respondent’s property that it mistakenly believed included the
shoulder of Prospect Road.” (Id.) Yet ImageFirst’s property
also “included” the curb, the grassy area, and the driveway
itself.
Significantly, the ALJ found that a driveway foray
occurred while the police were present and that this incursion
was witnessed by one of the police officers. According to the
ALJ, “Officer Stutzman also recalled one leafletting occasion
during his presence with a representative walking to the car.”
(JA12.) “The representatives would more likely than not had
entered into Respondent’s driveway while under his
observation.” (JA12 (citing JA437, JA438).) The NLRB asserts
that “whatever happened could not have served as the basis for
Cunningham’s call to police, as they were already on the scene.”
(NLRB’s Brief at 22 n.6.) While technically correct, this
subsequent incursion onto ImageFirst’s private property (which,
after all, did take place despite the presence of two police
officers) was consistent with the evidence and factual findings
showing that such incursions continued to occur both before and
after Cunningham’s call to the police. The NLRB also
dismisses the finding as “a statement by the administrative law
judge” and observes that “Stutzman was not certain where the
leafleting occurred ([JA437-JA438]), and he and Officer Villano
concluded the representatives were not trespassing.” (NLRB’s
Brief at 22 n.6.) The ALJ also noted that Officer Stutzman
indicated on direct examination that the union representative
was standing on the shoulder when the car was turning into the
21
driveway. However, the ALJ appropriately relied on the
“candid and open” testimony of a “neutral” observer that “was
consistent with the corroborated record.” (JA12 n.15.) “On
cross-examination by counsel for the Respondent, Officer
Stutzman did not recall where the representative was standing
when the driver was given a leaflet and did not recall which
direction the car was coming from. He only remembered a
representative walking over to the car to hand out a leaflet.”
(JA8 (citing JA437, JA438).) The ALJ therefore made a finding
of fact that the police officer observed a union representative
entering ImageFirst’s driveway to leaflet. See, e.g., 29 U.S.C. §
160(c) (requiring NLRB to use “preponderance of the
testimony” standard to decide whether person engaged in unfair
labor practice).
In its own decision, the NLRB did not reject this “foray”
finding or any of the other findings of fact rendered by the ALJ.
On the contrary, the NLRB majority purportedly affirmed and
adopted the ALJ’s findings. The NLRB likewise cannot simply
ignore relevant evidence. See, e.g., Universal Camera, 340 U.S.
at 488 (“The substantiality of evidence must take into account
whatever in the record fairly detracts from its weight.”);
Lakeland Health Care Assocs., LLC v. NLRB, 696 F.3d 1332,
1335 (11th Cir. 2012) (stating that the NLRB cannot ignore
relevant evidence detracting from its findings and that, when it
fails to consider evidence, its conclusions are less likely to be
based upon substantial evidence). Yet the NLRB failed to
address the evidence and factual findings establishing that the
threat to call the police and the subsequent call itself were
motivated by a broader concern about the company’s property
interests. Given this evidence and the findings of fact,
ImageFirst was clearly motivated by more than a desire, as the
majority put it, to “have the union representatives removed or
22
arrested because they were engaged in protected union
handbilling on the public shoulder of the highway adjacent to
the Respondent’s private property.” (JA1 n.1.) It was not
enough for the NLRB to state that the union representative had
already moved to the shoulder of the road and were standing on
the shoulder when the police arrived. At the very least, it should
have addressed Cunningham’s testimony that he saw the union
representatives continue to make forays onto ImageFirst’s
driveway to leaflet vehicles, Valentin’s admission that she and
the other representatives would occasionally enter the driveway
to distribute leaflets, and the ALJ’s own factual finding of a
driveway incursion witnessed by Officer Stutzman. The NLRB
majority stated that “[w]e do not rely on the judge’s finding that
the union representatives’ entry onto the Respondent’s private
property—by briefly standing on a grassy area and the
Respondent’s driveway—as a de minimis trespass.” (Id.) But,
under these circumstances, the ALJ’s “de minimis” trespass
analysis should not be dismissed so easily.
Because a reasonable fact-finder thereby would have had
to find that ImageFirst’s threat to call the police and the
subsequent call were motivated by a broader concern about its
property interests, we must turn to the objective component of
the “reasonable” concern inquiry. We believe that no
reasonable finder of fact could have failed to find that this
concern was reasonable because, even though ImageFirst was
wrong about the scope of its property rights over the shoulder, it
still possessed the right to contact the police on account of the
union representatives’ repeated and ongoing forays onto its
private property.
Initially, the NLRB has placed too much emphasis on
what was happening at the exact moment that Cunningham
23
threatened to summon or summoned the police or when the
police arrived. While certainly relevant, the notion of
reasonableness requires consideration of the totality of the
circumstances. See, e.g., NLRB v. Weingarten, Inc., 420 U.S.
251, 257 n.5 (1975) (indicating that reasonableness of discipline
is determined by objective standards under all of the
circumstances of the case). “Notably, the Board cites no cases
to support its view that the reasonableness of Cunningham’s
property rights concern is a ‘spot’ determination, divorced from
the Union’s trespassory conduct he had witnessed moments
prior to the call.” (ImageFirst’s Reply Brief at 4.) Such an
approach is particularly appropriate when the union
representatives’ trespassory conduct continued to occur despite
their interactions with Cunningham and the arrival of the police
officers themselves.
“ImageFirst is not disputing the NLRB’s limited finding
that Cunningham’s erroneous belief that the Company had a
property interest in the shoulder of the road was unreasonable,
and thus, a violation of the Act.” (ImageFirst’s Brief at 1 n.1.)
But it is also undisputed that ImageFirst possessed property
interests in the driveway as well as the grassy area and the curb,
allowing it to exclude the union representatives and others.
Counsel for the NLRB recognized at oral argument that both the
majority and Chairman Miscimarra agreed that the ALJ made a
mistake of law as to the propriety of “de minimis” trespasses.
As we have explained, the company, even though it was wrong
about the scope of its private property rights over the shoulder,
was clearly motivated by a broader concern over its property
interests implicated by the union representatives’ ongoing
property incursions. ImageFirst’s shoulder error (which has
resulted in additional uncontested findings of unfair labor
practices) should not be used to penalize it for contacting law
24
enforcement to vindicate its own property rights.
In Nations Rent, the NLRB concluded that the employer
summoned the police “based on a reasonable concern that the
pickets were trespassing on its property, monitoring a police
scanner, and following employees home.” Nations Rent, 342
NLRB at 181. The majority ruling conceded that the employer
unlawfully parked machinery outside its fence and erected
scaffolding on a public easement:
However, these facts do not establish that, in
contacting the police, the Respondent was
motivated by a purpose to harass rather than by its
reasonable concerns. There is no dispute that
trespassory picketing occurred: one of the pickets
admitted trespassing on the Respondent’s
property. Our colleague says that the Respondent
caused this trespass by moving a piece of
equipment. However, that does not negate the
fact of trespass. Further, there is no showing that
in making way for the Respondent’s equipment,
the picket’s sole option was to trespass. He could
have also driven away on Toledo Road and
returned once the equipment had been moved.
There is also no dispute that the trespass ended
shortly after Olinger called the police, reasonably
suggesting the possible use of a police scanner.
The pickets also admitted following employees as
they left the Elkhart facility. In light of that fact,
Olinger reasonably could be concerned that the
pickets might be following employees home.
This concern privileges the minimal intrusion of
asking Officer Smith merely to “look into” or
25
“ask” the pickets whether they were doing so.
Thus, for all of the foregoing reasons, we find that
the Respondent’s involvement of the police on
May 23 did not violate Section 8(a)(1).
In asserting a contrary view, our colleague
relies on the Respondent’s unlawful effort to
interfere with the pickets. However, that conduct
does not preclude the Respondent from calling
police authorities to report a reasonable concern
that local laws were being violated. A contrary
view would mean that a person who has violated
the Act is precluded from calling local police to
report local infractions. Our colleague denies that
this is his view. However, that denial is premised
on the asserted “spuriousness” of the
Respondent’s concern about the picketing. As set
forth above, that concern was far from spurious.
Id.; see also Great American, 322 NLRB at 20-21 (finding that,
although employer cannot assert property interest to justify
handbillers’ eviction from front of parking lot because it failed
to show that they were trespassing on its private property,
employer was justified in summoning police to evict because
handbillers were causing traffic to be blocked from entering
parking lot and to be backed up into street). In this proceeding,
ImageFirst’s mistake over its right to exclude from the shoulder
“does not negate the fact of trespass” on its private property.
Even though ImageFirst was wrong about the shoulder, “that
conduct does not preclude the Respondent from calling police
authorities to report a reasonable concern that local laws were
being violated” because the union representatives were making
repeated and ongoing forays onto its own property. Nations
26
Rent, 342 NLRB at 181.
IV.
We will grant in part and deny in part the NLRB’s
application for enforcement as well as ImageFirst’s cross-
petition for review. We will grant the application for
enforcement and deny the cross-petition for review as to the
NLRB’s findings that ImageFirst violated Section 8(a)(1) of the
NLRA by prohibiting union representatives from distributing
pro-union literature in the public right-of-way adjacent to
ImageFirst’s facility and by trying to remove the union
representatives from the public right-of-way. We will grant the
cross-petition for review and will deny the application for
enforcement as to the finding by the NLRB that ImageFirst
violated Section 8(a)(1) of the NLRA by threatening to summon
and summoning the police when the union representatives
refused to leave from the public right-of-way.
27