Weis Markets Inc v. NLRB , 265 F.3d 239 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WEIS MARKETS, INCORPORATED, t/a 
Mr. Z’s Food Mart,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD;
LOCAL 72, UNITED FOOD AND
 No. 98-1892
COMMERCIAL WORKERS,
Respondents.
NATIONAL RETAIL ASSOCIATION,
Amicus Curiae.

NATIONAL LABOR RELATIONS BOARD 
Petitioner,
v.
WEIS MARKETS, INCORPORATED, t/a
Mr. Z’s Food Mart,
Respondent,  No. 98-2017
and
LOCAL 72, UNITED FOOD AND
COMMERCIAL WORKERS,
Intervenor.

On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(4-CA-23525, 4-CA-23775, 4-CA-23880)
Argued: January 27, 1999
Decided: September 11, 2001
2 WEIS MARKETS, INC. v. NLRB
Before WIDENER and MURNAGHAN,* Circuit Judges,
and HAMILTON, Senior Circuit Judge.
The petition for review of Weis Markets is granted in part and denied
in part, and the petition of the Board for enforcement of its order is
granted in part, granted as amended in part, and denied in part. Judge
Widener wrote the opinion, in which Judge Hamilton concurred.
COUNSEL
ARGUED: Robert Lewis, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Woodbury, New York, for Weis Markets. Robert Paul
Joy, MORGAN, BROWN & JOY, Boston, Massachusetts, for
Amicus Curiae. Julie Brock Broido, Senior Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. Carey
Robert Butsavage, BUTSAVAGE & ASSOCIATES, P.C., Washing-
ton, D.C., for Intervenor. ON BRIEF: Roger S. Kaplan, Steven I.
Farbman, JACKSON, LEWIS, SCHNITZLER & KRUPMAN,
Woodbury, New York, for Weis Markets. Robert P. Morris, MOR-
GAN, BROWN & JOY, Boston, Massachusetts, for Amicus Curiae.
Frederick L. Feinstein, General Counsel, Linda Sher, Associate Gen-
eral Counsel, John D. Burgoyne, Acting Deputy Associate General
Counsel, Margaret A. Gaines, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. Marc
A. Stefan, BUTSAVAGE & ASSOCIATES, P.C., Washington, D.C.;
David Silberman, BREDHOFF & KAISER, Washington, D.C.; Jona-
than Hiatt, James Coppess, AFL-CIO, Washington, D.C., for Interve-
nor.
*Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
WEIS MARKETS, INC. v. NLRB 3
OPINION
WIDENER, Circuit Judge:
Petitioner Weis Markets, Inc. ["Weis"] appeals the June 12, 1998,
decision and order of the National Labor Relations Board [the
"Board"] charging Weis with violations of sections 8(a)(1), (3) and
(4) of the National Labor Relations Act [the "Act"] in conjunction
with various actions taken by Weis including Weis’ prohibition
against leafleting in store parcel pickup area and adjacent parking lots
by representatives of the United Food and Commercial Workers
Local 72 (the Union) and Weis’ dismissal of Thomas Cahill, a Weis
employee associated with the Union movement. The Board cross peti-
tions, seeking enforcement of its decision and order. We find substan-
tial evidence to affirm some of the Board’s determinations and orders
in this case and grant enforcement in those respects. We do not, how-
ever, agree with other parts of the order. Consequently, we grant in
part and deny in part the petition for review, and we vacate and
amend portions of the Board’s order.
I.
The Board’s notice with which Weis has been ordered to comply
is reproduced here, the parts being numbered for convenience and to
use as a reference point.*
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.
1) WE WILL NOT threaten that our stores will close and
tell you that you will lose your jobs if you were to select
United Food and Commercial Workers Local 72, or any
other union, as your exclusive bargaining representative.
2) WE WILL NOT tell you that it would be futile to
*Changes which appear in part I (2) and (7) indicate errors in the
Appendix which we have corrected.
4 WEIS MARKETS, INC. v. NLRB
select the Union to represent you because it could [do] noth-
ing for you.
3) WE WILL NOT try to prevent you from engaging in
discussions with union organizers by telling the organizers
not to bother you,
4) WE WILL NOT promise you a wage increase in order
to induce you into not supporting the Union, and
5) WE WILL NOT interfere with your right to wear
Union buttons to work.
6) WE WILL NOT order representatives of United Food
and Commercial Workers Local 72, who are engaged in
peaceful handbilling protected by the Act to leave the side-
walk, parcel pickup, and parking lot areas adjacent to our
stores located in Tunkhannock, Plains, and Scranton, Penn-
sylvania.
7) WE WILL NOT call the police to have the Union rep-
resentatives removed . . . [from our] property, so long as the
handbilling is conducted by a reasonable number of persons
and does not unduly interfere with the normal use of the
facilities or operation of businesses not associated with our
stores.
8) WE WILL NOT discharge, file a criminal complaint,
or otherwise discriminate against Thomas Cahill or any
other employee because he supports or engages in activities
on behalf of the Union.
9) 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.
10) WE WILL, within 14 days from the date of the Order,
offer Thomas Cahill full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
WEIS MARKETS, INC. v. NLRB 5
position, without prejudice to his seniority or any other
rights and privileges previously enjoyed.
11) WE WILL make Thomas Cahill whole for any loss
of earnings and other benefits resulting from his unlawful
discharge, less any net interim earnings, plus interest.
12) WE WILL reimburse him for any expenses he may
have incurred, with interest, resulting from the criminal
complaint unlawfully filed against him.
13) WE WILL, within 14 days from the date of the Order,
remove from our files any reference to Thomas Cahill’s dis-
charge, and petition the Pennsylvania State Police to remove
from its files any reference to the criminal complaint filed
against him, and
14) WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
II.
Weis’ corporate activities include operating a chain of Pennsylva-
nia grocery stores known as Mr. Z’s Food Marts it had purchased in
1992. Sometime around or before January 1995, Mr. Z’s employees
received a mailing from Union organizers claiming enhanced job
security in unionized stores and soliciting their support, and Weis
placed into effect a generally applicable no-solicitation policy in its
Mr. Z’s stores. Weis posted cardboard and then metal signs, first
inside the stores and then in the parking lots, informing both patrons
and potential solicitors of the policy, which forbade solicitation on the
store premises, the pickup area, and the adjacent parking lot.
The Union continued to seek to represent Mr. Z’s employees, and
in the contest that resulted, a number of events, significant to this liti-
gation, occurred. Included among them were a series of mandatory
employee meetings conducted by Mr. Z’s manager, Stanley Zuba,
directed at the potential Union representation; a series of attempts by
6 WEIS MARKETS, INC. v. NLRB
Union organizers to leaflet employees outside of and adjacent to Mr.
Z’s stores; and the discharge and claimed filing of a criminal com-
plaint against one Cahill, an employee, for allegedly threatening Mark
Adamsky, a Mr. Z’s assistant manager, by the mention of a book
received by Cahill’s brother which discussed the preparation of car
bombs. Upon hearing testimony regarding these incidents, the Admin-
istrative Law Judge determined that Weis violated the Act through
Zuba’s comments to employees at the mandatory meetings, through
the prohibition of Union leafleting, and through the dismissal of
Cahill following the alleged threat.
Weis has raised several issues in its petition for review. They
include: whether Weis could bar solicitation of its employees by
employees of the Union on its parcel pickup area, sidewalks and adja-
cent parking lots; whether substantial evidence supported the Board’s
finding that Weis unlawfully threatened to close one of its stores in
the event that employees there successfully unionized; whether sub-
stantial evidence supported the Board’s finding that Weis unlawfully
told its employees that choosing to unionize would be futile; whether
substantial evidence supported the Board’s finding that Weis unlaw-
fully promised its employees a pay increase; whether substantial evi-
dence supported the Board’s finding that Weis Market unlawfully
interfered with a conversation between Cahill and Union organizers;
whether substantial evidence supported the Board’s finding that Weis
unlawfully fired Cahill and filed criminal charges against him;
whether the ALJ erred by failing to exclude Cahill along with the
other witnesses from the proceedings following his testimony; and
whether substantial evidence supported the Board’s credibility deter-
minations because of bias of the ALJ.
III.
Many of the issues raised by Weis concern factual determinations
made by the Board. In reviewing the Board’s factual determinations,
we examine the record as a whole for substantial evidence to support
the Board’s findings. NLRB v. CWI of Maryland, Inc., 127 F.3d 319,
330 (4th Cir. 1997). Substantial evidence amounts to "more than a
scintilla, but less than a preponderance." Pirelli Cable Corp. v. NLRB,
141 F.3d 503, 514 (4th Cir. 1998). When faced with two fairly con-
flicting views, we must defer to the Board’s determination rather than
WEIS MARKETS, INC. v. NLRB 7
substitute a determination of our own. Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951); NLRB v. Daniel Construction Co.,
731 F.2d 191, 193 (4th Cir. 1984). We review the fact finding of the
Board in the light of that deferential standard.
A.
Weis claims that the General Counsel failed to present substantial
evidence on behalf of the Union’s claim that Zuba unlawfully threat-
ened to close one of Weis’ Mr. Z’s stores if the employees were to
unionize. See part I(1). In support of its conclusion, the Board relied
on the testimony of four witnesses: Cahill, Lou Burroughs, Tom Mil-
ler and Sue Bonavita, all of whom were employees of the store in
question at the time the comment was allegedly made. All four testi-
fied to the effect that Zuba threatened to close the store, eliminating
their jobs, in the event that the employees acquired Union representa-
tion. Despite the testimony of seven witnesses relied on by Weis in
this regard, the ALJ credited the General Counsel’s witnesses as
"spontaneous and detailed" and "not elicited through leading ques-
tions." The ALJ saw the witnesses and heard them testify, and the
record does not support a reversal of his credibility determination.
B.
Weis also claims that the General Counsel failed to present sub-
stantial evidence that Weis unlawfully commented on the futility of
any decision on the part of its employees to unionize. The ALJ relied
on the credited testimony of Cahill, Burroughs, Miller, and Bonavita
in concluding that Weis violated section 8(a)(1) of the Act by making
such comments. While an employer may even predict the precise
effect of Unionization, when coupled with the threat of plant closure,
the Board is justified in concluding, as here, that an unfair labor prac-
tice occurred. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969). See parts I(1) and (2).
C.
Weis further contends that there is insufficient evidence to support
the Board’s finding that Weis improperly promised to give its
8 WEIS MARKETS, INC. v. NLRB
employees a raise in hopes of persuading them against unionization.
See Part I(4). On this count, the ALJ relied on the testimony of Weis’
witnesses in concluding that, in the context of a mandatory employee
meeting convened to discuss the Union’s attempts to organize, Zuba
indicated to employees that he was "putting in for a raise." Zuba him-
self testified to this as did Davis, Dudek, and Saylor, all members of
store management.
Where Weis’ claims and the ALJ’s findings diverge, however, is
as to whether steps to implement the wage increase had been taken
prior to the meeting in question, increasing the likelihood that the
raise was merely a routine employee benefit. While Weis claims the
request was routine, the ALJ credited testimony that Zuba "was put-
ting in for a raise" to indicate future action and was intended to dis-
courage employees from joining the Union. This inference was
permissible, and we decline to upset it.
D.
Weis’ next contention regarding the Board’s failure to meet the
substantial evidence standard surrounds its finding that Weis unlaw-
fully interfered with a discussion between Cahill and Union organiz-
ers. Zuba testified that he approached Union organizers outside of the
store and instructed them not to bother Cahill, who was off duty at
the time. The testimony of Cahill and Chincola, a Union organizer,
confirms this scenario adding that Zuba asked Cahill if the organizers
were bothering him. Cahill replied that they were not. The scene took
place 10-15 feet from the entrance to the store.
Because Chincola and the other organizers were not business
invitees, Zuba had a right to do as he did. See part V, infra. The find-
ing of the Board in this respect is vacated.
E.
Another question raised on appeal is the content of the requirement
of the Board that Weis be ordered not to discharge Cahill or file a
criminal complaint or otherwise discriminate against Cahill because
he supports or engages in activities on behalf of the Union. See part
WEIS MARKETS, INC. v. NLRB 9
I(8). Weis’ defense to this order is that it did not file a criminal com-
plaint but only reported the matter to the police. While the record
shows that Weis did not, in fact, file a criminal complaint, it did claim
that it discharged Cahill because of conduct reported to the State
Police—the possession of a book on the making of bombs—and a
veiled threat that one of Weis’ employees took as true. While the
record supports that Cahill was discharged on account of his Union
activities, substantial evidence does not support that Weis filed a
criminal complaint, merely reporting the same to the State Police,
who apparently investigated and did not prosecute.
The facts which govern our decision on this point were accepted
by the ALJ as the correct premise, see Appendix, p. 924, although he
apparently did not believe them. Adamsky, a Weis supervisor, over-
heard Cahill tell Burroughs, a fellow employee, that he and his
brother had gotten a book on how to make a car bomb and described
what happens to the [human] body after such a bomb goes off. Adam-
sky then asked Cahill if Cahill was threatening him [Adamsky].
Cahill simply walked away without saying anything. Adamsky took
this as a threat.
On that state of facts, Weis cannot be faulted by reporting the mat-
ter to the State Police. While the State Police did not prosecute, we
do not believe Weis can be faulted because some of its supervisory
personnel reported the matter to the police.
That Cahill was discharged on account of his activities in behalf of
the union, indeed, is hardly contested on review, and the decision of
the ALJ declining to accept the car bomb affair as the company’s rea-
son for Cahill’s discharge is also supported by the record. But pre-
venting Weis from reporting the matter to the police goes too far
toward interfering with legitimate law enforcement, and we will
amend the Board’s order to give effect to this aspect of our decision.
F.
Another challenge that Weis makes to the Board’s fact findings
takes the form of a broad based opposition to the ALJ’s credibility
determinations accusing him of a general bias against all of Weis’
witnesses. "Determinations of credibility made by the ALJ and the
10 WEIS MARKETS, INC. v. NLRB
Board will not be disturbed by a reviewing court ‘absent extraordi-
nary circumstances.’" J. Huizinga Cartage Co., Inc. v. NLRB, 941
F.2d 616, 620-21 (7th Cir. 1991) (quoting NLRB v. Berger Transfer
& Storage Co., 678 F.2d 679, 687 (7th Cir. 1982)). We find no such
extraordinary circumstances here.
G.
Weis also claims that the opinion of the ALJ is flawed because the
ALJ was biased. In our opinion, this claim is not supported by the
record.
IV.
Weis also contends that the ALJ erred when it failed to exclude
Cahill from the proceeding during testimony about events which were
the subject of Cahill’s testimony. The General Counsel had appointed
Cahill as his representative to be present during the trial but declined
to exclude him as a discriminatee, according to Board precedent,
"during that portion of the hearing when another of General Counsel’s
or charging party’s witnesses is testifying about events to which the
discriminatees have testified, or will or may testify." Unga Painting
Corp., 237 N.L.R.B. 1306, 1307 (1978).
The General Counsel called Cahill as his first witness and Cahill
was not thereafter recalled. While Cahill did hear the testimony of the
subsequent witnesses, the claim of Weis that the ALJ’s credibility res-
olutions were compromised has not been demonstrated except for the
naked claim. No valid reason has been given to order a retrial and we
decline to do so. This is not to say that we approve the ALJ’s depar-
ture from Board precedent, for we do not.
V.
The last item that we discuss is whether the eviction of the organiz-
ers from the sidewalk, parcel pickup and parking lot areas adjacent to
Weis’ stores was lawful. See Part I (3)(6)(7).
As noted, about the first of the year of 1995, the union solicitation
of Weis employees began. About that time also, Weis imposed on the
WEIS MARKETS, INC. v. NLRB 11
three stores involved here its previous existing policy of no solicita-
tion, posting at first, on January 3rd, cardboard signs to that effect in
the stores and later on March 13 metal signs to that effect. The card-
board signs forbade solicitation on the premises and the outside signs
forbad solicitation in the parking lot. At the time the union organizers
were prevented from their handbilling, on January 23 and 24, the
Weis lease at Tunkhannock provided that Weis had the nonexclusive
right to use the common areas, meaning those outside the premises of
the store proper, for itself, its customers, agents and invitees. The
Scranton lease provides that Weis, its agents, servants, employees,
invitees and licensees shall be entitled to use for parking, loading,
ingress and egress and all other lawful purposes the parking areas,
such use to be in common with the other tenants. The Plains lease is
described in the opinion of the ALJ as providing that automobile
parking areas, driveways, entrances or exits, service drives, pedestrian
side walks and ramps are common areas for the general use in com-
mon with other tenants and agents, employees, customers and
invitees. So the conclusion of the ALJ that Weis held at most a nonex-
clusive easement over the common areas is correct as far as it goes,
but "at most" is unauthorized downgrading, and we do not consider
it.
At this point we underscore that it is admitted that the union had
other reasonable alternative means of communicating with Weis
employees. We further especially note that on March 13th and June
6th and 15, 1995, the three leases were amended so that Weis was
given the right to prevent trespassing, including handbilling, on the
sidewalks, parcel pickup and parking lot areas adjacent to all of the
stores involved in this case. This was well before the trial which was
in January 1996 and before the complaint was filed by the regional
director on July 27, 1995.
On these facts, the ALJ found that the no solicitation rule imposed
by Weis was valid under NLRB v. Babcock & Wilcox Co., 351 U.S.
108 (1956), but was only enforceable as to the areas under which
Weis had "exclusive control," meaning "the stores themselves."
Because the organizers had been evicted on January 23rd and 24th
before the changes of March 13th, June 6th and 15th giving Weis the
explicit right to forbid them access to the premises, he found Weis
had committed an unfair labor practice by their eviction. The question
12 WEIS MARKETS, INC. v. NLRB
which is before us is whether or not an unfair labor practice was com-
mitted as set out just above.
Whether Weis had this right is a matter of Pennsylvania real estate
law. In the case of Logan Valley Plaza, Inc. and Weis Markets, Inc.
v. Amalgamated Food Employees Union, Local 509, AFL-CIO, et al.,
227 A.2d 874 (Pa. 1967), a situation much the same as that present
here was presented to the Pennsylvania Court. Weis leased its store
from Logan Valley and it consisted of the store, a porch, and directly
in front of the porch a parcel pickup zone. The parking area was
owned by Logan and provided for the use of Weis, Sears Roebuck,
and future occupants of other store properties in the shopping center.
The employees of Weis were not union members and were not picket-
ing, but shortly after the store opened, four pickets from Local 590
appeared proclaiming that Weis was non union, that its employees
were not receiving union wages or other union benefits, and appealed
to friends of the pickets and members of organized labor not to
patronize Weis but to patronize other stores which had union employ-
ees. At Weis’ instance, the Court of Common Pleas of Blair County
issued a preliminary injunction restraining the defendants from pick-
eting on the supermarket’s porch, in the pickup zone, on the mall
parking lot areas, or the entrances thereto and the exits therefrom. The
Court found as a fact in that case that the Weis and Sears lessees
"may be said to have reciprocal rights or easements therein [the com-
mon areas] for the use of their business invitees and employees."
Logan Valley Plaza, Inc. and Weis Markets, Inc. v. Amalgamated
Food Employees Union, Local 509, No. 1915, Court of Common
Pleas of Blair County. On appeal the Supreme Court of Pennsylvania
affirmed in Logan Valley Plaza, cited above. The Court construed the
right of Weis to exclude stating:
The invitation to the public, extended by the operation of the
parking areas and parcel pickup areas was limited to such of
the public who might benefit Weis’ and Logan’s enterprises,
including potential customers as well as the employees of
the shopping center concerns.
227 A.2d at 877.
The Court noted in addition that Weis had taken special precau-
tions against an indiscriminate use of its property and that a general
WEIS MARKETS, INC. v. NLRB 13
invitation to certain classes of persons to use the premises and the
exclusion of certain other classes of persons from such use was fully
consistent with the right of a property owner to the use and enjoyment
of his property.
In affirming the Court of Common Pleas the Pennsylvania Court
further stated that:
While both Weis and Logan granted to a segment of the
public certain rights in connection with the use of their prop-
erty, such cession of rights did not constitute a grant of all
their rights to all the public. To hold that these property
owners solicited the use of their property by persons who
were attempting to discourage the public from patronizing
the store facilities lacks any basis in law or common sense.
These pickets, even though engaged in picketing of a peace-
ful nature, had no right or authority whatsoever to utilize the
private property of Weis and/or Logan for such picketing
purposes; such use constituted a trespass which very prop-
erly was restrained. (italics added)
227 A.2d at 389.
The United States Supreme Court then granted a writ of certiorari
and reversed the Supreme Court of Pennsylvania, holding that the
Logan Valley Mall was the functional equivalent of a "business
block" for First Amendment purposes, so it should have been treated
in the same manner. That opinion, however, was overruled in Hud-
gens v. NLRB, 424 U.S. 507 (1976), which held that the owner of a
shopping center could prevent picketing on his private property on
account of a strike of the employees of one of the tenants in the shop-
ping center. That overruling was recognized in Flagg Bros. Inc. v.
Brooks, 436 U.S. 149 (1978), in which the Court decided that it had
adopted Justice Black’s position in Logan which was that in order to
treat private property as public, the private property had to take on
"all the attributes of a town." (italics in original). From Justice
Black’s dissent in Logan Valley, 391 U.S. at 332, quoted in Flagg
Bros., 436 U.S. at 159.
Thus, the union organizers in this case not being members of the
public who might benefit Weis’ enterprise, including potential cus-
14 WEIS MARKETS, INC. v. NLRB
tomers and employees, their uninvited intrusion on the private prop-
erty, the easement of Weis, was unlawful under the real estate law of
Pennsylvania, which prevails here.
We should add that the reasoning of Justice Marshall in the dissent-
ing opinion in Hudgens is consistent with that of the Pennsylvania
Court:
It is irrelevant, in my view, that the property was owned by
the shopping center rather than by the employer. The nature
of the property interest is the same in either case.
Hudgens v. NLRB, 424 U.S. 507, 525, 532, n. 5, Justice Marshall, dis-
senting, (1976).
Those aspects of the order which require Weis to renounce the
authority to prevent handbilling by the union organizers are not
enforced.
VI.
By reference to part I of this opinion, we indicate which parts of
the Board’s order are enforced, enforced as amended or denied.
Enforced:
Part I (1), (4), (5), (9), (10), (11), (14)
Enforced as amended:
Part I (2) - Amended only by adding to the order "when coupled
with the threat of plant closure."
Part I (8) - Amended only by removing the words "file a criminal
complaint."
Part I (13) - Amended only by removing the words "and petition
the Pennsylvania State Police to remove from its files any reference
to the criminal complaint filed against him."
WEIS MARKETS, INC. v. NLRB 15
Enforcement Denied:
Part I (3), (6), (7), (12)
THE PETITION FOR REVIEW IS ACCORDINGLY
GRANTED IN PART AND DENIED IN PART, AS IS
THE PETITION OF THE BOARD FOR ENFORCEMENT,
AND THE ORDER OF THE BOARD IS AMENDED