United Food & Commercial Workers International Union Local 400 v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 29, 1999 Decided August 22, 2000

No. 98-1422

United Food and Commercial Workers International Union

Local 400, AFL-CIO,

Petitioner

v.

National Labor Relations Board,

Respondent

Farm Fresh Acquisition, Inc.,

Intervenor

Consolidated with

98-1479

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

Carey R. Butsavage argued the cause for petitioner. With

him on the briefs was James B. Coppess.

Steven B. Goldstein, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Linda Sher, Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and David

Habenstreit, Supervisory Attorney. John D. Burgoyne, Dep-

uty Associate General Counsel, entered an appearance.

Michael P. Oates argued the cause for intervenor. With

him on the brief was A. Neal Barkus.

Before: Williams, Sentelle, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: The United Food and Commercial

Workers International Union, Local 400, AFL-CIO ("the

Union") filed unfair labor practice charges with the National

Labor Relations Board in connection with an organizing drive

at Farm Fresh grocery stores in the Tidewater area of

Virginia.1 The Board determined that Farm Fresh had

committed a number of unfair labor practices, and the compa-

ny has not petitioned for review of that determination. The

Board declined, however, to find unfair labor practices in two

circumstances as to which the Union has petitioned for re-

view: the ejection of nonemployee organizers from the snack

bar at one Farm Fresh store, and the exclusion of nonemploy-

ee organizers from the sidewalk in front of four other stores.

We consider those matters below.

I

We begin with the snack bar incident, which itself began

with a sidewalk incident. Farm Fresh operates a grocery

store on Princess Anne Road in Virginia Beach, Virginia.

The store operates under a lease that covers both the build-

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1 Farm Fresh operated the stores under various names including

Farm Fresh, Nick's, and Food Carnival. Farm Fresh was subse-

quently acquired by FF Acquisition, L.L.C. For ease of reference

we will refer to the employer and all of its stores as "Farm Fresh."

ing and its adjacent sidewalk. On May 1, 1990, James Green

and Dudley Saunders, Union organizers not employed by

Farm Fresh, were outside the Princess Anne Road store

soliciting employee support. They stood approximately 30

feet from the entrance. The store's manager, Nat Harlow,

approached the two organizers and instructed them to move

50 feet away in accordance with a Farm Fresh policy barring

all solicitation within 50 feet of store entrances. The organiz-

ers refused to move, and Harlow summoned the police. The

police told the organizers that if they did not move, Harlow

could obtain warrants for their arrest for trespass. When

Harlow left to obtain the warrants, the organizers departed.

A magistrate issued trespass warrants the next day.2

On May 3, 1990, an attorney for Farm Fresh sent the

Union a letter "regarding the recent activities of organizers

for UFCW Local 400 at stores owned and operated by Farm

Fresh." The letter advised that, under company policy, "[a]ll

outside solicitors must remain no closer than 50 feet from

public entrances to the stores," and that "[t]he snackbar or

cafeteria facilities may be used only in ways consistent with

their use by members of the public generally." The letter

also specifically noted that warrants accusing Saunders and

Green "of trespassing have been issued by a magistrate for

the City of Virginia Beach," and requested "that you advise

these men that if they again appear on the property of the

store on Princess Anne Road they will be considered tres-

passers and will be treated as such." J.A. at 137-38.

On May 14, Green and Saunders returned to the Princess

Anne Road store to eat lunch at its snack bar. Store

manager Harlow told them "that in light of the pending

warrants issued on May 2, he did not want them anywhere in

the store until the matter was resolved." Farm Fresh, Inc.,

326 N.L.R.B. No. 81, at 2 (1998). Harlow permitted the

organizers to finish their meal, and thereafter they departed.

The Union subsequently filed charges alleging that Farm

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2 The authority of the Princess Anne Road store to exclude the

organizers from its sidewalk has not been challenged in this court.

See infra Part II.

Fresh had violated section 8(a)(1) of the National Labor

Relations Act ("NLRA"), 29 U.S.C. s 158(a)(1), by ordering

the organizers to leave the snack bar.3

At the time of the incidents in question, the right of access

by nonemployee union organizers to employers' public snack

bars was governed by the NLRB's opinion in Montgomery

Ward & Co., 288 N.L.R.B. 126 (1988), rev'd on other grounds,

904 F.2d 1156 (7th Cir. 1990). In Montgomery Ward, the

Board held that "solicitation in restaurants cannot be prohib-

ited when ... the conduct of the nonemployee organizer is

consistent with the conduct of other patrons of the restau-

rant." Id. at 127.4 Before the Union's case against Farm

Fresh was decided, however, the Supreme Court issued its

decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).

Lechmere held that an employer is not required to open its

property to nonemployee organizers unless the union can

show that it has no other reasonable means of communicating

with the employees, or that the employer's access rules

discriminate against union solicitation. See id. at 535; see

also Lucile Salter Packard Children's Hosp. v. NLRB, 97

F.3d 853, 857 (D.C. Cir. 1996).

In the instant case, the NLRB found that Farm Fresh had

excluded Saunders and Green from the snack bar on the basis

of an across-the-board policy banning solicitation by any

outsider at the facility. The Board then held that although

such a no-solicitation ban would have been unlawful under

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3 Section 7 of the NLRA, 29 U.S.C. s 157, guarantees employees

"the right to self-organization, to form, join, or assist labor organi-

zations, ... and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection."

Section 8(a)(1) makes it an unfair labor practice "to interfere with,

restrain, or coerce employees in the exercise of the rights guaran-

teed" by section 7. Id. s 158(a)(1).

4 See Farm Fresh, Inc., 301 N.L.R.B. 907, 928 (1991); Dunes

Hotel & Country Club, 284 N.L.R.B. 871 (1987); Harold's Club, 267

N.L.R.B. 1167, 1167 (1983), enforced, 758 F.2d 1322 (9th Cir. 1985);

Marshall Field & Co., 98 N.L.R.B. 88, 94 (1952), enforced as

modified, 200 F.2d 375 (7th Cir. 1952).

Montgomery Ward, that decision could not survive Lechmere.

Board Members Fox and Liebman dissented. They argued,

first, that the viability of Montgomery Ward was not at issue

in this case because the union organizers had not been

ejected on the basis of a no-solicitation policy, but rather

because there were outstanding trespass warrants against

them. Second, they argued that Montgomery Ward did

survive Lechmere because it was grounded in the anti-

discrimination exception to the employer's right to exclude.

Agreeing with the dissenters as to the first point, we have no

occasion to address the second.

This court must uphold a decision of the Board with respect

to a question of fact "if it is supported by substantial evidence

on the record considered as a whole." 29 U.S.C. s 160(e);

see Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488

(1951). In its eagerness to address the Lechmere issue,

however, the Board's majority conjured a factual situation as

to which there is no substantial evidence. Indeed, we can

find no evidence at all that Farm Fresh ejected Green and

Saunders on the basis of a company policy barring solicitation

in the snack bar. Rather, all of the evidence, including Farm

Fresh's own frank admission, indicates that Green and Saun-

ders were excluded simply because of the outstanding tres-

pass warrants. See Farm Fresh Br. at 12 n.5 ("[T]he two

organizers excluded from the snackbar were asked to leave

because of outstanding trespass warrants issued by the City

of Virginia Beach.") (emphasis added).

When manager Harlow confronted Green and Saunders at

the snack bar, he gave one and only one explanation for

asking them to leave: the existence of the trespass warrants.

See J.A. at 660 (testimony of Harlow); id. at 578 (testimony

of Green); id. at 636 (testimony of Saunders). That explana-

tion is consistent with Farm Fresh's May 3 letter, which

specifically "requested that you advise these men that if they

again appear on the property of the store on Princess Anne

Road they will be considered trespassers and will be treated

as such." J.A. at 138. It is also consistent with the absence

of any evidence that Green and Saunders were soliciting at

the snack bar on May 14; the only evidence is that they were

eating lunch.

Nor is there any support for the proposition that Farm

Fresh had a no-solicitation policy with respect to the snack

bar. To the contrary, in their brief before the Board, Farm

Fresh stated that it "permitted Union organizers to engage in

lawful solicitation in the snack bars which Farm Fresh oper-

ated in many of the stores in question." Farm Fresh, Inc.,

326 N.L.R.B. No. 81, at 10 (Members Fox and Liebman

dissenting) (quoting Farm Fresh Br. in Support of Cross

Exceptions, at 7). This is confirmed by specific evidence that

Union organizers had previously engaged in solicitation in

Farm Fresh's snack bars without interference from the com-

pany. See id. at 10 n.4. Indeed, Green and Saunders had

themselves frequently solicited employees at the Princess

Anne Road snack bar prior to May 3. See id. As the

Board's Administrative Law Judge (ALJ) found, the ejection

of Saunders and Green was "an exception to [Farm Fresh's]

general 'hands off' approach to nondisruptive organizational

conduct on the part of Union representatives inside the

stores." Id. at 22 (ALJ Decision).

The NLRB did not dispute this evidence, acknowledging

that Farm Fresh's policy may previously have been "more

lenient." Farm Fresh, Inc., 326 N.L.R.B. No. 81, at 3. The

Board concluded, however, that whatever Farm Fresh's earli-

er policy had been, the May 3 letter made clear it had a no-

solicitation policy as of that date. In reaching this conclusion,

the Board relied on two paragraphs of the letter. Paragraph

1 stated that all outside solicitors must remain "no closer than

50 feet from public entrances." Paragraph 3 stated that

snack bars could be used "only in ways consistent with their

use by members of the public generally." The Board con-

cluded that the first paragraph controlled, and was intended

to ban solicitation not just from the portion of the sidewalk

that was within 50 feet of the entrance, but from the entire

store--inside and out.

The Board reached this conclusion notwithstanding that

paragraph 3 did not state that solicitation was banned in the

snack bar, whether by organizers or "the public generally."

The weakness of the Board's finding is further illuminated by

the employer's own rejection of the intent the Board attrib-

uted to it. At oral argument, counsel for intervener Farm

Fresh candidly stated that the May 3 letter did not represent

a no-solicitation policy, but rather was intended to be consis-

tent with Montgomery Ward--which required employers to

permit snack bar solicitation as long as organizers behaved in

a manner consistent with that of the public in general. That

intent is hardly surprising. At the time the letter was

written, Montgomery Ward was the governing law and para-

graph 3 mirrors its language. Compare Letter p 3 (J.A. at

137) (stating that snack bar "may be used only in ways

consistent with their use by members of the public general-

ly"), with Montgomery Ward, 288 N.L.R.B. at 127 (holding

that exclusion from snack bar is improper when "the conduct

of the nonemployee organizer is consistent with the conduct

of other patrons of the restaurant").

The NLRB rejected the unfair labor practice charge

against Farm Fresh based on its factual finding that the

company expelled the two organizers because they were

violating the company's no-solicitation policy, and based on its

legal conclusion that such a policy was lawful. Because there

is no substantial evidence to support the Board's factual

finding, its ultimate disposition cannot stand. Hence, we

have no occasion to consider whether the Board's legal con-

clusion--that employers may ban all solicitation from their

public snack bars--is correct. Nor do we have reason to

consider whether the actual ground upon which Farm Fresh

ejected the organizers--the existence of outstanding trespass

warrants--would have sufficed to support dismissal of the

unfair labor practice charge. Because this court "cannot

sustain agency action on grounds other than those adopted by

the agency in the administrative proceedings," Macmillan

Pub. Co. v. NLRB, 194 F.3d 165, 168 (D.C. Cir. 1999) (citing

SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)), we reverse the

Board's decision and remand the case to the agency for

further consideration.

II

The second issue before us concerns Farm Fresh's policy of

barring solicitation on the sidewalks in front of nine of its

stores. All nine stores were situated in strip malls with

common areas and co-tenants. Each store was operated

under lease, with Farm Fresh possessing varying rights

and/or obligations with respect to the sidewalks. Notwith-

standing the variances in the leases, Farm Fresh enforced a

common policy at each store: No solicitation of any kind was

permitted within 50 feet of the public entrance. At each of

the nine stores involved, nonemployee organizers were in-

formed of the policy and, when they refused to comply, were

threatened with legal action or arrested. The Union filed

unfair labor practice charges against each store, contending

that Farm Fresh violated NLRA s 8(a)(1) by enforcing the

policy on sidewalks as to which they lacked sufficient proper-

ty interests to exclude nonemployee organizers.

All parties agree that the lawfulness of the employer's

exclusion of nonemployee union representatives in this situa-

tion is governed by the NLRB's decision in Indio Grocery

Outlet, 323 N.L.R.B. 1138, 1141 (1997), enforced, 187 F.3d 108

(9th Cir. 1999). Indio reaffirmed that for exclusion to be

lawful, "there is a threshold burden on the [employer] to

establish that it had, at the time it expelled the Union

representatives, an interest which entitled it to exclude indi-

viduals from the property." Indio, 323 N.L.R.B. at 1141

(internal quotation omitted).5 To determine whether the

employer had such a property interest, the Board "look[s] to

the law that created and defined the [employer's] property

interest, which is state, rather than Federal, law." Id.; see

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5 See O'Neil's Markets v. United Food and Commercial Workers

Union, 95 F.3d 733 (8th Cir. 1996), enforcing sub nom. Food for

Less, 318 N.L.R.B. 646, 649-50 (1995); Johnson & Hardin Co., 305

N.L.R.B. 690, 691, 695 (1991), enforced in pertinent part, 49 F.3d

237 (6th Cir. 1995); Polly Drummond Thriftway Inc., 292 N.L.R.B.

331, 332 (1989), enforced, 882 F.2d 512 (3rd Cir. 1989); Barkus

Bakery, 282 N.L.R.B. 351, 354 (1986), enforced, 833 F.2d 306 (3rd

Cir. 1987).

also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21

(1994) ("The right of employers to exclude union organizers

from their private property emanates from state common

law...."). If the employer is unable to meet the burden of

demonstrating the requisite property interest, its exclusion of

union agents from the area constitutes a violation of section

8(a)(1). See Indio, 323 N.L.R.B. at 1141; cases cited supra

note 5.

Applying this test, the ALJ found that Farm Fresh had not

committed unfair labor practices at two of the stores, those at

Princess Anne Road (discussed in Part I above) and High

Street, because the company possessed sufficient property

interests in the appurtenant sidewalks to exclude the organiz-

ers. In both cases, Farm Fresh had expressly leased both

the stores and the sidewalks at issue. See Farm Fresh, Inc.,

326 N.L.R.B. No. 81, at 16, 21 (ALJ Decision). The NLRB

affirmed the ALJ as to these stores, and the Union has not

appealed.

As for the remaining stores, the ALJ concluded that Farm

Fresh lacked sufficient property interests to exclude the

organizers and therefore had committed unfair labor prac-

tices by ejecting them. Farm Fresh appealed to the Board,

which affirmed the ALJ with respect to three of the stores.

In each of those three cases, the sidewalks were not leased to

Farm Fresh but rather remained in the exclusive control of

the landlord. Nor did those leases impose upon Farm Fresh

any obligations with respect to maintenance of the sidewalks.

The Board concluded that the company had no right to eject

the organizers from the sidewalks of those three stores, and

that the ejections therefore constituted unfair labor practices.

Farm Fresh has not sought review of those determinations.

This leaves the four stores that are the subject of this case:

the Colonial Avenue, Shore Drive, Merrimack Trail, and

Victory Boulevard stores. Although the lease agreements for

these stores do not--with one possible exception noted be-

low--lease the sidewalks to Farm Fresh, they do impose upon

the tenant company an obligation to clean and maintain the

sidewalks. The ALJ concluded that this obligation was insuf-

ficient to entitle Farm Fresh to expel the organizers from the

property. The Board disagreed, concluding that the mainte-

nance obligations were sufficient to entitle Farm Fresh to

invoke the Virginia trespass statute. The Union petitions for

review.

As the NLRB held in Indio, whether an employer has a

sufficient property interest to exclude Union organizers is a

question of state property law: in this case, the law of the

Commonwealth of Virginia. As the NLRB has no special

expertise in interpreting Virginia law, we review the question

de novo. See Cellwave Telephone Services L.P. v. FCC, 30

F.3d 1533, 1537 (D.C. Cir. 1994) (reviewing de novo FCC's

interpretation of state law); see also NLRB v. Better Build-

ing Supply Corp., 837 F.2d 377, 378 (9th Cir. 1988) (giving no

deference to Board's interpretation of bankruptcy law).

The Virginia trespass statute upon which the Board relied

states as follows:

If any person without authority of law goes upon or

remains upon the lands, buildings or premises of another,

or any portion or area thereof, after having been forbid-

den to do so, either orally or in writing, by the owner,

lessee, custodian or other person lawfully in charge

thereof ... he shall be guilty of a Class 1 misdemeanor.

Va. Code Ann. s 18.2-119 (Michie 1996) (emphasis added).

Under the statute, it is clear that the owner or lessee of the

sidewalks had the authority to exclude the organizers. But

there is no dispute (with one possible exception) that Farm

Fresh was not the owner or lessee. The NLRB relied

instead on the statutory language authorizing a "custodian or

other person lawfully in charge" to bar entry. The Board

concluded that the provisions of the lease agreements requir-

ing Farm Fresh to keep the sidewalks clean were sufficient to

place the company within those categories. We disagree.

The Colonial Avenue lease agreement is typical. In the

relevant paragraph, Farm Fresh agreed to "keep the demised

premises, entryways and sidewalks adjacent to said premises

clean and free from obstruction, rubbish, dirt, snow and ice."

Lease p 14 (J.A. at 381-82). Although this provision may give

Farm Fresh the power to remove "rubbish, dirt, snow and

ice," Union organizers do not fall within those categories.

Nor may they be categorized as "obstruction[s]"--there is no

evidence that they obstructed the entrances in any way.

It is true that the leases' maintenance provisions might

permit Farm Fresh to be characterized as a "custodian" in

the sense of "janitor," but there is no indication that Virginia

law permits janitors to file trespass actions against citizens

who stand on Virginia sidewalks. Rather, the canon of

ejusdem generis ("of the same kind or class") counsels that

we read the phrase "custodian or other person lawfully in

charge" as indicating that "custodian" means a person who is

"in charge," or is "in control." See Hall v. Commonwealth,

49 S.E.2d 369, 371 (Va. 1948) ("The only purpose of this law is

to protect the rights of the owners or those in lawful control

of private property."). And there is no evidence in the leases

that Farm Fresh was intended to have control over the

appurtenant sidewalks. To the contrary, each lease makes

clear that with respect to the sidewalks, Farm Fresh has

nothing more than a right to "the use in common with" the

other co-tenants. J.A. at 373 p 2 (Colonial Ave.).6 Indeed,

with respect to at least one of the stores, Merrimack Trail, it

is quite clear that Farm Fresh does not have control, as the

lease expressly states that the "sidewalks ... shall be at all

times subject to the exclusive control and management of

landlord." J.A. at 523.7 Farm Fresh's mere shared right of

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6 See J.A. at 523 (Merrimack Trail) (granting use of the sidewalks

in common with other tenants of landlord in the shopping center);

J.A. at 196 (Shore Drive) ("All portions of the shopping center land

... not covered by buildings, shall be common area equally avail-

able and shared in common by all tenants of the shopping center,

their employees, agents, customers and invitees.").

7 NLRB counsel contend that we must ignore this paragraph of

the Merrimack Trail lease because the Union did not specifically

call it to the Board's attention. But the entire lease was in

evidence, the Board expressly relied on its provisions, and the

Union argued that taking the lease as a whole Farm Fresh lacked

the right to control the sidewalk. See J.A. at 690-91 (Union Br. in

use strongly suggests that it lacks the power to exclude those

it dislikes from the shopping center's common sidewalks.

Indeed, to permit Farm Fresh to eject Union organizers

would be to permit it to expel Salvation Army bell-ringers,8 a

power we are loathe to assume a shopping center landlord

intended to convey to its tenants.

The Board based its contrary conclusion on its view that,

under the statute, "it is clear that the right to invoke the

trespass statute is not restricted to the owner or lessee of the

property; rather it extends broadly to a 'custodian' or 'person

lawfully in charge' of the property." Farm Fresh, Inc., 326

N.L.R.B. No. 81, at 5. This is not analysis; it is mere

restatement of the statutory language. Yes, the statute does

not restrict its scope to owners or lessees; it also extends to

custodians and others lawfully in charge. However, that fact

does not cast light on the definition of the latter category, or

justify the Board's description of the statute as "broad" and

"expansive." Id. The NLRB cited only a single Virginia

case in support of its position, Hall v. Commonwealth, 49

S.E.2d 369 (Va. 1948). But Hall says nothing more than that

"[t]he only purpose of this law is to protect the rights of the

owners or those in lawful control of private property." Id. at

371. If anything, this quotation supports the conclusion,

drawn above, that the statutory term "custodian" was simply

intended as a synonym for one "in lawful control." Nor is the

analysis advanced by learning that, unsurprisingly, the stat-

ute's "underlying purpose" is "protecting private property

rights." Farm Fresh, Inc., 326 N.L.R.B. No. 81, at 5. The

question at issue is whether Farm Fresh has a property right

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Answer to Farm Fresh's Exceptions). That is sufficient to take the

issue out of NLRA s 10(e), 29 U.S.C. s 160(e), which precludes a

reviewing court from considering an objection that has not been

urged before the Board.

8In fact, if Farm Fresh were permitted to exclude the organizers,

it could be required to exclude other solicitors, including in some

circumstances charitable solicitors, in order to avoid a charge of

anti-union discrimination. See Lucile Salter Packard Children's

Hosp. v. NLRB, 97 F.3d 583, 587 & n.4 (D.C. Cir. 1996).

that gives it the power to exclude others from the premises

involved.

In its intervenor brief, Farm Fresh offers another ground

for sustaining the Board's decision. Although it is unable to

find a Virginia case on point, it urges us to adopt the District

of Columbia Court of Appeals' interpretation of that jurisdic-

tion's unlawful entry statute. In Woll v. United States, 570

A.2d 819 (D.C. 1990), the Court of Appeals concluded that a

clinic located in an office building could invoke the statute to

eject protesters, who were blocking patients' access, from an

interior corridor shared in common with the landlord and

other tenants. Farm Fresh argues that the Virginia statute

should be read the same way, and hence should permit it to

expel the Union organizers from the sidewalks it shares with

other shopping center tenants.

We do expect that Virginia courts would recognize some-

thing akin to an implied easement of necessity on behalf of a

lessee to ensure access to its leased property over the proper-

ty of the landlord.9 The existence of such an easement may

be established if its advocate can show, inter alia, that "the

easement is reasonably necessary for the enjoyment of the

parcel" and that "other reasonable means of ingress and

egress are lacking." Cartensen v. Chrisland Corp., 442

S.E.2d 660, 663 (Va. 1994); see Russakoff v. Scruggs, 400

S.E.2d 529, 532 (Va. 1991). This requires "more than simple

convenience," and "generally will depend upon the circum-

stances of the particular case." Russakoff, 400 S.E.2d at 533

(internal quotation omitted). Moreover, where an easement

is implied by necessity, its scope "must reflect the necessity

which justifies the easement's existence." 7 Thompson on

Real Property 466 (1994); see Hudson v. American Oil Co.,

152 F. Supp. 757, 765 (E.D. Va. 1957) (stating that "the

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9 Cf. Cartensen v. Chrisland Corp., 442 S.E.2d 660, 663 (Va. 1994)

(recognizing that implied easement can be established for one land

owner over property of another originating from common grantor);

Keen v. Paragon Jewel Coal Co., 122 S.E.2d 543, 546, 547 (Va. 1961)

(finding implied easement for lessee over land owned by entity that

granted fee to lessee's landlord).

circumstances for which the implication arises, are to be

looked to in order to ascertain the scope and extent of the

easement") (internal citation omitted). Since "there is no

express agreement, courts will be careful in interpreting how

far the use of such an easement may go." 7 Thompson on

Real Property 466.

We are unable to see why the power to expel peaceful

organizers from an adjacent sidewalk is reasonably necessary

for the use of leased property. To the contrary, both the

courts and the Board itself have repeatedly rejected the

notion that easements of access entitle employers to exclude

union representatives from adjacent common areas. See, e.g.,

O'Neil's Markets v. United Food and Commercial Workers

Union, 95 F.3d 733, 739 (8th Cir. 1996) (holding that under

Missouri law, neither a "non-exclusive easement of ingress,

egress, and parking," nor "the exercise of control over the

sidewalk and parking areas by repairing and maintaining the

property," authorize employer to exclude organizers from

sidewalk).10 We have unearthed no Virginia case in which an

easement was implied, or the scope of an easement defined,

by reference to anything other than the extent of the need for

access.11 Indeed, even in Woll, the only case cited by Farm

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10 See Weis Markets, 325 N.L.R.B. 871, 883-85 (1998) (holding

under Pennsylvania law that employer's nonexclusive right to use

common areas is insufficient to exclude union picketers from side-

walk); Food for Less, 318 N.L.R.B. 646, 649-50 (1995) (holding

under Missouri law that employer failed to demonstrate that its

"maintenance of the parking lot transformed the easement interest

set forth in the lease into a more substantial property right

providing the legitimate power to expel"), enforced in pertinent

part sub nom., O'Neil's Markets, 95 F.3d at 739; Johnson &

Hardin, 305 N.L.R.B. at 690, 694-95 (holding under Ohio law that

possessor of access easement cannot expel organizers unless they

interfere with ingress or egress); Giant Food, 295 N.L.R.B. 330,

332 (1989) (same as Weis Markets).

11 See, e.g., Carter v. County of Hanover, 496 S.E.2d 42, 46 (Va.

1998) ("[A]n easement by necessity will not be found if there is

another way of access, although less convenient and which will

involve some labor and expense to develop."); Russakoff, 400

Fresh in support of its argument, the D.C. Court of Appeals

found that the protesters who were expelled had "impeded

patients seeking to enter and leave" the clinic. 570 A.2d at

820; see also O'Neil's Markets, 95 F.3d at 739 (holding that

employer cannot exclude handbillers unless they interfere

with the right of employer, employees and customers to use

the easement property). But there is nothing in the facts of

this case to support a claim that the right to eject the

organizers was reasonably necessary to effectuate an implied

easement of access. There was no allegation that the Union's

representatives impeded access to the stores or that they

interfered in any way with Farm Fresh's obligation to clean

and maintain the sidewalks.

Accordingly, we find that Farm Fresh lacked the requisite

property interest to exclude the organizers from those side-

walks not covered by its leases. Although we reach this

conclusion without reference to any burdens of proof, we note

that the applicable burdens further confirm our analysis.

Under Indio, it is the employer that has the "threshold

burden ... to establish that it had ... an interest which

entitled it to exclude individuals from the property." 323

N.L.R.B. at 1141. Lacking any language in its lease agree-

ments or any case law regarding an implied easement theory

that would support a right to exclude the organizers, Farm

Fresh is unable to meet that burden. Moreover, under

Virginia law, the burden is also on the advocate of an implied

easement to establish "by clear and convincing evidence" that

the easement is reasonably necessary for the enjoyment of its

property--a determination that depends on "the facts and

circumstances" of each case. Cartensen, 442 S.E.2d at 663-

64. Hence, even if Virginia law would in some circumstances

support an implied easement of the scope urged by Farm

__________

S.E.2d at 532-33 (finding easement for lakeside land owner without

which it could not attain access to lake); Keen, 122 S.E.2d at 546

("[T]he only way by which defendant can reach the public highway

with coal mined from its leased land is ... over [plaintiff's] land.");

see also Cartensen, 442 S.E.2d at 663-64 (holding that lack of

vehicular access alone does not necessarily justify implication of

easement for the enjoyment of a parcel of land).

Fresh, the company has failed to meet its burden of proof in

this case because it has offered no evidence whatsoever to

support the need for an easement of that scope at the four

stores at issue here.

Finally, we note that although the Board wrongly conclud-

ed that Farm Fresh had the requisite property interest based

solely on the maintenance provisions of its leases, the lease of

one of the four stores appears to grant Farm Fresh the lease

to the sidewalk itself.12 The Board may, of course, consider

this point on remand.

III

We conclude that the NLRB's determination that Union

organizers were lawfully ejected from the snack bar of one of

Farm Fresh's stores was based upon a factual finding that is

unsupported by substantial evidence. We further conclude

that the Board's determination that organizers were lawfully

excluded from the sidewalks of four other stores was based

on an erroneous reading of Virginia law. Accordingly, we

grant the Union's petition for review and remand the case for

further proceedings consistent with this opinion. In addition,

because the employer has not challenged the Board's findings

that it violated section 8(a)(1) in those respects reflected in

the Decision and Order below, the Board's cross-petition for

enforcement of its Order against the company is granted.

__________

12 See J.A. at 219 (Victory Boulevard) ("The demised premises

... include the building ... existing thereon and the side-

walk...."). But see Farm Fresh, Inc., 326 N.L.R.B. No. 81, at 19

(ALJ Decision) (finding inconsistent provisions and resolving ambi-

guity against Farm Fresh because of Indio burden).