Snyder’s of Hanover, Inc. v. National Labor Relations Board

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2702
SNYDER’S OF HANOVER, INC.,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
No. 01-3101
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
SNYDER’S OF HANOVER, INC.
Respondent
___________________
On Petition For Review of an Order of the
National Labor Relations Board
Board No. 5-CA-28033
_________________________________________
Argued: March 8, 2002
Before: BECKER, Chief Judge, ALITO and RENDELL,
Circuit Judges.
(Filed: June 24, 2002)
JAY R. FRIES, ESQUIRE (ARGUED)
PAUL M. LUSKY, ESQUIRE
Kruchko & Fries
Suite 305
600 Washington Avenue
Baltimore, MD 21204
Counsel for Snyder’s of Hanover, Inc.
ARTHUR F. ROSENFELD, ESQUIRE
General Counsel
JOHN E. HIGGINS, JR., ESQUIRE
Deputy General Counsel
JOHN H. FERGUSON, ESQUIRE
Associate General Counsel
AILEEN A. ARMSTRONG, ESQUIRE
Deputy Associate General Counsel
FREDERICK C. HAVARD, ESQUIRE

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Supervisory Attorney
JEFFREY M. HIRSCH, ESQUIRE (ARGUED)
Attorney
National Labor Relations Board
1099 14th St., NW
Washington, DC 20570
Counsel for National Labor Relations Board
LAURENCE M. GOODMAN, ESQUIRE (ARGUED)
Willig, Williams & Davidson
1845 Walnut St., 24th Fl.
Phila., PA 19103
Counsel for United Food and Commercial
Workers Union, Local 1776 - Intervenor
__________________________
OPINION OF THE COURT
___________________________
BECKER, Chief Judge.
Snyder’s of Hanover, Inc., petitions for review of an order of the National Labor
Relations Board ("the NLRB" or "the Board") holding that Snyder’s violated Section
8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. 158(a)(1), by
committing three unfair labor practices: (1) prohibiting non-employee representatives of
the United Food and Commercial Workers International Union, Local 1776, AFL-CIO,
CLC ("the Union"), from distributing literature in a public right-of-way on the
company’s York County, Pennsylvania, premises; (2) calling the police in an attempt to
remove the Union organizers for trespassing; and (3) engaging in unlawful surveillance
of the Union’s organizing activities. The NLRB has cross-petitioned for enforcement of
this order.
The surveillance issue is straightforward, and concluding that the Board’s
decision on that issue is supported by substantial evidence, we will enforce that aspect of
its order and deny the cross-petition for review. The other two issues intersect with an
area of Pennsylvania property law that is less than pellucid and that the parties have
succeeded in confusing further. While the issues are thus somewhat muddled, as will
appear, we side with Snyder’s on those issues and grant its petition for review (and hence
deny enforcement).
I.
The relevant facts are set out in the decision of the Administrative Law Judge
("ALJ"), whose factual findings were adopted by the Board. We in turn accept the ALJ’s
findings as "supported by substantial evidence on the record considered as a whole,"
NLRA 10(e), 29 U.S.C. 160(e); see also Universal Camera Corp. v. NLRB, 340 U.S.
474, 485-87 (1951), which we present in abridged form:
At 2:30 p.m. on the afternoon of October 1, [1998,] five union
representatives arrived at the entrance to the Company’s facilities, on State
Route 116 (York Street or SR 116) to distribute union handbills to
employees, as they entered or exited during a shift change. . . . The
Company’s plant lies a little more than 225 feet off of SR 116. A paved
two-lane driveway, 34.5 feet wide, connects the plant to the highway. The
Company’s employees use this driveway going to and from their work at its
plant. . . .
[O]n October 1, there was a right-of-way, running from the middle
of SR 116 to a line running tangent to one utility pole near the driveway
and a short distance behind the other utility poles located near the edge of
the road.
The five union representatives . . . prepared to distribute handbills to

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company employees as they entered or exited the driveway at 3 p.m. The
handbill encouraged company employees to select the Union as their
representative for purposes of collective bargaining. . . .
[T]he five union representatives did not venture inside the utility
poles, but remained in the right-of-way . . . [and] hand[ed] out union
leaflets to incoming and exiting autos, at the top of the driveway.
At about 2:45 p.m. Company Vice Presidents John Bartman and Pat
McInerney received word, while at a meeting at the plant, that there were
people trespassing on company property and handing out leaflets. . . . The
two company officials left the meeting to observe the asserted trespassing .
. . [and] walked up the left side of the driveway, toward [two of the] Union
Representatives [namely, Patricia Berger and Pierre Joanis]. . . .
. . . .
. . . McInerney asked the union representatives if there were any
company employees with them. The union representatives said no.
McInerney said that the union representatives were trespassing and directed
them to leave. . . . The union representatives remained adamant in their
refusal to leave and insisted that they were not trespassing. Joanis warned
McInerney that he and Bartman were engaging in surveillance.
Bartman announced that he would call the police . . . [and] walked
back to the company building to call the police. McInerney remained in the
vicinity of Berger and Joanis arguing with them. The union representative
claimed that they were standing in the right-of-way and accused McInerney
of surveillance. At this time, cars were leaving the plant. . . . [Berger]
warned [McInerney] that the Union would file an unfair labor practice
charge . . . .
McInerney retreated down the driveway as Berger was handing
union literature to departing cars during the shift change. He stood,
looking into car windows and greeting people in the cars by name. In a
few minutes, Bartman joined McInerney along the side of the driveway.
The two moved a bit further down the driveway and continued to wave at
the passing cars as the shifts changed. They also called out to the people in
the cars by name. At the same time, Berger was handing to the passing
employees the Union’s handbills. [Snyder’s plant engineer Dennis]
Tavares also stood along the side of the driveway, waving at passing cars
and addressing their occupants by name.
. . . .
[Penn Township Police Officer Guy] Hettinger testified that when
he arrived at Snyder’s, he observed the five union representatives standing
at the entrance to Snyder’s driveway, where the pavement of SR 116 and
the driveway meet. . . . According to Hettinger’s testimony, [Bartman and
McInerney] complained that the five union people were trespassing on the
Company’s property and . . . requested that the officer ask the five to leave.
. . .
The police officer testified that he told Patricia Berger and her
colleagues of the Company’s complaint that they were trespassing and also
asked the nature of their activity. Hettinger testified that the union
representatives told him that they were handing out union literature . . .
[and] that they had a right to be in the right-of-way of SR 116, which
extended 16 feet from the yellow line in the middle of the road. . . .
[Hettinger] told the union representatives that he did not know what a full

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right-of-way was in that area and that he would have to check on it.
Officer Hettinger . . . went to his police cruiser and contacted York
County’s assistant district attorney, Tom Kelley . . . . Kelley advised him
that [the Union representatives had a right to remain in the right-of-way so
long as they were peaceful and did not impede the flow of traffic.]
[Hettinger] returned to Bartman and McInerney and told them of
Kelley’s remarks. . . .
[Hettinger also] reported his conversation to the five union
representatives . . . [and then] departed from the site of their handbilling . . .
. [T]he union representatives left the site [shortly thereafter.]
Snyder’s of Hanover, Inc., 334 N.L.R.B. No. 21 (May 30, 2001), at 3-5 (quoting
Decision of ALJ).
We have jurisdiction over Snyder’s’ petition for review of the Board’s order
pursuant to Section 10(f) of the NLRA, 29 U.S.C. 160(f), and jurisdiction over the
Board’s cross-petition to enforce its order pursuant to Section 10(e) of the NLRA, 29
U.S.C. 160(e). Our review of the NLRB’s legal analysis is "plenary," although
because of the Board’s special competence in the field of labor relations, we give its
interpretations of the NLRA "special deference." Citizens Publ’g & Printing Co. v.
NLRB, 263 F.3d 224, 232 (3d Cir. 2001).
II.
In general, an employer has no obligation to allow the distribution of union
literature by non-employees on its property. This "right of employers to exclude union
organizers from their private property emanates from state common law." Thunder Basin
Coal Co. v. Reich, 510 U.S. 200, 217 n.21 (1994). An employer seeking to justify its
exclusion of non-employee organizers before the Board must, therefore, demonstrate that
"at the time it expelled the union representatives," it had a property interest under state
law "which entitled it to exclude individuals from the property." Indio Grocery Outlet,
323 N.L.R.B. 1138, 1141 (1997) (internal quotation marks and citations omitted),
enforced sub nom. NLRB v. Calkins, 187 F.3d 1080 (9th Cir. 1999).
The Board concluded that Snyder’s had no right to exclude the Union organizers
from the right-of-way on its property because "under Pennsylvania law, handbilling on a
public right-of-way is permissible if it is not coercive, intimidating or violent." Snyder’s,
334 N.L.R.B. No. 21, at 2. The Board noted that under Pennsylvania law, the scope of
the right-of-way in Snyder’s’ property is determined by municipal law. See id. at 1, 2
n.4. Because, according to the Board, Snyder’s "produced no evidence as to the scope of
the public easement," i.e., no evidence that Penn Township did not allow union
handbilling in its public rights-of-way "it was unable to establish that the Union’s
handbilling was outside the scope of that easement and that therefore [it] was entitled to
exclude the union representatives from the public right-of-way." Id. at 2. In seeking
enforcement, the NLRB’s General Counsel has echoed the Board’s decision’s view of
Pennsylvania law, stating in his brief that, "if the . . . township did not authorize union
handbilling in its public rights-of-way, the Company would be permitted to exclude such
activity under Pennsylvania law, thereby avoiding liability under Section 8(a)(1). The
Company, however, presented no evidence regarding [the township’s] authorization of
use for its public rights-of-way."
Pennsylvania law on the right of a municipality to control handbilling within
public rights-of-way is checkered, especially when viewed through the lens of
constitutional concerns. It is not clear to us whether Pennsylvania law or the First
Amendment would permit a municipality to prohibit the distribution of leaflets in public
rights-of-way. See 46 S. 52nd St. Corp. v. Manlin, 398 Pa. 304, 313 (1960) (quoting
Hague v. C.I.O., 307 U.S. 496, 515 (1939) ("Wherever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.")); see also Edward J. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575-76 (1988) (recognizing
that union handbilling may be entitled to First Amendment protection).

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The issue is complicated by the fact that, although both parties concede that the
area in question the edge of the driveway to the Snyder’s facility is part of the public
right-of-way, a driveway to a private facility is not necessarily the type of public area,
such as a street, a park, or a sidewalk, that First Amendment jurisprudence considers to
have been "immemorially" used "for purposes of assembly, communicating thoughts
between citizens, and discussing public questions." Hague, 307 U.S. at 515. Indeed, as
Snyder’s points out, Pennsylvania law has historically recognized that the scope of a
public right-of-way may vary depending on context, see Manlin, 398 Pa. at 312 ("While
the easement acquired by the public in country roads is an easement of passage only, this
is not true in Pennsylvania with respect to the public right in the streets of a city."), a
proposition with which the General Counsel for the Board, through his submission that
the scope of a public right-of-way depends upon municipal law, appears to agree.
However, this case was not presented to us as a constitutional case, so we need not
decide it that way. And although we are doubtful as to the accuracy of the
characterizations of Pennsylvania law in the Board’s decision and the General Counsel’s
brief, we will proceed from the legal premise embraced by the General Counsel that if
Penn Township did not authorize union handbilling in its public rights-of-way, Snyder’s
"would be permitted to exclude such activity under Pennsylvania law, thereby avoiding
liability under Section 8(a)(1)." Our review of the Penn Township ordinances indicates
to us that the township has not expressly authorized union handbilling or, for that
matter, any other form of expression that could be understood to include handbilling
within its public rights-of-way. Consequently, in light of the General Counsel’s critical
concession that the municipality’s lack of authorization for union handbilling exonerates
Snyder’s from liability under Section 8(a)(1), we are constrained to disagree with the
Board’s decision, and conclude that Snyder’s had a right under Pennsylvania law as it
is presented to us by the parties to exclude the organizers from its property, even if the
organizers were stationed in a public right-of-way.
As we read it, the Board’s decision to the contrary rested in large part on what it
perceived as the failure of Snyder’s to "produce[] . . . evidence as to the scope of the
public easement" (or what the General Counsel referred to as Snyder’s failure to present
"evidence regarding [the township’s] authorization of use for its public rights-of-way").
The municipality’s authorization or non-authorization of handbilling by public ordinance
is a legal issue, however, and not an issue of fact for which Snyder’s bore the burden of
proof under Indio Grocery. Indeed, in Indio Grocery, the Board specifically noted that
in examining whether the employer had the right to exclude the union organizers from its
property, "we look to the law that created and defined the [employer’s] property interest .
. . ." 323 N.L.R.B. at 1141 (emphasis added). Consequently, even if Snyder’s did not
demonstrate in its hearings before the ALJ and the Board that Penn Township’s
ordinances do not allow for handbilling, it is a legal issue over which we have plenary
review, and the "substantial evidence" standard is therefore inapposite.
The General Counsel also argues that Snyder’s did not present any documentary
evidence before the ALJ or the Board demonstrating that it owned the property on which
the Union organizers were standing. Consequently, the General Counsel contends,
Snyder’s has failed to satisfy its obligation under Indio Grocery to "establish that it had .
. . an interest which entitled it to exclude individuals from the property." 323 N.L.R.B. at
1141. We find this argument unconvincing, for even assuming that Snyder’s failed to
present any documentary evidence of ownership in the administrative proceedings, the
Board’s opinion never mentioned this supposed lack of documentary evidence as a basis
for its decision. We therefore consider that the Board understood that Snyder’s had title
to the property extending to the middle of the road.
Because we conclude that under Pennsylvania law, as represented to us by the
parties, Snyder’s had the right to exclude the organizers from the right-of-way on its
property, we will grant the petition for review, and deny enforcement of the Board’s
order with respect to the first unfair labor practice, i.e., the charge that Snyder’s violated
Section 8(a)(1) of the NLRA in its attempts to prohibit Union representatives from
distributing handbills on its premises. As a direct consequence of this holding, we will
also grant the petition for review, and deny enforcement of the Board’s order with
respect to the second unfair labor practice: Snyder’s’ calling the police in an attempt to
remove the Union organizers for trespassing. Because Snyder’s had a right to exclude
the organizers, it was entitled to rely on municipal law enforcement officials to enforce

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this right, and, therefore, committed no unfair labor practice in this respect.
III.
The ALJ found that the actions of the Snyder’s managers in waving to cars and
calling out the names of employees exiting the facility while the Union was distributing
leaflets amounted to unlawful surveillance. Without any additional discussion of the
issue, the Board affirmed.
"[A]n employer’s mere observation of open, public union activity on or near its
property does not constitute unlawful surveillance." Hoschton Garment Co., 279
N.L.R.B. 565, 567 (1986). However, when management’s observation is not just "casual
in nature," but rather amounts to a "deliberate attempt to interfere with the legitimate
union activity of employees," a finding of illegal surveillance is warranted. Brown
Transp. Corp., 294 N.L.R.B. 969, 971 (1989); see also U.S. Steel Corp. v. NLRB, 682
F.2d 98, 101 (3d Cir. 1982) (concluding that a finding of illegal surveillance is warranted
when the circumstances of "the employer’s conduct may reasonably tend to coerce or
intimidate employees" in the exercise of their rights under the NLRA) (internal quotation
marks omitted).
In Brown Transport, the Board enumerated a number of factors to be considered
in determining whether management’s observation is coercive in nature:
These [factors] include the duration of the observation, the frequency and
timing of the observation, the proximity of the observer to the union
activity being conducted, the likelihood or actuality of trespassory actions
by nonemployees engaged in the union activity, and the reasonableness of
any perception on the part of the employer of any safety risks to employees
or customers associated with the conduct of the union activity. Additional
factors include the existence of demonstrated union animus on the part of
the employer, the commission of other acts to interfere with the activity
being conducted, and the employer observer’s departure from customary or
normal practice represented by his presence in the immediate vicinity of the
union activity. Although each of the foregoing factors are significant, in
the final analysis, all the circumstances surrounding the observation must
be considered and evaluated.
294 N.L.R.B. at 971-72.
The ALJ’s (and, in turn, the Board’s) decision with respect to the unfair labor
practice of surveillance appears to have been based largely on the testimony of Union
organizer Berger, who stated that McInerney and Bartman "were standing . . . down the
tree line with their eyes open looking into cars, making hand gestures similar to a wave . .
. . [T]hey were calling people by name, and giving general greetings to that sort." Since
there was no evidence that this was standard or even occasional practice, the clear
implication of this testimony, and the one that the ALJ and the Board appear to have
accepted, is that management’s actions were intended to let departing employees know
that they were being watched to see if they accepted the Union’s literature. As the ALJ
observed, "I find that the Company’s conduct in this regard was likely to discourage its
employees from taking the Union’s literature." Snyder’s, 334 N.L.R.B. No. 21, at 5
(quoting ALJ).
While we have some reservations about the failure of the ALJ and the Board to
engage in a thorough application of the Brown Transport factors to the facts at hand, we
nevertheless will sustain the Board’s charge of unlawful surveillance. Although
McInerney’s, Bartman’s, and Taveras’s antics in waving to cars and calling out
employees’ names might appear to have been more awkward than threatening, their
actions may well have deterred employees driving out of the factory’s parking lot
particularly those whose names were called out from accepting Union literature.
Moreover, while Snyder’s contends that McInerney, Bartman, and Taveras were
concerned only with directing traffic and trying to cool the tempers of employees waiting
in the long line of cars attempting to exit the parking lot, the ALJ’s findings, which we
consider supported by substantial evidence on the record, contradict Snyder’s’ benign
characterization of the events.
We therefore will enforce the Board’s order with respect to the third unfair labor
practice unlawful surveillance and deny Snyder’s’ petition for review as to this
portion of the order.

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IV.
For the foregoing reasons, we will grant Snyder’s its petition for review of the
Board’s order (and deny the Board’s cross-petition to enforce its order) as to alleged
unfair labor practices (1) and (2), which charged Snyder’s with violating the NLRA by
prohibiting Union organizers from leafleting on its premises and calling the police in an
attempt to remove them. We will deny Snyder’s its petition for review (and grant the
Board its cross-petition to enforce the order) only with respect to the charge of unlawful
surveillance.
_________________________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

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