NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Harco Asphalt Paving, Inc. and Laborers International Union of North America, Local Union No.
120, a/w Laborers International Union of
December 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On March 6, 2008, Administrative Law Judge Mark D. Rubin issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed limited cross-exceptions and an answering brief. The Charging Party filed an answering brief to the Respondent’s exceptions.
The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the Respondent,
Harco Asphalt Paving, Inc.,
1. Cease and desist from
(a) Instructing union representatives who engage in protected union activity to leave areas where the Respondent has no property right to exclude trespassers, threatening to call the police and calling the police to remove union representatives from such areas, and threatening to obtain a restraining order against union representatives for this purpose.
(b) Engaging in photographic surveillance of our employees and union representatives attempting to communicate with them.
(c) Ordering employees to leave a jobsite in order to avoid contact during their lunchbreak with union representatives in areas where the Respondent has no property right to exclude trespassers.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days
after service by the Region, post at its facility in
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not instruct union representatives who engage in protected union activity to leave areas where we have no property right to exclude trespassers, threaten to call the police and call the police to remove union representatives from such areas, and threaten to obtain a restraining order against union representatives for this purpose.
We
will not engage in
photographic surveillance of our employees and union representatives seeking to
communicate with them.
We will not order our employees to leave a jobsite in order to avoid contact during their lunchbreak with union representatives in areas where the Respondent has no property right to exclude trespassers.
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.
Harco Asphalt Paving, Inc.
Belinda J. Brown, Esq., for the General Counsel.
Michael L. Einterz, Esq., of
Neil E. Gath, Esq., of
DECISION
Statement of the Case
Mark D. Rubin, Administrative Law Judge. These cases were tried in Indianapolis, Indiana, on December 11, 2007, based on charges filed against Harco Asphalt Paving, Inc. (Respondent) by Laborers’ International Union of North America, Local Union No. 120, a/w Laborers’ International Union of North America (Union or Charging Party) on the following dates in 2007: June 19 (Case 25–CA–30370), June 5 (Case 25–CA–30359), and June 1 (all other cases). Amended charges in all of the cases except Case 25–CA–30370 were filed on July 30, 2007.1
The Regional Director’s consolidated complaint, dated September 28, 2007, alleges, in pertinent part, that the Respondent violated Section 8(a)(1) by engaging in the following actions in response to assertedly lawful handbilling engaged in by the Union: instructed handbillers to leave the area; threatened to call the police to have handbillers removed; called the police to have handbillers removed; engaged in surveillance of the protected, concerted activities of the handbillers and employees; instructed employees to physically remove handbillers; and threatened to obtain a restraining order against the handbillers. The complaint further alleges that the Respondent violated Section 8(a)(1) at its jobsites by engaging in the following actions in order to prevent the Union’s representatives from communicating with its employees: instructed union representatives to leave the area; threatened to call police to have union representatives removed; called the police to have union representatives removed; ordered employees to leave the jobsite; and engaged in surveillance of the protected, concerted activities of union representatives and employees.
The Respondent defends by maintaining as to certain handbilling
that occurred in the area of its offices, that it was simply asserting its
private property rights. As to the
allegations pertaining to visits by union representatives to its jobsites, the
Respondent asserts that the burden is on the General Counsel to prove that the
At the trial, the parties were afforded a full opportunity
to examine and cross-examine witnesses, to adduce competent, relevant, and
material evidence, to argue their positions orally, and to file posttrial
briefs. On the entire record, including
my observation of the demeanor of the witnesses, and after considering the
briefs filed by the Respondent, the General Counsel, and the
Findings of Fact
i.
jurisdiction
The Respondent, a corporation, has been engaged in the construction
industry as a provider of asphalt paving, concrete, dirt, and maintenance
services at its facility in
ii. alleged
unfair labor practices
The substantive events described below occurred in the context
of the
Respondent’s Premises and Surrounding Property
The Respondent’s offices and work facility are located at
In addition to owning the street
May 21;
On May 21, Union Organizers James Daniels and Brian Short5 arrived in the vicinity of
Between 7 and 7:15 a.m., the Respondent’s office manager, Cindy Sartain, drove by Daniels and Short, and stopped her vehicle about 10 feet past where they were standing. Short stepped into the street towards Sartain’s vehicle and offered a handbill to her. Sartain opened her window and asked what the handbill was. Short responded, “Just information.” Sartain rolled up her window and drove a few feet, and then did a “u-turn” back towards Daniels and Short, stopped again, and exited her vehicle. Then, the parties stipulated and I find, Sartain instructed Daniels and Short to leave the area, threatened to call the police to have them removed from the area, and called the police to have Daniels and Short removed. Some of Sartain’s words to Daniels and Short were aggressive and obscene.9 When Sartain exited her car, the union representatives began videotaping. Sartain used her cell phone to take photos of Daniels and Short and then to call the Indianapolis Police Department.
At some point during the confrontation, a pick-up truck
with Harco markings on the door and four occupants, drove past Sartain,
Daniels, and Short. Sartain yelled
towards the truck to pull over and wait for the police.10
The truck pulled over into the truck wash, faced the vehicle north
towards
An Indianapolis Metropolitan Police squad car arrived on the scene about 7:15 to 7:30 a.m., and pulled into the truck wash parking area. Sartain walked to the police car and told the officer that Daniels and Short were trespassing.11 The police officer walked over to Daniels and Short. Short handed him a handbill. The officer said he didn’t need to see the handbill, and that Daniels and Short were trespassing. The organizers replied that they were on public property because there was an easement. The officer replied that they were on private property and needed to leave.12 The officer added that if they returned, they would be arrested.13 Daniels and Short proceeded to their vehicle and left the area.
May 31;
On May 31, union organizers returned to the
The parties stipulated, and I find, that Sartain instructed the organizers to leave, threatened to call the police to have the organizers removed from the area, called the police to have the organizers removed from the area, threatened to obtain a restraining order against the handbilling by the organizers, and photographed the organizers. The parties also stipulated, and I find, that the Respondent’s superintendent, Charlie McClellan, photographed the organizers while they were engaged in the handbilling.
On both May 21 and 31, during the handbilling, other vehicles,
unrelated to the Respondent or its employees, traveled
At about 7 a.m. the police arrived, asked the organizers for identification, and told them that they were trespassing and were banned from the property. Daniels told the police that the organizers disagreed that they were trespassing, that they had plats and deeds and believed they were in an easement. The police responded that the organizers were banned from the property, that they were never to come back, and would be arrested for trespassing (if they did). At these instructions, the organizers departed and have not been back since.
June 1;
On June 1, Daniels, Hardwick, and Guererro traveled to the
At about noon, McClellan arrived at the scene, and told his employees to go to lunch and leave immediately.14 The parties stipulated, and I find, that McClellan instructed the organizers to leave the area, threatened to call the police to have them removed, called the police to have them removed, and photographed the organizers.
About 15 minutes after McClellan arrived,
June 4;
The parties stipulated, and I find, that on June 4, Dan Dennis, acting under the instructions of the Respondent’s owner, Paul Harding, instructed the Union’s representatives to leave the Perry Meridian High School jobsite, where the Respondent was performing a contract, threatened to call the police to have the Union’s representatives removed from the area, and that Sartain called the police to have them removed. The record is devoid of other evidence as to this incident.
June 18;
On June 18, Organizers Hardwick, Guerrero, and Daniels
again traveled to Avon, this time to visit a project the Respondent was working
on, located on a public trail behind the
Analysis and Conclusions
May 21 and 31;
The General Counsel alleges that Sartain’s and the Respondent’s
actions on May 21 and 31 in instructing the Union’s organizers to leave, threatening
to call the police, calling the police to have them removed, and instructing
employees to physically remove the organizers (May 21) violated Section 8(a)(1)
of the Act. The General Counsel and the
“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].” Indio Grocery Outlet, 323 NLRB 1138, 1142 (1997), quoting Food For Less, 318 NLRB 646, 649 (1995). Absent such a showing, there is no conflict between competing rights requiring an analysis and an accommodation under Lechmere, Inc. v. NLRB, 502 U.S. 527, 538 (1992). Indio Grocery Outlet, supra.
Here, as noted, the facts are largely undisputed. The
Inasmuch as the record is devoid of evidence detailing the
easement19 on
Further, I conclude that the Respondent did not violate the Act by, assertedly, instructing “employees to attempt to physically remove Local 120 handbillers.” Here, the General Counsel presented two witnesses with contrary testimony as to what Sartain shouted to employees driving by the organizers. I credited Short who testified that Sartain simply shouted instructions to pull over and wait for the police to arrive. Accordingly, I conclude that the Respondent did not violate Section 8(a)(1) as so alleged.
As to the surveillance allegations, the General Counsel apparently points to the stipulations that Sartain photographed the organizers on May 21 and 31, and McClellan on May 31.21 The Respondent, in its brief, argues “the union representatives may not complain of surveillance when they are conducting their activities in the open,” and that “this is particularly true where . . . the union representatives chose to engage in their activities while trespassing on the employer’s premises.” In Roadway Package System, 302 NLRB 961 fn. 1 (1991) (citations omitted), in circumstances where photography was not involved, the Board held, “it is well settled that where . . . employees are conducting their activities openly on or near company premises, open observation of such activities by an employer is not unlawful.”
The Board, in F. W. Woolworth Co., 310 NLRB 1197 (1993), set forth fundamental principles governing employer surveillance of protected, employee activity. “The Board in Woolworth reaffirmed the principle that an employer’s mere observation of open, public union activity on or near its property does not constitute unlawful surveillance. Photographing and videotaping such activity clearly constitute more than mere observation, however, because such pictorial recordkeeping tends to create fear among employees of future reprisals. The Board in Woolworth reaffirmed the principle that photographing in the mere belief that something might happen does not justify the employer’s conduct when balanced against the tendency of that conduct to interfere with employees’ right to engage in concerted activity.” National Steel & Shipbuilding Co., 324 NLRB 499 (1997) (citations omitted).
Here, the Respondent didn’t merely observe union activities taking place in the open, but photographed those activities. Sartain, who photographed the handbillers with her cell phone camera, testified she was in fear when she took the photographs. However, there is no credible evidence in the record which would support such an asserted fear. The only activity that took place was peaceful handbilling by a very limited number of handbillers. Nor does the Respondent contend in brief or argument at the hearing, that the photography of Sartain or McClellan22 was justified by any perceived danger or undertaken to document alleged trespass, and there is no credible evidence of such.
The Respondent’s taking of photographs of the handbillers, would clearly serve to chill any prospective attempts by the Respondent’s passing employees to either obtain a handbill or speak to the organizers, both of which were the stated purposes of the organizer’s handbilling. Thus, under the instant circumstances, I find that by taking photographs of the Union’s organizers on May 21 and 31, the Respondent engaged in surveillance, and violated Section 8(a)(1) of the Act.23
Finally, as to May 31, the complaint alleges that the Respondent violated Section 8(a)(1) when Sartain threatened the organizers that she would obtain a restraining order. The Board has long held that the threat to file a lawsuit, as opposed to the filing of a lawsuit, violates the Act. S. E. Nichols Marcy Corp., 229 NLRB 75 (1977); Auto Workers Local 651 (General Motors Corp.), 331 NLRB 479 fn. 1 (2000). Here, Sartain’s threat to seek a restraining order, together with her other actions and threats, was designed to prevent the organizers from attaining their objective of reaching the Respondent’s employees with their message. Under these circumstances, and in the context of the other findings herein, I conclude that Sartain’s threat to seek a restraining order violated Section 8(a)(1) of the Act.
June 1, 4, and 18
On June 1, 4, and 18, the interactions between the Respondent and the organizers alleged as violations of Section 8(a)(1), occurred on public property, which the Respondent claims no ownership interest in.24 I found that on June 1, McClellan instructed the organizers to leave the area, threatened to call the police to have them removed, called the police to have them removed, and photographed the organizers. I further found that on June 4, Dan Dennis, acting under the instructions of the Respondent’s owner, Paul Harding, instructed the Union’s representatives to leave the Perry Meridian High School jobsite, where the Respondent was performing a contract, threatened to call the police to have the Union’s representatives removed from the area, and that Sartain called the police to have them removed. Finally, I found that on June 18, McClellan threatened to call the police to have the organizers removed from the area.
Inasmuch as on all three occasions, the Respondent possessed no property interest in the public school or public trail sites where the confrontations occurred, I find that the Respondent has failed to meet its threshold burden of demonstrating that it maintained a property interest which entitled it to exclude individuals from the property. Indio Grocery Outlet, supra. Accordingly, I conclude that the Respondent violated Section 8(a)(1) of the Act on June 1, 4, and 18 by instructing the organizers to leave, threatening to call the police to have the organizers removed, and calling the police, and by photographing the organizers and, thus, engaging in surveillance on June 1.25
The complaint further alleges that on June 1, the Respondent
also violated Section 8(a)(1) by ordering employees to leave the jobsite. I found that when McClellan saw some of the
Respondent’s employees eating pizza with the organizers, he told the employees
to leave immediately and go to lunch, which they did. While it’s not clear whether or not the
Respondent’s employees were on their lunchbreak when they were eating the
Conclusions of Law
1. The Respondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. By the following actions, on the dates set forth below, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
(a) On May 21, 31, June 1 and 4, 2007, instructing representatives of the Charging Party to leave the area.
(b) On May 21, 31, June 1, 4, and 18, 2007, threatening to call the police to have representatives of the Charging Party removed from the area.
(c) On May 21, 31, June 1 and 4, 2007, calling the police to have representatives of the Charging Party removed from the area.
(d) On May 21, May 31, and June 1, 2007, engaging in surveillance of representatives of the Charging Party and its employees, by taking photographs of the representatives of the Charging Party.
(e) On May 31, 2007, threatening to obtain a restraining order against representatives of the Charging Party.
(f) On June 1, 2007, ordering employees to leave a jobsite in order to avoid contact with representatives of the Charging Party.
4. The unfair labor practices set out in paragraph 3, above, affect commerce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent, in no manner other than that specifically found herein, including any other manner alleged in the complaint, has violated the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, as is set forth above, it will be ordered to cease and desist therefrom and from any like or related conduct. It will also be ordered that the Respondent post a remedial notice.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended26
ORDER
The Respondent, Harco Asphalt Paving, Inc.,
1. Cease and desist from
(a) Instructing union representatives to leave the area.
(b) Threatening to call the police to have union representatives removed from the area.
(c) Calling the police to have union representatives removed from the area.
(d) Engaging in surveillance of employees and union representatives.
(e) Threatening to obtain a restraining order against union representatives.
(f) Ordering employees to leave a jobsite in order to avoid contact with union representatives.
2. Within 14 days send letters signed by an authorized representative of the Respondent to the Indianapolis Metropolitan Police Department, the Avon Police Department, and the Metropolitan School District of Perry Township, as is set forth in the notice, attached as the appendix.
3. Within 14 days
after service by the Region, post at its
4. Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not order representatives of Laborers’
International Union of North America, Local No. 120, a/w Laborers’ International
Union of North America (
We will not threaten to call the police or obtain a restraining order, or call the police, in order to remove from areas alongside Harco Way or from on our jobsites, representatives of Laborers’ International Union of North America, Local No. 120, a/w Laborers’ International Union of North America (Union), who are engaging in lawful activity such as distributing handbills.
We will not order our employees to leave a jobsite in order to prevent them from talking to union representatives during nonwork time.
We will not engage in surveillance of the union activities of our employees or of representatives of the Union, including by taking photographs of them engaging in lawful union or protected, concerted activities.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed you by Section 7 of the Act.
We will notify, in writing, the Indianapolis
Metropolitan Police Department, with a copy sent to the Union, that we are no
longer seeking to have the police assist us in removing individuals, including
representatives of the
We will notify, in writing, the Avon Police Department,
with a copy sent to the Union, that we are no longer seeking to have the police
assist us in removing individuals, including representatives of the Union, who
are engaged in lawful union activity or protected, concerted activity at the
We will notify, in writing, the Metropolitan
School District of Perry Township and their police department, that we are no
longer seeking to have said police assist us in removing individuals, including
representatives of the Union, who are engaged in lawful union activity or
protected, concerted activity at the
Harco Asphalt Paving, Inc.
1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
2 Although the Respondent filed exceptions to the judge’s finding that it
violated Sec. 8(a)(1) of the Act by threatening to obtain a restraining order
against the Union’s agents, it did not articulate, either in its exceptions or
briefs, any grounds for reversing the judge. Accordingly, we find, pursuant to
Sec. 102.46(b)(2) of the Board’s Rules and Regulations, that the Respondent has
effectively waived these exceptions. See, e.g., Barstow Community Hospital, 352 NLRB No. 125 (2008), citing Holsum de
Puerto Rico, 344 NLRB
694, 694 fn. 1 (2005), enfd. 456
F.3d 265 (1st Cir. 2006).
We find no need to pass on whether other actions taken by the Respondent in response to the presence of the Union’s agents in the area of Harco Way on May 21 and 31, 2007 violated Sec. 8(a)(1) inasmuch as the Board’s Order issued today approving the parties’ settlement in Case 25–CA–30671, et al., fully addresses handbilling activity in the areas along Harco Way.
3 We shall modify the judge’s recommended Order and substitute a new notice to conform to our findings and to the Board’s standard remedial language. We shall also delete the recommended provision requiring the Respondent to mail letters to local police departments and to a local school district. We find it unnecessary to pass on the General Counsel’s request that the notice be read aloud to the Respondent’s employees, as the Board’s Order in Case 25–CA–30671, et al., provides for the reading of a substantially similar notice.
4 If this Order is
enforced by a judgment of a
1 During the course of the
hearing, the Respondent, the
2 These facts were stipulated to by the parties, by exhibit and verbal stipulation. Indeed, most facts found herein were stipulated to by the parties during the hearing. The Respondent maintains in its counsel’s brief that “the relevant facts have been stipulated to by the parties, eliminating the need for credibility determinations.”
3 The parties stipulated
that “on
4 Stipulated by the
parties, as part of GC Exh. 2. In its
brief, the
5 Daniels and Short are
employed by the
6 There is
no other evidence as to the contents of the handbill other than it was part of
the
7 Credited testimony of Daniels.
8 Credited testimony of Daniels and Short who, in my observation, demonstrated the testimonial demeanor of witnesses truthfully testifying. This testimony is generally uncontroverted. The Respondent’s office manager, Cindy Sartain, testified that when she first observed Daniels and Short, they were standing on the pavement. This testimony does not controvert the testimony of Daniels and Short to the effect that they generally remained on the grassy area, with brief forays into the street. To the extent that it does, and for the reasons discussed below, I do not credit Sartain as to this testimony. Daniels credibly testified that Sartain initially pulled her car up in the street lane next to the grassy area and “she kind of blocked us right there.”
9 The Respondent essentially stipulated to par. 5, subpars. (i), (ii), (iii) of the complaint. The actual testimony of Sartain, Daniels, and Short differs as to how vociferously Sartain expressed herself and whether or not she used obscenities. Sartain described herself as frightened. The testimony of Daniels and Short both as to the language Sartain used and her aggressive manner would indicate to the contrary. I credit the testimony of Daniels and Short as to Sartain’s manner and words and find that Sartain, in fact, was not frightened by the appearance and actions of Daniels and Short. Thus, I find, that Sartain told Daniels and Short that “they were non-union, that they didn’t want us union mother-fu— there, that we were trespassing, and that she was going to call the cops.” Both Daniels and Short, by demeanor, good recollection of various events, and demonstrated proclivity to fully answer the questions of all counsel, displayed the traits of truthful witnesses. Sartain was less impressive. She appeared uncomfortable on the witness stand and less willing to engage the questions of opposing counsel. Most of the facts found herein were either stipulated to or were uncontroverted. Any other facts found are based on the credited testimony of Daniels and Short for the reasons stated above.
10 Daniels testified that Sartain yelled towards the truck to pull over, “to get us off the property.” Short testified that she yelled, “Stop, pull over, and wait for the police to come.” Short, in his testimony, appeared to directly quote Sartain, while Daniels did not. I conclude as to this testimony that Short is more reliable.
11 Credited testimony of Daniels who testified he was able to hear this part of the conversation.
12 In the transcript, Short appears as having testified that the officer used the words “public property.” If he did so testify, he used the words inadvertently. Clearly he meant to testify that the officer used the words “private property,” and I so find.
13 Credited and uncontroverted testimony of Daniels.
14 Credited testimony of Hardwick. Daniels, whose testimony is similar, but not identical to Hardwick’s, seemed less sure of the exact words used by McClellan, who did not testify.
15 Credited testimony of Daniels and Hardwick.
16 Credited testimony of Daniels.
17 I found this to be a fact, based on the parties’ stipulations.
18 The Board’s decision in Hoschton Garment Co., 279 NLRB 565 (1986), cited by the Respondent in its brief, is inapposite. In Hoschston, the union organizers were trespassing on the employer’s property.
19 The
General Counsel and the
20 Thus, even in a situation where union representatives were trespassing, an employer couldn’t seek their removal from other areas where the employer had no assertable property interest. Food For Less, supra at fn. 6.
21 The General Counsel’s brief does not address the surveillance allegations other than to assert that Sartain photographed the handbillers and the Respondent apparently, therefore, engaged in surveillance.
22 McClellan did not testify. The parties stipulated that he photographed the organizers on May 31.
23 See fn. 18.
24 In his brief, the Respondent’s counsel argues that the Avon Cedar Elementary School jobsite, where the June 1 actions alleged as 8(a)(1) violations occurred, is owned by Avon Community School Corporation, a public corporation, that property owned by a public corporation is not public property in Indiana, and that the organizers did not have permission from the public corporation to enter the property. While the record is devoid of evidence as to the legal status of the Avon Community School Corporation, the record is uncontroverted that the Respondent maintained no private property interest in the site. Thus, when it engaged in the admitted actions alleged as 8(a)(1) violations, the Respondent had no private property rights which entitled it to eject or seek the ejection of the organizers. Indio Grocery Outlet, supra.
25 As to the
June 18 incident, which occurred on a public trail, the Respondent argues in its
brief, that “there was no testimony that the organizers were visiting the trail
as a result of their employment with the
26 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
27 If this
Order is enforced by a judgment of a