CHARITIES, UNIONS AND COURTS FORM HOLIDAY PUZZLE

JENNIFER L. BALJKO

Traditional holiday scenes are starting to pop up everywhere in the retail world. There are decorations in the windows, ads in the newspaper and Salvation Army bell ringers in the front entranceway.

The last custom, though, has become somewhat of a sore spot with retailers in recent years and is still an issue on the minds of operators, union representatives, charity organizers and legal experts who are sorting through the latest round of case law and court decisions.

During the last few holiday seasons, the practice of allowing nonprofit volunteers on private property has come under fire from unions, which claim they should have equal access to the area for informational pickets. Company officials argue they should be able to decide what groups can and cannot solicit on their properties without facing allegations of unfair treatment.

Since the issue picked up steam in 1994, the National Labor Relations Board, the agency that oversees labor disputes, has handed down a number of rulings, with some saying retailers discriminated against the unions by permitting charitable groups on-site and others stating that fund-raising activities do not violate the union's rights or federal laws, according to an NLRB spokeswoman.

However, verdicts delivered by two courts a few months ago may help retailers decide whether to allow such activity near their storefronts. Separate renderings by the Fourth Circuit Court of Appeals in July and the Sixth Circuit Court of Appeals in September state that Riesbeck Food Markets, Clairsville, Ohio, and Cleveland Real Estate Partners, the property manager of a Mayfield Heights, Ohio, strip mall, did not violate federal labor laws or discriminate against unions when they banned certain types of union handbilling but permitted other forms of on-site solicitation by the Salvation Army, the Veterans of Foreign Wars, youth organizations and other nonprofit groups, court documents indicate.

Though the decisions are not binding nationally -- each is binding only in the regions they cover, which include Tennessee, Michigan, Kentucky, Ohio, Maryland, North Carolina, South Carolina, Virginia and West Virginia -- and do not prevent the NLRB from finding other retailers in violation of labor laws, they could serve as precedents for other court cases and legal disputes, said NLRB spokeswoman Tana Adde. Depending on any future outcomes, the matter could possibly make its way to the Supreme Court for review if there are inconsistencies in the rulings, she added.

To help supermarket operators sift through the legal jumble, the Food Marketing Institute, Washington, recommends putting the policy in writing to ward off any potential litigation, said spokeswoman Edie Clark. In last month's periodic update of industry-related matters, the FMI suggests that its members develop a clear distribution and solicitation policy to protect themselves from claims of unfair treatment, she said.

And, because the NLRB has stated that it will decide disparate treatment issues involving labor and charitable groups on an individual basis, it's best for the retailer to post the policy where all groups can see it, she added.

The Salvation Army also has found a way to address retailers' worries during the season, said Dana Ripley, a spokesman for the organization's St. Paul, Minn., branch. "We have started to meet with the chains and open the lines of communication," Ripley said.