Browning'S Foodland, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1987

284 N.L.R.B. 939 (N.L.R.B. 1987)

BROWNING'S FOODLAND 939
Browning's Foodland, Inc. and Retail Store Employ-
ees Union, Local 692, United Food & Commer-
cial Workers International Union, AFL-CIO,
CLC. Case 5-CA-12030
13 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 11 February 1981 Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(1) of the Act by demanding that the
Union cease picketing and handbilling in front of
the Respondent's grocery store, and by causing the
Union's pickets and handbillers to be removed
from the shopping center in which the store is lo-
cated. For the reasons set forth below, we reverse
and dismiss the complaint.
The essential facts are undisputed. The Respond-
ent leases space for its supermarket in a shopping
center with nine other retail store lessees in Frost-
burg, Maryland. The shopping center has a
common parking lot for 450 cars. There are two
entrances to the shopping center, both from State
Route 36, a four-lane road with a speed limit of 40
miles per hour. The main entrance has separate
single lanes for entering and leaving, with a divid-
ing island, and extends into the parking lot for
about 85 yards. The only traffic control is a stop
sign for those leaving the center. The main en-
trance is about 175 yards from the front of the Re-
spondent's store. There is a grassy knoll on the
south side of the main entrance which impedes the
view of the supermarket front from the entrance.
The other entrance consists of a single lane and
does not permit cars to exit onto Route 36, which
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Thy
Wall Products, 91 NLRB 544 (1950), elifd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
at this point is a three-lane road. This entrance is
about 350 yards from the storefront.
At all material times, the Union had collective-
bargaining contracts with the three major food
chains in the Frostburg area—A & P, Acme, and
Safeway. The Union learned in early 19802 that the
Respondent, a nonunion Employer, was going to
begin operations in Frostburg. Immediately after
the Respondent first opened its new store at 9 a.m.
on 17 March, the Union began peaceful picketing
and handbilling at the front of the two entrances to
the supermarket and in the parking lot. None of the
20 to 25 pickets and handbillers were employees of
the Respondent. All were union members em-
ployed by the three major chain stores. It is uncon-
troverted that at all times the Union was engaged
in area standards picketing and handbilling, and did
not have a recognitional object.3
About 1030 a.m., the Respondent's vice presi-
dent, Robert Browning, demanded that the Union's
representative, Theodore Abe, immediately remove
the pickets and vacate the shopping center. After
Abe refused, the Respondent obtained a temporary
restraining order (and, ultimately, a permanent in-
junction) from the Allegheny County Court enjoin-
ing picketing "at or in front of" the Respondent's
place of business. The order defined "place of busi-
ness" to include the Respondent's store, the side-
walks leading to it, and the shopping center park-
ing lot. Pursuant to the restraining order, local
police advised the Union that it could picket and
handbill only at the shopping center's main en-
trance. The Union complied with this directive.
After reviewing then-current Board law and
court precedent, the judge decided that the Re-
spondent's property rights as a lessee in the shop-
ping center must, on balance, yield to the Section 7
rights of the Union's members to picket and hand-
bill in front of the supermarket. In so doing, he re-
jected the Respondent's contention that reasonable
alternatives other than picketing on the Respond-
ent's property existed to communicate the Union's
legitimate objectives to consumers.
Subsequent to the judge's decision, the Board
issued Fairmont Hotel, 282 NLRB 139 (1986), in
which it set forth its view of the proper application
of Supreme Court decisions regarding conflicts be-
tween property rights and Section 7 rights. In Fair-
mont, the Board held that in cases involving such
conflicts, the Board's task is "first to weigh the rel-
2 All dates are in 1980 unless stated otherwise.
3 The picket signs stated: "Do Not Patronize Browning's Foodland-
This Market Is Paying Substandard Wages And Fringe Benefits Com-
pared To Members Of Local 692 Cumberland" The handbills carried a
similar, albeit more lengthy, message.
284 NLRB No. 104
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ative strength of each party's claim." The Board
stated (at 142):
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative.
In applying the Fairmont test to the facts of this
case, the panel members disagree in their initial as-
sessment of the relative weight of employer and
employee interests involved. 4 We agree, however,
4 Chairman Dotson finds that the Respondent's property claim out-
weighs the Union's Sec. 7 claim The Respondent's claim as one of sever-
al retail tenants in a small shopping center with a common parking lot is
not as strong as that of a single store surrounded by its own parking lot
provided exclusively for its own customers. On the other hand, the
Union's area standards claim is one which generally has "no . vital
link to the employees located on the [targeted] employer's property."
Sears, Roebuck & Co. v. Carpenters San Diego Council, 436 U S 180, 206
fn 42 (1978). The strength of the area standards claim here is even more
attenuated because Union Agent Abe's admitted intent to close the Re-
spondent's store was apparently adverse to the employment mterests of
the Respondent's employees. Consequently, the Chairman would find
that the Respondent's property rights should prevail here and would dis-
miss the complaint under the Fairmont test without any consideration of
whether reasonable alternative means by which the Union could have
communicated its message were available.
Member Babson agrees with the Chairman that under Fairmont if the
property claim asserted outweighs the Sec 7 claim, then it is not neces-
sary to evaluate alternative means, and the Board should dismiss the com-
plaint. Member Babson finds, however, that the competing claims of the
Respondent and the Union here are relatively equal in strength. In his
view, the Respondent's property claim is not a strong one. The Respond-
ent's supermarket is in a small shopping center which the general public
is invited to patronize The supermarket is but one of eight contiguous
stores in the center, and the sidewalk in front of the supermarket contin-
ues along the entire row of stores There also are two other businesses in
the shopping center which are situated closer to the adjacent four-lane
highway, Route 36. A customer parking lot is provided directly in front
of the supermarket and in front of the other stores, and there are en-
trances to the parking lot which provide ready access from Route 36.
There are no restrictions on access through these entrances, and the Re-
spondent's supermarket shares the parking lot with nine other businesses
in the shopping center. It is apparent that the shopping center's parking
lot and the sidewalk in front of the Respondent's supermarket are open to
virtually anyone, and certainly they are open to customers of any of the
10 businesses at the center Thus, the Respondent herein has retained
only a very limited property claim to the sidewalk and the parking lot
For the reasons stated by the Chairman, however, Member Babson
agrees that the Union's Sec. 7 claim here is of more limited significance
than other Sec. 7 rights, See Sears, supra Accordingly, Member Babson
finds that under Fairmont, reasonable alternative means of communication
must be considered in this case.
Unlike his colleagues, Member Johansen does not evaluate the Sec 7
claim apart from the factor of reasonable means of communication.
Rather, he views this factor as significant in assessing the nature and
strength of the Sec. 7 claim Fairmont, supra at 143. He agrees, however,
with Member Babson that both property and Sec 7 interests asserted in
this case are otherwise relatively weak and agrees with both his col-
leagues that the General Counsel faded to prove that the Union did not
have reasonable means of communicating its area standards message to its
target audience Agreeing further with Member Babson that this factor is
determinative on these facts, he joins his colleagues in finding that the
that the Union's Section 7 claim is not clearly more
compelling and that, assuming the relative equality
of these interests, the General Counsel has failed to
prove that the Union did not have reasonable alter-
native means to communicate its area standards
message by picketing and handbilling on public
property at the highway entrances to the shopping
center parking lot. 5 At those locations the Union
would have had the opportunity to appeal to all
potential customers of the Respondent as they ar-
rived at the shopping center. We note that, aside
from some speculation by Union Agent Abe con-
cerning the possibility of traffic backups, there is
no evidence that picketing at the driveway en-
trances on public property would pose a safety
hazard or present other problems related to traffic
congestion. Further, Abe indicated that "face to
face contact with the consuming publià going into
the parking area was sufficient" to convey the
Union's position in its area standards dispute with
the Respondent.
We find that there were available to the Union
reasonable alternative means by which it could
have communicated its message to its intended au-
dience, other than picketing and handbilling in the
parking lot and in front of the Respondent's store.
Accordingly, we find that the Respondent did not
violate Section 8(a)(1) of the Act by demanding
that the Union's pickets leave the shopping center.
ORDER
The complaint is dismissed.
Respondent's private property interests were not required to yield to the
Union's Sec 7 claim and, accordingly, in dismissing the complaint.
5 Chairman Dotson makes this finding concerning the availability of
alternative means only because it is necessary to produce a majority opin-
ion where he and Member Babson differ in their assessment of the evi-
dence m the initial stage of the Fairmont test
John M. Glynn, Esq., for the General Counsel.
Warren M Davison and William J. Appel, Esqs., for the
Respondent.
Theoaore Abe, Esq., for the Charging Party.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An
unfair labor practice charge was filed in this case by the
Union on March 19 and a complaint issued on April 18,
1980. A hearing was conducted in Frostburg, Maryland,
on October 2, 1980. Respondent Company, admittedly an
employer engaged in commerce as alleged, opened a gro-
cery supermarket in a shopping center in Frostburg on
March 17, 1980. Charging Party Union, admittedly a
labor organization as alleged, commenced picketing and
handbilling in the shopping center on that same day. The
General Counsel alleges in her complaint that Respond-
ent Company violated Section 8(a)(1) of the National
Labor Relations Act, "in demanding that representatives
BROWNING'S FOODLAND 941
of the Union cease picketing and distiibuting handbills
and leave the premises of the shopping center." Re-
spondent Company denies that its has violated the Act as
alleged.
On the entire record in this case, including my obser-
vation of the witnesses, and after due consideration of
the briefs of counsel, I make the following
FINDINGS OF FACT
I. THE SHOPPING CENTER
The city of Frostburg, situated in the western portion
of Maryland, has a population of some 9000 persons. The
shopping center involved in this proceeding is located
about one-quarter of a mile from downtown Frostburg
and fronts on the southerly side of Route 36. The shop-
ping center, which is open to the public, consists of 10
stores or businesses and a parking lot that can accommo-
date about 450 automobiles. Route 36 runs from Route
48, a major highway in the area, to Route 40, a highway
that becomes or turns into Main Street in Frostburg.
There are two entrances to the shopping center, both
from Route 36. The main entrance, located on the south-
easterly side of Route 36 (see G.C. Exh. 5, point B, and
R. Exhs. 1 and 2) provides separate single lanes for vehi-
cles entering and leaving the parking lot, with a dividing
Island, and runs about 85 yards into the parking lot. The
only traffic control for this entrance/exit is a stop sign
for vehicles attempting to leave the shopping center.
Route 36, at this point, is a four-lane road with a permit-
ted speed of approximately 40 miles per hour.'
There is a line of eight contiguous stores situated on
the top or southerly portion of the shopping center. Re-
spondent's store, Foodland, is located on the extreme
easterly side of this line of stores. Heck's, another retail
establishment, is located on the extreme westerly side of
this line of stores. Respondent's facility occupies approxi-
mately 15 percent of the frontage of the eight stores.
There are also two separate stores or businesses in the
shopping center situated closer to Route 36, i.e., a bank
and pizza facility. (See G.C. Exh. 5.)
There are two entrances to Respondent's Foodland su-
permarket, one on the easterly side and the other on the
westerly side of a vestibule that extends out from the
storefront in a northerly direction. (See R. Exh. 6.) A
sidewalk at the easterly entrance to the store is approxi-
mately 35 feet by 10 feet. A sidewalk at the westerly en-
trance to the store, which is the principally used en-
trance to the store, is approximately 50 feet by 10 feet.
There is also a large "Foodland" sign above the store-
front. (See R. Exhs. 1, 2, 3, 4, and 5.) The east
entrance/exit to the shopping center's parking lot from
Route 36 (point B on G.C. Exh 5) is approximately 175
yards from the Foodland storefront. The west entrance
to the shopping center's parking lot (point C, G.C. Exh.
5) is approximately 350 yards from the Foodland store-
front. There is a grassy knoll on the southerly side of the
The other entrance to the shopping center, situated to the west of the
main entrance/exit, conSists of a single lane and does not permit vehicles
to exit onto Route 36, Route 36, at this point, is a three-lane road (See
point C, G.C. Exh 5.)
east entrance/exit to the parking lot. Consequently, as
Union Representative Theodore Abe explained, a person
standing at the east entrance/exit (point B) "can only see
basically the top of the sign that says Foodland." And, a
person standing at the west entrance (point C) cannot see
the Foodland storefront. 2 (See R. Exhs. 1 and 2.)
II. THE MARCH 17 PICKETING AND HANDBILLING
Union Representative Theodore Abe, in charge of the
Union's western Maryland region, negotiates collective-
bargaining agreements covering some 23 employers and
about 1300 to 1400 employee-members. There are three
major food chains in this area that own or operate ap-
proximately 14 stores (i.e., A & P, Acme, and Safeway)
and they are under contract with the Union. Abe re-
called that during early 1980 he was informed that Re-
spondent, a nonunion employer, was going to open a
store in Frostburg, and the Union determined "that we
would do an informational picket upon them" when they
"opened the store." Abe noted: "My concern primarily
was that the major food companies had told us that they
[were] going to have to reduce their help in their
store[s], which would drop our membership." Abe fur-
ther noted that, as a result of his prior dealings with
Browning's employees, he was aware that "their wages
were much less than what the Union . . . stores' [em-
ployees] were making and their benefits were very
small." Abe denied making "any effort. . . to organize
the employees of Browning's Foodland at Frostburg."3
Abe next testified that about 9 a.m. on March 17, he
and some 20 to 25 members of his Union "congregated
in the parking lot of Browning's Foodland, or of the
shopping center primarily, and viewed" the ribbon-cut-
ting ceremony. Abe recalled:
After the ceremony was over we dispersed the
pickets into the front of the store, into the parking
lot, and. . . pickets at each exit, at the top of the
exits.
Abe explained:
At the Foodland [point "A" on G.C. Exh. 5] we
had pickets basically in front of both entrances in
the vicinity there; we had pickets milling in the area
of the parking lot around the cars; we had pickets
at the entrance coming off the parking lot [at point
"D"]; and also at the other entrance over on the
other side beyond the Pizza Hut we had two pick-
ets there. . . above [point C], up on the parking lot
itself.
None of the pickets were employees of Browning's
Foodland; "most of them were people that were being
2 The parking lot to the shopping center, as noted, has spaces for about
450 cars. Some 125 of these spaces are located proximate to Respondent's
Foodland store.
3 Abe generally acknowledged an "intention," "purpose," or "desire"
"to close up that Frostburg store of Browning's." Abe explained: "It's
the Union's intention to ask the consuming public to shop at Union
stores." Also see G.C. Exhs. 2 and 4, the handbills distributed and picket
signs carried on March 17, as discussed below.
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
affected by the layoff and members of Local 692"; they
"were employees" of A & P, Acme, and Safeway.
Abe further recalled that "on one occasion" on March
17, the Frostburg police chief "said [that] it's a little
crowed here on the sidewalk"; Abe agreed; and "we re-
moved. . . some of" the pickets "off the sidewalk." Abe
acknowledged that, at the time, "there could have been
as many as eight or nine" pickets on the 50-by-10 foot
sidewalk area at the westerly entrance to the Foodland
store's vestibule, and "so we did pull some of those
people off so the flow of people going in and out of the
store was not interrupted:94
The pickets carried signs, 2 feet by 3 feet, stating
(G.C. Exh. 4):
Do Not Patronize Browning's Foodland This
Market Is Paying Substandard Wages And Fringe
Benefits Compared To Members Of Local 692
Cumberland
The pickets also distrubted handbills (G.C. Exh. 2), stat-
ing:
PLEASE DO NOT PATRONIZE BROWNING'S
FOODLAND
Dear Sisters, Brothers and Friends:
This letter is directed to you solely as a member
of the consuming public and to any union member.
We wish to inform you of the existence of a dis-
pute between our organization, Retail Store Em-
ployees Union, Local 692, AFL-CIO, and Brown-
ing's Foodland. Some of the employees of Brown-
ing's Foodland, to this date, have not indicated any
interest in affiliating with our organization or any
other labor organization. That, of course, is their
right which we will respect
However, it is our understanding that their wages
and condition of employment are below those
which we have established and are attempting to es-
tablish in this area for similar work.
As a matter of simple economics, it is clear that
in order to maintain our present union standards
and improve upon them, we must take economic
action against this employer, whose employees are
receiving less. Whether you support us in this dis-
pute by refraining from patronizing the company
during the dispute, is a matter for your individual
decision. We sincerely believe that, in view of all
the circumstances, we are justified in asking for
your support and hope that you will extend it to us.
Sincerely and fraternally yours,
Retail Store Employees Union, Local No. 692,
AFL-CIO
4 Accordmg to Abe, it was "raining" on March 17—"ram [was] pour-
ing down."
PLEASE SHOP UNION AT
A & P-SAFEWAY—ACME
About 10:30 a.m. on March 17, as Abe further testi-
fied, Respondent's vice president, Robert Browning
came out of the crowd and asked me [Abe] to
vacate and remove any pickets immediately.
Abe consulted with his counsel and determined to
"remain there" until "ordered off by the police." Abe's
conversation with Browning "took place off the side-
walk, approximately 10 feet or so off the sidewalk . . .
into the parking lot," Later, "three Allegany County
deputy sheriff cars pulled into the parking lot . . . and
they [the police] said they had injunctions. . telling us
basically that we would have to be removed." (See Jt.
Exhs. 1 and 2, the temporary and permanent injunctions
entered by the Maryland Allegany County Court.)
The restraining order entered herein enjoins, inter alia,
"picketing and establishing and/or maintaining a picket
line at or in front of the place of business of the petition-
er," Browning's Frostburg, Inc. The order defines "place
of business of the petitioner" to
include . . the food store leased by the petitioner,
the sidewalks leading to said food store and the
parking lot leased by the petitioner for service of
customers shopping at the food store.
Abe recalled that following issuance of the above re-
straining order on March 17, the Union's pickets re-
turned and
the city policy basically told us that we had to
picket primarily right on the brim of the road in the
vicinity of the exit on Route 36.
Abe explained that his pickets "stood on each , corner" of
points B and C of General Counsel's Exhibit 5. Abe
added: "on occasion," pickets were on the "dividing
island"; however, "We were required to stand on the
curbing area in the vicinity of . . . what they felt the
State owned." Abe explained that these restrictions re-
sulted in some congestion and backing up of vehicles
when drivers stopped to receive handbills from pickets
or discuss the issues with the pickets.
Abe acknowledged that he did not "consider any
other means of approach to the public in this case." Abe
explained: "I primarily felt that face to ,face contact with
the consuming public going into the parking area was
sufficient." Abe added that he did not "consider newspa-
per coverage for the picketing" because
primarily, the cost was kind of high, and I really
felt the job of contacting the people on the picket
line was more effective, because not everybody, for
example, in a newspaper that circulates all over Al-
legany and Garrett . . . goes to Browning's Food-
land.5
5 There is no newspaper of general circulation based in Frostburg.
However, according to Abe, the Times-News and Cumberland Evening
Continued
BROWNING'S FOODLAND 943
On cross-examination, Abe recalled that on March 17,
Browning
asked me what my plans were and what my inten-
tions were going to be in the future . . . . I told
him, primarily I was going to. . . vacate the prem-
ises at the time. . . And he says. . . I don't know
the exact words . . . how can this be resolved . . .
and I said in jest . . . fme, I'll try to draft up a con-
tract if you want to sign one, maybe we can work
something out.
Abe explained that this comment was "a joke." Brown-
ing, whose testimony is discussed below, also understood
Abe's comment to be a joke. Counsel for Respondent ac-
knowledges that no claim of recognitional picketing is
being made here.
Company Vice President Robert Browning testified
that on March 17, "25 to 30 pickets came right up to
. . . the west entrance of our store." Browning claimed
that "15 or 20" pickets were on the 50-by-10 foot side-
walk area at the westerly entrance to the store's vesti-
bule. Browning acknowledged that the pickets did not
"physically block anyone's entry"—"what they did was
more or less ask the person if they wanted to take a
handbill." According to Browning, the pickets.
thinned down a little bit during the day, but there
was still a number of pickets on the west side, and
they were still there until the injunction [was
served].
Browning noted that there were also pickets at points B
and C General Counsel's Exhibit 5 and in the parking
lot. Browning admittedly "ask[ed] [Abe] to leave the
parking lot or to leave our shopping center." The pickets
did not leave. Later, when the injunction order was
served, Browning asked Abe "what are you going to do"
and Abe said, "I'll be glad to sit down and write a con-
tract anytime." Browning replied: "you're joking."
Browning further testified that "the bulk of business"
at his Frostburg store "comes from a 10 to 15 mile
radius"; that the Frostburg store advertises in the Cum-
berland Times-News; that there were some 300 persons
in attendance at the store's "opening" on March 17; that
it is not uncommon for individuals to go from one store
to another in the shopping center; and that the store has
advertisements or specials on the front windows of the
store.6
Times are published in Cumberland. Respondent advertises in the Cum-
berland Times-News. Cumberland is some 9 miles from Frostburg and
has a population of about 27,000 persons. The Times-News has a circula-
tion of about 34,000 of which some 18,000 customers are in the Cumber-
land area and about 2900 are in Frostburg. The newspaper charges about
$4 75-per-column inch for advertising (See R Exh. 7.)
There is one radio station in Frostburg and two or three in Cumber-
land. The Frostburg radio station is only on the air 12 hours a day There
are no local television stations Abe noted that "we have a cable system"
and, consequently, the television programs often viewed in the area origi-
nate from 85 to 140 miles away from Frostburg.
6 Michael O'Rourke, a representative of the Union, in answer to a line
of questions concerning the possible use of "larger picket signs" further
away from the store front, explained that the pickets could not use
"larger picket signs" because "ususally in Frostburg the wind blows, you
know, fairly strong, and it would Just get them and whip them around."
The testimony summarized above is essentially undis-
puted. There are, however, some differences in the testi-
mony of Abe and Browning concerning the March 17
sequence of events. Insofar as the testimony of Abe con-
flicts with that of Browning, I credit the testimony of
Abe as more detailed, accurate, and reliable. I also credit
the testimony of O'Rourke, noted supra. O'Rourke's tes-
timoy is essentially uncontroverted.
III. DISCUSSION
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956), the Supreme Court held that
an employer may validly post his property against
non-employee distribution of union literature if rea-
sonable efforts by the union through other available
channels of communication will enable it to reach
the employees with its message. . . .
The Court noted that "accommodation between" "orga-
nization rights" and "property rights" "must be obtained
with as little destruction of one as is consistent with the
maintenance of the other." Also see Central Hardware v.
NLRB, 407 U.S. 539 (1972); Hudgens v. NLRB, 424 U.S.
507 (1976); and Sears, Roebuck & Co. v. San Diego
County District Council of Carpenters, 436 U.S. 180
(1978). In the instant case, the General Counsel argues
that the Union was engaged in "informational" or "area
standards" picketing and handbilling that is protected by
Section 7 of the National Labor Relations Act; the
Union had "no reasonable effective alternative to picket-
ing and handbilling in front of' Respondent's Foodland
store; and, consequently, Respondent, by causing the
pickets and handbillers to be removed from the shopping
center premises on March 17, interfered with employee
Section 7 rights in violation of Section 8(a)(1) of the Act.
On the other hand, counsel for Respondent argues that
"Browning's property interests should not yield to the
Union's objective of driving it out of business" and "rea-
sonable alternatives other than picketing on Browning's
property exist to communicate legitimate Union objec-
tives to the consuming public." Counsel for Respondent
notes (Br. 2): "A resolution of the issue requires striking
the appropriate balance between Browning's property in-
terests and the legitimate interests of the Union to dis-
seminate its message to the public by placing pickets on
Browning's property." The question, of course, is where
to strike this "balance" on the facts of this case.
Recently, in Giant Food Markets, 241 NLRB 727, 728
(1979), the Board was called on to "accommodate the
Section 7 rights and private property rights" of the par-
ties on facts similar in many respects to those found in
the instant case. The Board reasoned in Giant Food, as
follows:
In accommodating the respective rights of the
parties, it is necessary to examine and weigh several
factors. . . . [lit may be argued that area standards
picketing is not for the benefit of the Employer's
employees, but rather for the benefit and protection
of complete strangers to this employment relation-
ship. Therefore, such picketing should not be al-
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lowed on the Employer's premises However, as we
noted earlier, area standards picketing is a protected
Section 7 right and is for the protection of "em-
ployees" represented by the union. The fact that the
employees whom the picketing is primarily meant
to benefit are not those of the picketed employer is
not as important in our view as is that fact that the
employer being picketed is the employer with
whom the union has the dispute. It is this employer
which the Union charges is undermining the liveli-
hood of the represented employees m the area. It
logically follows that the location of the employer's
business is where the union can reasonably expect
its picketing and handbilling to have the most
impact. Moreover, there is also a strong possibility
in such a situation that such union activity, if suc-
cessful, will inure to the benefit of the employer's
employees through increased compensation.
Also to be considered as a factor is the intended
audience of the pickets. Here the audience which
the pickets intend to reach with their message obvi-
ously includes Giant and its employees. However,
the primary intended audience consists of the poten-
tial customers of Giant who become readily identifi-
able only when they decide to enter the store,
which may be on impulse when they see an adver-
tisement in the window. In a situation such as this,
where there is more than the one store in the shop-
ping center (albeit in this case there are only two
stores as compared with 60 in the Hudgens situa-
tion), this is particularly true.
In this regard we find this case distinguishable
from Babcock and Wilcox and other cases involving
organizational solicitation. As noted in Scott Hud-
gens, supra, where, as in organizational situations,
the audience is specific (the employees to be orga-
nized), means of communication other than direct
entry onto the employer's property (use of mail,
telephone, personal contact, etc.), may afford rea-
sonable access to that audience. However, where, as
here, the intended audience is not readily identifia-
ble until the audience attempts to enter the store,
such other means of communication cannot be con-
sidered "reasonable" in relation to their possible ef-
fectiveness.
In a similar vein, requiring that any picketing or
handbilling be conducted off the private property,
at entrances to the picketing lot 250 feet or more
from the store entrance . . . would too greatly
dilute the Union's message for it to be meaningful.
This result would follow not only from the fact that
Giant is not the only store located at the shopping
center, but also because motorists entering the park-
ing lot from the adjoining public road would be
more concerned with safely making their entrance
than with reading a picket sign or attempting to re-
ceive a handbill at the roadside.
Another factor to be taken into account is the
likelihood of a union's picketing enmeshing neutral
employers in its dispute with a particular store in a
shopping center. With a momentary glance at the
picketing, a potential shopper at the center might
quite reasonably infer that the entire center was
being picketed and refuse to enter the center at all.
Indeed, it would seem that requiring the pickets to
station themselves at the entrances to the parking
lot in this case would be more detrimental to neu-
tral Kresge's business than if the pickets were sta-
tioned directly in front of the Giant store.
The Board, noting, inter alia, that "the property here is
open to the public," concluded (at 729):
Balancing the foregoing factors weighing in favor
of the right to picket in front of the Giant store
against the reasons for prohibiting such picketing,
pursuant to the Babcock & Wilcox criteria, we con-
clude that respondents' property rights must yield
to the pickets' Section 7 rights.
On review, the United States Court of Appeals for the
Sixth Circuit denied enforcement of the Board's Order in
Giant Food Markets v. NLRB., 633 F.2d 18 (6th Cir.
1980), and remanded the case to the Board to take fur-
ther evidence on the questions presented. The court
noted, inter alia, that the administrative law judge in
Giant Food found no coercive conduct proscribed by
Section 8(a)(1) and therefore did not reach the Babcock
& Wilcox "balance" or "accommondation"; that the
Board "determined that the union activity was protected
and then went on to reverse the decision of the adminis-
trative law judge on the issue of the Section 8(a)(1) vio-
lation"; and further stated (at 26):
The Board's holdings that the picketing at the park-
ing lot entrance would dilute the union's message
and tend to enmesh a neutral employer have the
force of logic, but the Board made these conclu-
sions almost as if by judicial notice without the ben-
efit of supporting evidence.?
Subsequently, in Seattle-First National Bank v. NLRB,
651 F.2d 1272 (9th Cir. 1980), the court sustained the
Board's finding that "a union may station picketers in a
foyer in front of the entrance to a restaurant located on
the 46th floor of an office building." The court held (at
1276):
In the final analysis, our approval of the Board's
conclusion that pickets should be allowed on the
46th floor rests on the peculiar nature of picketing.
Even if the union can adequately inform most of the
restaurant's customers of the existance of the strike
without stationing picketers on the 46th floor, the
union cannot fully implement its section 7 rights
without confronting the customers in front of the
z The court, in like vein, explained (Mid)
[T]here is no evidence in the record pertaining to the traffic flow or
degree of congestion on the thoroughfare adjoining the parking lot,
how often cars turn into the parking lot, how much opportunity oc-
cupants of cars have to observe and read the picket signs, whether
or not the pickets had an opportunity to converse with the consum-
ers, what methods are used to measure the effectiveness of area
standards picketing, or the reasons the union judged the picketing
near parking lot entrance ineffective
BROWNING'S FOODLAND 945
restaurant. Picketing is more than mere dissemina-
tion of information. "The loyalties and responses
evoked by picket lines are unlike those flowing
from appeals by printed words:' Hughes v. Superior
Court, 339 U.S. 460, 465 . . . (1950). The union's
picketing is clearly much more effective on the 46th
floor, where the restaurant customers and nonstrik-
ing employees are identifiable, than at the entrance
to the building. Restricting picketing to the en-
trances to the building would substantially dilute
the union's section 7 rights since the effectiveness of
a picket line depends on the location. United Steel-
workers v. NLRB, 376 U.S. 492, 499-500. . . (1964);
Hudgens v. NLRB, 501 F.2d 161 . . . (5th Cir.
1974), rev'd on other grounds, 424 U.S. 507 . .
(1976). While "a union does not have an absolute
right to picket at every point of optimum effect
. . ." Hudgens v. NLRB, supra, 501 F.2d at 169, al-
lowing picketing on the 46th floor permits the
union to implement its section 7 rights effectively.
Since this may be allowed while accommodating
the petitioner's private property rights, the decision
of the Board that the petitioner violated section
8(a)(1) is affirmed.
The court noted: "We do not think the burden imposed
on the union in organizational cases is invariably appro-
priate in economic strike activity cases" and "unions
should be allowed to picket in support of a strike in an
effective manner whenever possible." The court, howev-
er, added (at 1276):
A different accommodation might be appropriate if
some activity not at the core of section 7, such as
area standards picketing, were at issue. See Sears,
Roebuck & Co. v. Carpenters, 436 U.S. 180, 214. .
(1978) (Powell J., concurring); but cf. Giant Food
Markets, Inc., 241 NLRB No. 105, 6. . . (June 10,
1977) (area standards picketing permitted on private
property).
The case was remanded to the Board "with instructions
that it revise its order" pertaining to the nature and
scope of the activity permitted on the 46th floor.
The principles of law that are controlling here were
restated by the Board and approved by the Sixth Circuit
in Giant Food Markets v. NLRB, supra. As the court ex-
plained in Giant Food Markets (at 23-25):
The situation confronting this Court . . . does
not involve a union's attempt to communicate with
employees. In this case, the union was engaged in
area standards picketing and the intended audience
was comprised of consumers and potential patrons
. . . . It is . . . beyond dispute that area standards
picketing is lawful and protected under section 7 of
the NLRA. . . . [Area] standards pickets must be
allowed a reasonable means of communicating with
the consumers. When the consumers potentially
come from a large metropolitan area and cannot be
categorized as a specific group patronizing a specif-
ic type of store, expensive, extensive mass media or
mailer campaigns should not be required. . . .
[T]he union should not be forced to incur exorbitant
or even heavy expenses. A mass media campaign
would also diffuse the effectiveness of the communi-
cation by being physically removed from the actual
location of the store whose policies are at issue and
would prevent any personal contact between the
union and the intended audience.8
Applying these principles to the evidence of record
here, as detailed supra, I find and conclude that Re-
spondent Foodland's property rights as a lessee in the
Frostburg shopping center must, on balance, yield to the
Section 7 rights of the employee pickets to picket and
handbill in front of the Foodland store in the shopping
center. I find and conclude that Respondent, in demand-
ing that the employee pickets be removed from the shop-
ping center on March 17, interfered with their Section 7
rights in violation of Section 8(a)(1) of the Act. Thus, on
March 17, the Union's pickets carried 2-by-3 foot signs
urging potential customers of Foodland, "Please Do Not
Patronize. . . FoodIand"—"This Market Is Paying Sub-
standard Wages And Fringe Benefits Compared To
Members Of Local 692." Potential customers were also
given handbills containing a similar message, urging
them "not to patronize" Foodland because "their wages
and conditions of employment are below those which we
have established and are attempting to establish in this
area for similar work." The potential customers were
asked: "Please Shop Union At A & P—Safeway-
Acme," which are food market chains under contract
with the Union. Union Representative Abe explained the
basis for this area-standards claim and counsel for Re-
spondent makes no real effort here to refute the Union's
assertion that Foodland's "wages and conditions of em-
ployment are below those which we have established
arid are attempting to establish in this area."
Counsel for Respondent argues that "reasonable alter-
natives other than picketing on Browning's property
exist to communicate legitimate Union objectives to the
consuming public." Counsel points to "placing pickets at
the entrances to Browning's property." However, the
main entrance to this shopping center is some 175 yards
from the Foodland storefront. There is a grassy knoll be-
tween this entrance and the storefront and, under the cir-
cumstances, potential customers of Foodland in the ship-
ping center, who are attrached to the store by window
displays and advertisements, cannot view the 2-foot by 3-
foot signs carried by pickets some 175 yards away. A
smaller entrance to the shopping center some 350 yards
from the Foodland storefront also will not permit poten-
tial customers to view the pickets' signs. In response,
counsel for Respondent , suggests that the pickets use
larger signs, 10 feet by 12 feet, and "hold them up on
sticks." Union Representative O'Rourke explained that
the wind would destroy or render useless such signs.
In addition, requiring pickets to confront shopping
center customers at a diiveway entrance from a four-lane
Cf. Hutzler Bros. Co. v. NLRB, 630 F.2d 1012 (4th Cir. 1980), cited
by counsel for Respondent, in which the court reversed a Board order
and denied enforcement in the context of a union's "organizational
effort" as distmguished from area standards picketing and handbilling,
which is involved here.
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
highway, which permits a speed of about 40 miles per
hour in an area where there are no traffic signals or side-
walks, is not a reasonable alternative to picketing peace-
fully in the shopping center in front of Brovvning's store.
Indeed, Union Representative Abe generally explained
that efforts to get the Union's message to shopping
center customers at this driveway entrance resulted in
traffic congestion and backups. Counsel for Respondent,
in response, argues that the pickets "could face the exit-
ing rather than entering cars," noting that the main en-
trance has a stop sign for exiting cars only. However, ap-
peals to customers that they not shop at a store after
they have patronized the store are not a reasonable or ef-
fective alternative to making such appeals in advance.
Moreover, requiring the Union's pickets to stand at the
main entrance driveway to the shopping center may,
under the circumstances present here, enmesh the nine
other neutral tenants of this shopping center in this dis-
pute. And, as the Ninth Circuit noted in Seattle-First Na-
tional Bank v. NLRB, supra, "Restricting picketing to the
entrances . . . would substantially dilute the Union's
Section 7 rights since the effectiveness of the picket line
depends on its location."
Counsel for Respondent next cites the mass media as
alternatives to picketing in the shopping center, noting,
inter alia, that "an advertisement of nine column inches
would cost $42.75 each week" in the Cumberland Times-
News. However, as the Sixth Circuit noted in Giant
Food Markets v. NLRB, supra (at 2425), "When the con-
sumers potentially come from a large metropolitan area
and cannot be categorized as a specific group patronizing
a specific store, extensive expensive mass media or mail
campaigns should not be required," and a "mass media
campaign would also diffuse the effectiveness of the
communication by being physically removed from the
actual location of the store . . and would prevent any
personal contact between the union and the intended au-
dience." Here, Union Representative Abe discounted use
of the newspaper advertisements as "kind of high" when
compared with his nominal and modest picketing or
handbilling costs. He also noted that the Times-News is
distributed to many counties and only a small percentage
of its circulation is received by Frostburg residents. (See
R. Exh 7.)
In sum, on this record, I fmd and conclude that Re-
spondent, in demanding that the Union's pickets leave
the shopping center and denying them the right to picket
in front of the Foodland store, violated Section 8(a)(1),
as alleged.9
9 Counsel for Respondent also argues (Br. 15) that the "Union's sole
motivation was to drive Browning's out of business to promote the anti-
competitive goal of reserving the available shopping business to union-
ized supermarkets," citing, inter aka, United Mine Workers v. Pennington,
381 U.S 657 (1965) Counsel is relying on the candid acknowledgements
by Union Representative Abe, in part as follows
Q And it is still the Union's mtention to shut Browning's down, in
Frostburg?
A. It's the Union intention to ask the consuming public to shop at
Union stores.
For the purpose of—and if Browning's has no business they will
go out of business, right?
CONCLUSIONS OF LAW
1. Respondent Browning's Foodland, Inc. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 692, United
Food & Commercial Workers International Union,
AFL-CIO, CLC, Charging Party, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By demanding that the Charging Party's pickets and
handbillers leave the Frostburg shopping center premises
while they were engaging in protected activity under
Section 7 of the Act, Respondent has violated Section
8(a)(1) of the Act, as alleged.
4.The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Browning's Foodland,
Inc. violated Section 8(a)(1) of the Act, I shall order that
it cease and desist therefrom and that it take certain af-
firmative action that will effectuate the purposes and
policies of the Act, including the posting of the attached
notice.
Counsel for the General Counsel argues that, in order
to effectuate the policies and purposes of the Act, Re-
spondent should also be ordered to modify that portion
of its outstanding injunction order (Jt. Exhs. 1 and 2)
that, in effect, "remove[s] the Union handbillers from the
shopping center property" (Br. 11). Insofar as the out-
standing injunction order prohibits peaceful picketing
and handbilling in the shopping center, as found protect-
ed herein, Respondent will be ordered to take whatever
steps or procedures are necessary to cause the injunction
order to be modified to remove such proscription.
[Recommended Order omitted from publication.]
A I would assume, I don't think it would be profitable for them
to stay in business, no.
Q. You would hope that they would Just go away and stop pro-
viding competition for your unionized stores, correct?
A. I certainly wouldn't be unhappy, I'll tell you.
Q. You wouldn't be unhappy, but that is your intention, that is
your desire, correct?
A I would say that was it
However, the entire record in this case, including the picket signs and
handbills, makes it quite clear that the Union was engaged in lawful area-
standards picketing and handbillmg. In this context, I do not find that
Abe's acknowledgements sufficiently detract from the publicized lawful
area-standards object and purpose of the picketing And, as the Supreme
Court noted m Pennington, supra*
Unilaterally, and without agreement with any employer group to
do so, a union may adopt a uniform wage policy and seek vigorously
to implement it even though it may suspect that some employers
cannot effectively compete if they are required to pay the wage
scale demanded by the union The union need not gear its wage de-
mands to wages which the weakest units in the industry can afford
to pay. Such union conduct is not alone sufficient evidence to main-
tain a union-employer conspiracy charge under the Sherman Act.
There must be additional direct or indirect evidence of the conspira-
cy.
There is, of course, no evidence here of such conspiracy or an unlawful
object or purpose.