Smitty'S Super Market, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1987

284 N.L.R.B. 1188 (N.L.R.B. 1987)

1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Smitty's Super Market, Inc. and Retail Store Em-
ployees Local 322, affiliated with United Food
and Commercial Workers International Union,
AFL-CIO itt CLC. Case 17-CA-9187
23 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 6 March 1981 Administrative Law Judge
Jesse Kleiman issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed cross-exceptions and a supporting brief.' The
General Counsel also filed a brief in answer to the
Respondent's cross-exceptions.
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, 2 and
conclusions, as explained below, and to adopt the
recommended Order.
The judge found that the Respondent did not
violate Section 8(a)(1) of the Act by ordering the
Union's pickets to leave its premises and by calling
the police to remove the pickets. We agree with
the judge's finding for the reasons set forth below.
The essential facts are undisputed. The Respond-
ent operates a superniarket in a small, open shop-
ping center in Springfield, Missouri. The Respond-
ent is the sublessee of the premises, and its super-
market is the dominant enterprise in the shopping
center, which also includes seven other businesses
located around a central parking lot. The shopping
center is bound on the west by a six-lane highway,
South Glenstone Avenue (Glenstone), and on the
north and south by smaller roads. Sidewalks sepa-
rate the center's parking lot from all roads, and a
grassy state-owned right-of-way parallels Glen-
stone and abuts the western edge of the parking
5 We deny the Respondent's request for payment of costs and litigation
expenses associated with this proceeding and Cases 17-RM-642 and 17-
RM-645.
2 The judge inadvertently stated in par. 1 of sec. III,C, of his decision
that the complaint referred to events of 27 September 1978 rather than 27
September 1979. In par. 9 of that section the judge inadvertently omitted
the word "not" after the word "would" in the first sentence quoted from
the district court's opinion in Getreu v. Bartenders Local 58, 181 F.Supp.
738 (D.C. N. Ind. 1960).
Finally, we do not agree with the judge's statements at fn. 13 of the
decision that the appearance of a Board agent at the picketing site on the
day the pickets moved onto the Respondent's property is "strikingly co-
incidental" or that it constitutes evidence supporting an inference that the
Board solicited a charge or participated with the Union to "trump up" a
case.
lot. There are six entrances to the center—two
along each bordering road.
The Respondent's supermarket opened in Sep-
tember 1977 and soon thereafter the Union began
picketing. None of the pickets were employees of
the Respondent. The Respondent obtained a tem-
porary restraining order against the picketing
which was modified in March 1978 to enjoin only
in-store picketing or interference with pedestrian or
vehicular traffic. The Union resumed picketing
from 23 February 1979 to 4 April 1979, and from 7
September 1979 to 11 December 1979. 3 With the
exception of the incident underlying the complaint
in this case, all of the Union's picketing was con-
ducted on the grassy, state-owned right-of-way or
at the entrances along the northern and southern
boundaries of the shopping center. At all material
times, the pickets carried signs which read:
NOTICE TO PUBLIC. PLEASE DO NOT SHOP SMIT-
TY'S. SMITTY'S EMPLOYEES ARE NOT UNDER
CONTRACT WITH UNITED FOOD AND COMMER-
CIAL WORKERS LOCAL 322, AFL-CIO. WE ARE
NOT ON STRIKE—WE ARE NOT ASKING
ANYONE TO QUIT THEIR EMPLOYMENT OR
CEASE DELIVERIES! UNITED FOOD AND COM-
MERCIAL WORKERS, DISTRICT LOCAL 322, AFL-
CIO. RETAIL STORE EMPLOYEES UNION.
On 27 September union-paid pickets Berry,
Compton, and Hoffman met at the grassy right-of-
way and began picketing. Sometime later, Berry
and Hoffman walked across the shopping center's
parking lot, with their signs, toward the Respond-
ent's supermarket. About 50 feet from the store,
two of the Respondent's agents met them and told
them to get off the parking lot. The pickets com-
plied. Soon after the pickets returned to the right-
of-way, a Board agent appeared and asked Berry to
accompany her to a nearby restaurant to give a
statement. As Berry left she told the other pickets
that they could picket in front of the Respondent's
supermarket if they desired. Hoffman and Compton
then walked to the sidewalk in front of the Re-
spondent's store and began picketing. The Re-
spondent's agent appeared and ordered them to
leave. When the two pickets refused, the Respond-
ent's agent contacted the police who forced the
pickets to return to the public right-of-way separat-
ing Glenstone from the parking lot.
After reviewing then-current Board law and
court precedent, the judge determined that the Re-
spondent's property rights were not required to
yield, on balance, to the Union's Section 7 right to
picket on the private property on the sidewalk or
3 All subsequent dates are in 1979, unless stated otherwise.
284 NLRB No. 128
SMITTY'S SUPER MARKET

1189
parking area in front of the Respondent's store. In
this regard, the judge found that the Union had
failed to prove that picketing on the public right-
of-way between the entrances to the shopping
center was not a reasonable alternative means of
communicating its message to the intended audi-
ence of the public-at-large and customers of the
Respondent.
Subsequent to the judge's decision, the Board
issued Fairmont Hotel, 282 NLRB 139 (1986),
where it held that in cases involving conflicts be-
tween property rights and Section 7 rights, the
Board's task is "first to weigh the relative 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.
Factors that may affect the relative strength or
weakness of an asserted property right include the
following: the use to which the property in ques-
tion is put, any restrictions placed on public access
to the property or to the facility located on the
property, and the size and location of the private
facility. By way of example, the Board noted that
"a single store surrounded by its own parking lot
provided exclusively for the convenience of cus-
tomers will have a significantly more compelling
property right claim" than "the owner of a large
shopping mall who allows the general public to uti-
lize his property without substantial limitation." Id.
at 141. Concerning the Section 7 right, factors that
may affect the relative strength or weakness of
such a right include the following: the nature of
the right asserted, the purpose for which it is being
asserted, the employer that is the target of the ac-
tivity, the situs of the activity, the relationship of
the situs to the target, the intended audience of the
activity, and, possibly, the manner in which the
right is being asserted. Id. at 142 By way of exam-
ple, the Board noted that "organizational rights and
the right to engage in primary economic activity at
the situs of a dispute may be viewed as more com-
pelling than handbillhig and other informational ac-
tivity at locations other than the primary situs."
Ibid.
Applying the Fairmont analysis to the facts of
this case, the panel members disagree in their initial
assessment of the relative weight of employer and
employee interests involved. 4 We agree, however,
that the Union's Section 7 claim is not clearly more
compelling5 and that, assuming the relative equali-
ty of these interests, the General Counsel has failed
to prove that the Union did not have reasonable al-
ternative means to communicate its message to the
public.° For the reasons set forth by the judge, we
4 Chairman Dotson finds that the Respondent's property claim out-
weighs the Umon's Sec. 7 claim. The Respondent's claim is not as strong
as that of a single store surrounded by its own parking lot provided ex-
clusively for its own customers. It is, however, the dominant tenant, quite
Rely attracting the most customers, in a small eight-store shopping
center._ Regarding the Union's activity, as noted by the judge, the mes-
sage that the Respondent had no contract with the Union suggests a po-
tential re-cognitional and bargaining objective. The Union's present pur-
pose, however, was essentially informational and limited to an appeal to
members of the public. The picketing did not appeal directly to the Re-
spondent's employees to begin or to join an organizing campaign nor did
it demand recognition from the Respondent as the exclusive representa-
tive of its employees. Instead, the picketing asked the public not to pa-
tronize the supermarket because it was nonunion. Although relatively
stronger than the area standards secondary activity involved in Fairmont,
the informational picketing here has little relationship to the Respondent's
employees and is of limited significance as it is not at the "core of the
purpose for which the NLRA was enacted." Sears, Roebuck & Co. v. San
Diego County Council of Carpenters, 436 U.S. 180, 206 fn. 42 0978). Con-
sequently, Chairman Dotson would find that the Respondent's property
rights should prevail under the Fairmont test without any consideration
of whether the Union had reasonable alternative means of communica-
tion.
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 distass 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 small
shopping center in which the Respondent's store is located is open to the
public without substantial limitation. There are six entrances to the shop-
ping center which provide ready access from a major thoroughfare and
two other roads which are all about 200 yards lima the Respondent's
store. Access to the shopping center's parking lot is unrestricted, and the
Respondent shares the parking lot with the seven other businesses in the
center. It is apparent that both the parking lot and the sidewalk in front
of the Respondent's supermarket are open to virtually anyone, and cer-
tainly they are open to customers of any of the eight businesses at the
center. Thus, the Respondent 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, while protected, is of more limited significance than other Sec. 7
rights. See Sears, supra. Accordingly, Member Babson finds that the
nghts asserted by each party are relatively equal and 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 failed to prove that the Union did not
have reasonable means of communicating its message to its target audi-
ence. Agreeing further with Member Babson that this factor is determina-
tive on these facts, he joins his colleagues in finding that the Respond-
ent's private property interests were not required to yield to the Union's
Sec. 7 claim and, accordingly, in dismissing the complaint.
5 We find no merit in the Respondent's argument that the picketing
was unprotected because in contravention of the restrictions of Sec.
8())(7).
6 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 in the initial stage of the Fairmont test.
1190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
find that picketing on the public, grassy, right-of-
way areas at the entranceways to the shopping
center, especially the area adjacent to Glenstone
Avenue, constituted effective ways to deliver the
Union's message to the targeted audience. There is
no evidence that these sites created unacceptable
communication problems with persons entering the
shopping center. On the contrary, these locations
gave the Union the opportunity to appeal to all po-
tential customers of the Respondent as they arrived
at the shopping center In fact, the Union conduct-
ed its picketing at these public locations for many
days both before and after its attempt to move its
activity to the Respondent's private property.
Further, none of the pickets testified that there
was any hazard to their picketing activities created
by their walking back and forth across the en-
tranceways or that there were any problems with
drivers of cars entering the parking lot. As the
judge noted, Glenstone Avenue is a six-lane high-
way with the right lane in each direction constitut-
ing a turning lane which provided a comparatively
safe means to enter or exit from the parking lot.
Accordingly, we fmd that the Respondent's pri-
vate property interests were not required to yield
to the Union's Section 7 claims, and therefore the
Respondent did not violate Section 8(a)(1) of the
Act by prohibiting union picketing at the sidewalk
in front of its store or in the shopping center's
parking lot.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Julie K Hughes, Esq., for the General Counsel.
Donald W Jones Esq. (Jones, Keefer, Karchmer, Nelms &
Sullivan), of Springfield, Missouri, for the Respondent.
Benjamin J. Francka, Esq., of Springfield, Missouri, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On a
charge filed in Case 17-CA-9187 on September 13, 1979,
by Retail Store Employees Local 322, affiliated with
United Food and Commercial Workers International
Union, AFL-CIO & CLC (the Union) the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 17, Kansas City, Kansas,
issued a complaint and notice of hearing on January 15,
1980, against Smitty's Super Markets, Inc. (the Respond-
ent) alleging that the Respondent engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) of the National Labor Relations Act (the Act).
On January 17, 1980, the Respondent filed an answer de-
nying the material allegations in the complaint.
A bearing was held before me in Springfield, Missouri,
on May 1 and 2, 1980. All parties were afforded full op-
portunity to appear, to introduce evidence, to examine
and cross-examine witnesses, to argue orally on the
record, and to file briefs. Thereafter, the General Coun-
sel, the Respondent, and the Charging Party filed briefs.
During the hearing the Respondent raised objections
and moved to strike
any allegations concerning September 27, 1979, be-
cause they are not alleged in the charge, and its a
violation of Section 10(b) of the Act for the Gener-
al Counsel to initiate a charge that is not of an
unfair labor practice; and going beyond the scope of
the charges which was filed September 13, 1979, it
could not have related to any events after that date,
and I move to strike any allegations from the com-
plaint and exclude from testimony any allegations of
any events dating after September 13, 1979.
• . . that they have not even amended the charge,
and it's basically a violation of due process. When
they investigate the charge, we defend the charge,
and then they come in here and file a complaint on
something entirely different, and it's a violation of
our due process rights and in violation of Section
10(b) of the Act also.
I reserved decision on the motion but allowed the Gen-
eral Counsel to submit evidence concerning the unfair
labor practices alleged in the complaint.
Further, the Respondent, both prior to the commence-
ment of this proceeding and during the course thereof,
moved for an adjournment of this matter for the reason
that David Trottier, the Respondent's "chief executive
officer" and the "individual who is named in the com-
plaint as being allegedly responsible for the conduct
complained about" was in the hospital undergoing sur-
gery and could not appear as a witness and the Respond-
ent could not therefore properly present its case. The
Respondent, however, did not "seriously object" to
counsel for the General Counsel "putting in" her evi-
dence prior to the Respondent's making a subsequent
motion for the adjournment at the time it had to present
its evidence herein. At the end of the case, however, the
Respondent waived "the opportunity of Mr. Trot-tier to
come back and testify," and did not renew its motion for
an adjournment.
At the conclusion of the General Counsel's case, the
Respondent moved to dismiss the complaint for failure of
proof. I denied the motion. The Respondent renewed its
motion to dismiss at the close of the hearing and I re-
served decision thereon. In its brief the Respondent again
moved to dismiss the complaint on the grounds
That the charge dated September 13, 1979, referred
to alleged violations prior to that date which could
not be encompassing the subsequent date of Septem-
ber 27, 1979, and therefore that General Counsel
violated Section 10(b) of the Act by initiating a
complaint beyond the scope of the charges and also
SMITTY'S SUPER MARKET 1191
violates Respondent's rights to due process of law
by claiming violations now which were not in the
charge served on Respondent, the only incidents al-
leged as violations against Respondent took place.
and also for failure of proof. For the reasons hereinafter
set forth, but not necessarily for the same reasons assert-
ed by the Respondent, I grant the Respondent's motion
to dismiss the complaint in its entirety.
On the entire record and the briefs of the parties and
on my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, is and has been
a corporation organized under and existing by virtue of
the laws of the State of Missouri, engaged in the retail
sale of groceries and related products in the course of
which it operates two supermarkets in Springfield, Mis-
souri. Store 1, at which the alleged unfair labor practices
occurred, is located at 218 South Glenstone Avenue'
1 The Respondent is the sublessee of the premises at 218 South Glen-
stone, including the parking lot area and pays in excess of $100,000 per
year for this lease.
Store 1 is located approximately 200 yards from South Glenstone
Avenue (Glenstone), a six-lane major north-south thoroughfare (two traf-
fic lanes going in each direction and a third right-hand lane for traffic
turning off that avenue), which runs along the western boundary, of what
can be characterized as a small shopping center, and approximately 200-
250 yards from East Cairo Street on the shopping center's southern
boundary. The shopping center is comprised of the Respondent's prem-
ises consisting of the supermarket and an adjacent restaurant and the
Empire Printing Co. building on its eastern boundary; the Color Tile,
Midas Muffler, Standard Service Station, and Medical Buildings on the
north; and a Phillips 66 gasoline station on the southwest corner all sur-
rounding a large central parking lot. There are six entrances to the shop-
ping center and central parking area, two along Glenstone, two along
East Cairo Street that borders the shopping center on the south (East
Cairo runs in an east-west direction), and two along East St. Louis Street
bordering on the north (East St Louis also runs in an east-west direc-
tion.) A grassy "state-owned right-of-way" area, which parallels Glen-
stone, separates the parking lot from the Glenstone roadway. Although
there is some dispute as to the use of the parking lot facilities fronting the
Respondent's building, by customers of the other businesses located in
the shopping center, the evidence tends to show that these companies,
which are housed in separate buildings, have their own designated park-
ing areas in the shoppmg center parking lot in front or on the side of
their respective buildings although in the nature of most shopping centers
everywhere persons driving onto the parking lot can readily park any-
where thereon. It also appears that the major part of the parking lot, es-
pecially that portion situated in front of the Respondent's store with
painted designated parking spaces and running all the way to the grassy
right-of-way area at the western edge of the shopping center that paral-
lels Glenstone, is used primarily by the Respondent's customers, although
on occasion patrons of the other businesses do use the area for parking.
Further, store 1 is located in a large building, containing approximately
74,000 square feet of space, with various departments therein that are
usually found in a supermarket business, plus a separate restaurant at the
northeast corner of the building. A sidewalk runs the length of the store
in front of this building in a north-south direction. There is a canopy
over the main entrance doors that covers the sidewalk and although it is
glass enclosed it has openings that allow people to pass under it while on
the sidewalk walking north or south and an opening to the west to allow
entry from the parking lot area in front of the store. Jeff Kollmeyer, a
witness for the Respondent testified that the Respondent has consistently
prohibited persons other than their customers from using the parking area
between the front of the store and Glenstone, requiring truckers and
used-car salesmen who have parked thereon to move their vehicles off
the lot. He also testified that on occasion the Respondent has asked the
Union's pickets to remove their parked cars from the parking area. Ac-
and store 2 at 3101 South Glenstone Avenue in Spring-
field, Missouri. In the course and conduct of the Re-
spondent's business operations during the preceding 12
months, these operations being representative of its oper-
ations at all times material, the Respondent purchased
and caused to be transferred and delivered to its facilities
within the State of Missouri goods and services valued in
excess of $50,000 directly from sources located outside
the State of Missouri. The complaint alleges, the Re-
spondent admits, and I find that the Respondent is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent's operation at store 1 at all times ma-
terial was managed by David Trottier, the Respondent's
vice president and the general manager of this store and
Jeff Kollmeyer, the produce manager. The General
Counsel alleges, the Respondent admits, and I find that
the above-named persons are supervisors within the
meaning of Section 2(11) of the Act, and have been and
are now agents of the Respondent acting on its behalf
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
fmd that Retail Store Employees Local 322, affiliated
with United Food & Commercial Workers International
Union, AFL-CIO & CLC is, and has been at all times
material, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent about Sep-
tember 27, 1979, violated Section 8(a)(1) of the Act by
directing the Union's pickets, who were picketing on the
private property immediately in front of the customers'
entrance to its store, to leave the premises and by also
causing the police to order the pickets to leave. Al-
though the Respondent admits directing the pickets to
leave the premises and summoning the police to accom-
plish this purpose, it contends that its conduct was not
violative of the Act.
A. Background
The Respondent commenced its operations at store 1
about September 8, 1977. Thereafter about September 20,
1977, the Union began picketing this store and the Re-
cording to Kollmeyer, the Respondent has at times subleased to others a
portion of the parking lot area at the western edge of the lot nearest
Glenstone and adjacent to the grassy right-of-way area such as Christmas
tree and nursery enterprises. There is no evidence in the record to show
that the Respondent allowed any solicitation, charitable or otherwise, or
business enterprises to operate on the sidewalk or parking lot areas in
front of its store.
The Respondent has a large neon sign at the Glenstone entranceway
just north of the Phillips 66 station. The sign is perched atop two steel
poles 30 to 40 feet high with electrical switches at its base to turn it on
and off. The Respondent has another portable sign that is smaller and
that is used to advertise "specials" at its restaurant. This sign is usually
located at the western edge of the parking lot between the two en-
tranceways to the shopping center off Glenstone. There is also a "Smit-
ty's" sign located near the East St. Louis Street entrance to the shopping
center at its northeast corner See G.C. Exh. 2 and R. Exh. 4.
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent, that same day, obtained a temporary restrain-
ing order in a state court action enjoining the picketing.
On March 30, 1978, the temporary restraining order was
modified, vacating a part of the original restraining
order, and enjoining the Union from picketing inside the
store building and from obstructing pedestrian and motor
vehicle entrances and from hindering or impeding "the
free flow of pedestrians and vehicular traffic" while
picketing outside the premises.2
Picketing however was not resumed by the Union
until February 23 and continued until April 4, 1979.
From September 7 until November 15 or 20, 1979, the
Union once again picketed the Respondent's store 1
during which period the pickets carried signs stating,
NOTICE TO PUBLIC. PLEASE DO NOT SHOP SMITIT'S.
SMITTY'S EMPLOYEES ARE NOT UNDER CONTRACT
WITH UNITED FOOD AND COMMERCIAL WORKERS
LOCAL 322, AFL-CIO. WE ARE NOT ON STRIKE—WE
ARE NOT ASKING ANYONE TO QUIT THEIR EMPLOY-
MENT OR CEASE DELIVERIES! UNITED FOOD AND
COMMERCIAL WORKERS, DISTRICT LOCAL 322, AFL-
CIO. RETAIL STORE EMPLOYEES UNION.3
During the period from September 7 to December 11,
1979, the Respondent filed charges against the Union in
Cases 17-CP-213, 17-CP-216, 17-CP-217, and 17-CP-
219, alleging the commission of unfair labor practices in
violation of Section 8(b)(7)(C) of the Act. Subsequently
all these charges were withdrawn by the Respondent
with the exception of the charge filed in Case 17-CP-
219. By letter dated December 11, 1979, the Regional
Director for Region 17 dismissed the charge hi Case 17-
CP-219 for the reason that the Union's picketing fell
within the second proviso to Section 8(b)(7)(C) of the
2 The injunction deleted the following prohibitions from the temporary
restraining order:
(1) Seeking by published news articles, releases or advertisements,
to cause members of Defendant labor organization, other union
members, and the public at large to refuse to patronize Plaintiffs
business, or to engage in a boycott against Plaintiff at said location.
(2) Picketing Plaintiff's store premises at said location to induce,
coerce, and force the general public to refuse to patronize Plaintiffs
store at said location, or to boycott Plaintiffs business.
(3) Passing out pamphlets to potential customers of Plaintiff at that
location to induce, coerce, and force such potential customers to not
patronize or do business with Plaintiff or to boycott Plaintiff's busi-
ness at said location.
(6) Trespassing upon Plaintiff's store premises at the location men-
tioned above, or coming onto such premises for purposes of doing
any of the foregoing.
It also provided:
In connection with the vacating and setting aside of paragraph 6,
it is ordered by the Court that no picketing shall occur inside the
store building, and that any picketing outside the store building shall
be done in such a way that pedestrian entrances and motor vehicle
entrances are not obstructed, and that the free flow of pedestrians
and vehicular traffic is in no way hindered or impeded.
All other terms and conditions of the temporary restraining order
of September 20, 1977, shall remain in full force and effect until fur-
ther order of the Court
This temporary injunction still remains in effect.
The General Counsel in its brief asserts,
Although the language of the signs varied at each period of pick-
eting, the gist of the message was the same. The signs were ad-
dressed to the public, stating that Smitty's had no contract with
Local 322 and asking the public not to patronize the store.
This was uncontradicted in the record.
Act because the picket signs truthfully advised the public
that the Respondent did not have a contract with the
Union and asked customers of the store to withhold their
patronage. The Respondent appealed this determination
to the General Counsel who upheld the Regional Direc-
tor's ruling therein.
The Respondent filed representation petitions in Cases
17-RM-642 and 17-RM-645 in October 1979. On No-
vember 8, 1979, the Regional Director for Region 17 re-
quested instructions from the Board in Washington,
D.C., about whether the processing of these election pe-
titions should be suspended pending resolution of the
charge filed in the instant matter, Case 17-CA-9187. The
Board subsequently directed Region 17 not to proceed
with the processing of the election petitions until the
unfair labor practice issues were resolved and the Re-
spondent was informed of this by letter dated November
21, 1979. The Respondent's subsequent appeal of this de-
termination was denied by the Board in a telegram to the
Respondent dated December 10, 1979, resulting in the
Regional Director for Region 17 postponing the process-
ing of the election petitions pending resolution of the
unfair labor practices in Case 17-CA-9187. Further, on
January 21, 1980, the Respondent filed an action against
the Board in the United States District Court for the
Western District of Missouri, seeking to compel the
Board to hold the election earlier petitioned for. That
action before the District Court, Case 80-3019-CV-S, is
still pending.
Further, the evidence herein establishes that with the
exception of September 27, 1979, all the Union's picket-
ing occurred along the state right-of-way grassy areas
between the parking lot and Glenstone, and at times ad-
ditionally at the East St. Louis and East Cairo street en-
trances to the shopping center, if there were enough
picketers.4
B. The Evidence
Joleen Berry, 5 a picketer employed by the Union testi-
fied that Jack Grey, the Union's president and business
agent, is her uncle and, because she was unemployed at
the time, he had hired her to picket the Respondent's
premises from February through April 1979 and again
during July through September 1979, appointing her the
"picket captain" at the site. She stated that during the
first few months she picketed "six days a week, five
hours a day" but in September 1979 the number of hours
of picketing was increased to "eight hours a day." Berry
continued that there were never more than six pickets at
the property at any one time and that the pickets were
located "Between the entrances on Glenstone, between
the entrances on East St. Louis, and at the entrances on
East Cairo." She related however that during the month
4 In its brief the Respondent admits that despite the vacating of the
"original restraining order against trespassory picketing" the Union's
pickets were instructed by Jack Gray, president of the Union,
to not trespass, but instead to picket only on the public streets or the
grassy areas between the streets and parking lots, which grassy areas
are part of the state highway right of way.
5 Berry was never employed by the Respondent nor is she a member
of the Union.
SMITTY'S SUPER MARKET

1193
of September 1979 the pickets were only located "be-
tween the entrances on Glenstone." Berry added that
Grey had instructed all the Union's picketers to only
engage in picketing activities on the grassy public right-
of-way areas "on the entrances of Smitty's."
What Occurred on September 27, 1979
Berry testified that at approximately 8:30 a.m. on Sep-
tember 27, 1979, prior to her leaving her home for the
picketing site, 8 she received a telephone call from Grey
who informed her that "there would be a Labor Rela-
tions Board lady coming out by the name of Julie
Hughes and she wanted to talk to me, and I did—I was
to meet her." 7 According to Berry, about 6 p.m. on the
previous day, September 26, 1979, she had telephoned
Grey to tell him that some of the pickets had spoken to
"Pam Compton's da.d," 8 Pamela Compton9 being an-
other of the picketers employed by the Union, and:
[Hie had told us that it was passed by the federal
law or government that it is lawful to go up on a
parking lot when there's more than one store and
picket right in front of the store. I had told Jack
about this on the phone, and he told us we could if
we felt like we wanted, and we did it the following
day.
Berry added that she told Grey that she wanted to
picket on the parking lot because the picket signs they
were carrying were "small" and "other drivers driving
by Glenstone did not know who was being picketed,
really, what store right there on the parking lot was
being picketed," and they "were asking people not to
shop at Smitty's.
Berry testified that on September 27, 1979, she, Pamela
Compton, and Kirk Hoffman" were engaged in picket-
ing the Respondent's store 1 at 218 South Glenstone
Avenue, Springfield, Missouri, having commenced pick-
eting activities at 10 a.m. on that day. She continued that
sometime soon thereafter:
I and Kirk, Hoffman walked up on Smitty's parking
lot carrying our picket signs. We didn't get within
50 feet of the store, and three men walked down.
One, I believed, was Mr. Trottier, one Mr. Koll-
meyer, and the other one was short and had black
hair, and they told us that we had to get off their
parking lot, and I told them we didn't have to, and
they said that we do, and I said, "you could contact
Jack Grey, but we don't need to get off your park-
ing lot." He said, "I don't want to call Jack Grey.
6 Berry testified that picketing "at Smitty's" usually commenced at 10
a.m.
Julie Hughes is counsel for the General Counsel in this case.
8 The evidence herein indicates that Pamela Compton's father is an
"International Representative of the Electrical Workers Union."
9 Compton was also never an employee of the Respondent nor a
member of the Union.
10 However, Berry also testified that she did not believe that there was
any "important reason that the union had to go on the parking lot."
11 Hoffman was also hired by the Umon to picket at the shopping
center. He was never an employee of the Respondent nor a member of
the Union.
Just get off our damn parking lot," and turned and
walked away.
Berry added that she and Hoffman then "walked away
and went down to our pickets, where we were picketing
at."" Berry related that while this had been occurring,
Pamela Compton had continued to picket on the grassy
state right-of-way area in front of the parking lot and
paralleling Glenstone.
Berry testified that after returning to the grassy right-
of-way area she adviesd Compton of what had transpired
with Trottier and Compton said she was going to call
Jack Grey at the Union to advise him of what had oc-
curred since Compton and Hoffman "wanted to go back
up there." Berry continued that about this time, while
she was conversing with Compton, Julie Hughes, a
Board attorney, appeared at the scene, "called" Berry
over to where she was standing, and asked Beny to "go
with her." Berry related that she knew that Hughes was
the Board's representative because Grey had told her
that morning that a "Board lady" was coming to the
picketing site that very day to interview her, and Hughes
was wearing a "green dress" and standing near a green
"federal government car," when Hughes called to her."
Berry stated that she and Hughes then drove to a restau-
rant 3 miles away where Hughes wrote out a statement
of what occurred over the course of the picketing as
Berry related it and then Berry signed the completed
statement." She added that just before she left the pick-
eting site with Hughes she told Compton and Hoffman
that "if they wanted to go back up there they could" be-
cause Compton had already indicated that she was going
to contact Grey at the Union before they did anything.
Berry continued that it had been her idea to change
the location of the pickets and to move the picketing site
from the grassy right-of-way area to the parking lot and
sidewalk in front of the Respondent's store and that the
reason for this was to better inform the "customers of
Smitty's" that the picketing was directed against the Re-
19 It appears from the evidence that Trottier was the one who told
Berry and Hoffman to leave the parking lot. Additionally, Berry testified
that the Respondent had previously asked the picketers not to park their
motor vehicles on its parking lot.
18 Berry denied any scheme or plan between the Union and the Board
to have a Board agent present precisely at the time that the pickets
planned to move onto the parking lot and picket on the Respondent's
property close to the store's entranceway in order "to show Julie Hughes
that the company was [commiting] an unfair labor practice." The Re-
spondent in its brief requests that, from the circumstances set forth above
including Berry's testimony explaining how she recognized immediately
that Hughes was a Board agent, the inference should be drawn that this
occurrence was unconscionably prearranged and constituted, in effect,
the "solicitation of a charge" by the Board and "active participation with
the Union to 'trump up' a case." I do not believe that the facts herein
warrant such an inference. This is what amounts to a charge by the Re-
spondent of unlawful collusion between the Board and the Union, an ex-
tremely serious charge, and although Hughes' appearance at the shopping
center about the time of the occurrence of at least the Respondent's ini-
tial conduct complained of herein is strikingly coincidental, except for
this, there is no other evidence in the record to support the inference.
Berry's explanation of how she recognized Hughes as the Board's repre-
sentative seems logical and reasonable to me. To support such a serious
allegation against the Board and its agents or representatives requires sub-
stantially more proof of a positive nature than contained in the evidence
presented by the Respondent herein.
14 Berry's statement contains no prat.
"10
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent However she admitted that there had been a
great deal of publicity about the picketing before Sep-
tember 27, 1979, and that "probably most" of the "gener-
al community" knew that the Respondent was the one
being picketed. It should also be noted that in the word-
ing on the picket signs the Respondent's name "SMIT-
TY'S" is the most prominently displayed word on the
sign."
Pamela Compton, another of the Union's paid picket-
ers" testified that during the month of September 1979
the pickets were located "On the grassy state right-of-
way of Glenstone and on the far east entrance [sic] of
Smitty's on East St. Louis and on the entrence [sic] on
the East Cairo side, the far east." She stated that on Sep-
tember 27, 1979:
About 10:30 a.m. that morning, Kirk Hoffman and I
walked up through the parking lot of Smitty's to
the front walk of Smitty's carrying our picket signs.
It was approximately 200 yards from the grassy
area which we picketed, up to the sidewalk. We
picketed approximately 50 yards in each direction
of the sidewalk that went around the canopy to the
front doors of Smitty's. We walked just a few min-
utes when Mr. Trottier and another gentleman
came out and approached us and told us we would
have to leave, we were trespassing, that we would
have to go back down to the front where we were
supposed to picket.
Compton related that after she refused to do so Trottier
told them he would call the police. According to Comp-
ton, while this was happening "the other gentlemen"
posted a legal sized "piece of paper up in the left-hand
window of the store that said something about trespass-ing?,
Compton continued that Trottier again asked them to
leave and when they refused he said, "We'll call the
police" and he returned inside the store. 17 According to
Compton she and Hoffman continued to picket on the
sidewalk during which time Hoffman went over and
read the notice that had been posted. She testified that
"about 10 or 15 minutes later, the policemen arrived,"
and one of the police officers advised them that Trottier
"had the right to press charges against us because we
16 Berry also admitted that the pickets recorded the license numbers of
cars driving onto the Respondent's parking lot in a book which she kept
and the purpose for which is evident from her testimony.
A. I guess because we felt like it. There was really no reason.
Q. That was to harass the customers, was it not?
A. I wouldn't say necessarily.
Q. To make people fearful of coming in to shop at Smitty's?
A. I'm sure we didn't scare them away, no, we could have did it
maybe to harass them but not to stop them from coming in, no.
Berry testified that the pickets took down "three, four" license numbers a
day during the first period of picketing from February through April
1979 but, during the second period of picketing, from July to September
1979, only during the first few months thereof, "It wasn't in the later
months."
16 Compton picketed 6 days a week, 8 hours a day during September
1979.
11 Compton testified that when she told Trottier that she would not
leave the sidewalk area in front of the store she said, "[W]e'll continue to
walk here until Jack Grey tells us otherwise" and it was then that Trot-
tier said he would call the police.
were trespassing." Compton related that she told the po-
liceman that they had a right to picket there to which
the policeman responded that "the city had an ordinance
against picketing in that area. . . and that he could take
us to jail for that." Compton stated that she then request-
ed that the policeman "find the ordinance on the tres-
passing" and call Jack Grey at the Union, but the officer
could neither fmd the trespass ordinance in his police car
or elsewhere nor did he call Grey at the union offices.
She added that she also requested "Mark," another of
the picketers, to call Grey. Compton recounted that
when the policeman again asked them to leave, she
agreed but said that they would do so only "temporarily,
until we found out that we had the right to picket that
area, and we walked back down to the front."
Compton testified that when she was hired by the
Union as a picketer, Grey had instructed her to "walk on
the grassy area, the state right-of-way, when you picket-
ed." 18 She stated that she, Berry, and Hoffman had just
up and decided to picket on the sidewalk in front of the
Respondent's store that very day and she could not
recall what it was that made them decide to take this
action. Compton admitted that she had never discussed
this matter with Grey and as far as she knew Grey had
never changed his original instructions to the picketers as
to where they should locate themselves while picketing.
Compton additionally related an incident that occurred
while she and Hoffman were picketing on the sidewalk
in front of the Respondent's store wherein a customer
passing by told them, "All you college kids are alike.
You can't make them go union if they don't want to."
Compton responded, "We're picketing and fighting
against discrimination."
Kirk Hoffman, also employed as a union picketer,"
testified that on September 27, 1979, he and Joleen Berry
proceeded onto the parking lot and were going to picket
at the front of the Respondent's store near the entrance
when "about half way up there" Trottier and some other
men came out of the store and met them, with Trottier
ordering Berry and Hoffman "off his lot" because they
were trespassing. 2° Hoffman stated that Berry told Trot-
tier to call Jack Grey if there were any problem but
Trottier replied, "No, you call him and get off the damn
lot." He added that both he and Berry then "walked
back down, and somebody called Jack Grey—I guess
Joleen did."21
16 Compton testified that while they were picketing on the sidewalk,
"50 [yards], back and forth in front of the store on that walkway," they
stayed on the sidewalk all the time and admitted that this was in "direct
violation of Jack Grey's instructions."
19 Hoffman was employed as a picketer by the Union for the months
of February, March, and April 1979, during which he picketed 6 days a
week, "three or four" hours per day. He was again employed as a union
picket in September 1979, whereupon he picketed 8 hours per day, 6 days
a week. Hoffman testified that with the exception of September 27, 1979,
the pickets were located on the grassy right-of-way area bordering Glen-
stone, between the two entranceways to the shopping center on that
avenue, and sometimes at the East St. Louis and East Cairo Street en-
tranceways.
20 Hoffman, in an affidavit given to a Board agent, stated that Trottier
and two other men had come out of the store and met Berry and himself
"within 50 feet of the store."
21 Hoffman testified that when he and Berry returned to the grassy
area at Glenstone they told Compton about what had happened.
SMITTY'S SUPER MARKET

1195
Hoffman continued that sometime thereafter he and
Pamela Compton commenced picketing "about 12 feet
out in front of the door, walking back and forth" and
"three or four minutes" later Trottier came out and told
them that "we were trespassing and we better get off the
lot, you know, get out of there or he would call the
police." He related that about this time "some guy" was
placing a sign in the store window which he later
read.22 Hoffman testified that they refused to leave the
property and he and Compton continued picketing,
walking back and forth in front of the Respondent's store
for about "15 minutes or so" when a policeman arrived
on the scene and told them to leave "or we could be
thrown in jail." Hoffman added that Compton suggested
that if there were any problems, the police officer should
contact Grey and after the policeman refused to do this
and Trottier again demanded that they leave, he and
Compton "went back down and started walking along
Glenstone again." Hoffman stated that he had never re-
ceived any instructions from the Union concerning how
or where to picket at the Respondent's premises
Concerning the above incidents that occurred on Sep-
tember 27, 1979, the Respondent's witnesses did not dis-
pute, to any substantial degree, the testimony of the
above witnesses for the General Counsel. Jeff Koll-
meyer, the Respondent's "director of produce and adver-
tising operations" testified that on the morning of Sep-
tember 27, 1979, he saw "three individuals" picketing on
the "extreme west portion of the parking lot on the ease-
ment, as they usually did, picketing back and forth, from
drive to drive." He stated that at approximately 10 a.m.
two of them, "a male and female, came up towards the
front of the store." Kollmeyer recounted that he in-
formed David Trottier, the general manager of the store,
about what was happening and Trottier, another employ-
ee Randy Freeman, and himself left the store and met
the pickets approximately 50 feet from the front of the
building, turning them back, after which the pickets
"proceeded back to the street."
Kollmeyer continued that thereafter "two different in-
dividuals" started to picket in front of the building on
the sidewalk." He related that Trottier and Freeman left
the store and Trottier told the pickets that they "were
not to picket there" and when they refused to leave the
police were called. Kollmeyer added that when the
above incidents happened they occurred in the area in
front of the store exclusively used by customers of the
Respondent. He also indicated that the Respondent ex-
cludes everyone, other than its own customers, from
using its parking lot facilities, including the union picket-
ers' cars.
Kollmeyer testified that since the picketing by the
Union commenced, he personally has recovered from on
22 The sign prohibited trespassing, handbilling, and the blocking of en-
trances to the store by nonemployees, and sets forth the text of the State
of Missouri's criminal trespass statute warning of prosecution for viola-
tions thereof. See G.C. Exh. 4.
23 Kollmeyer testified that during the picketing he observed Kirk
Hoffman walking to and fro on the sidewalk in front of the store passing
under the canopy at the store's entranceway as he did so. He stated,
however, that this only happened twice and that Hoffman most times
walked around the canopy on the outside after he had read the trespass
notice.
the parking lot "a total of 19 pounds of roofing nails on
three separate occasions, always early in the morning
after a previous night of picketing. We've never received
this problem before." He continued:
I found copies exactly like this notice to the public
worn by the picketers and carried by picketers. I
found these boards with nails protruding from them
laying in the driveways in the morning following
the night of picketing where they've been discarded
by the picketers the previous night.
We found trash and cans that have been thrown
from the easement on to the lot. Again, we never
had that problem before the picketers were there
and since subsequent picketing has begun and
stopped during the interim that they did not picket
the store, we did not have these problems. We've
had trouble with flat tires on cars of employees, and
again we don't have it usually, but it seems to occur
coincidentally with the picketing in the store.
Kollmeyer also stated that on occasion the large neon
sign at the Glenstone entrance to the parking lot had
been "turned off by individuals in the evening" and coin-
cidentally only occurring at the same time as the picket-
ing. He added that the Respondent also experienced
problems with "the message board that is located against
this easement for purpose of advertising the restaurant
and its specials," in that the letters on the board had
been rearranged in an obscene manner and the "sign
itself has been abused and unplugged, and this has always
occurred when the picketers were there."24
Joie= Berry, Pamela Compton, and Kirk Hoffman, re-
buttal witnesses for the General Counsel, denied ever
having placed any nails or tacks on the Respondent's
parking lot or driveways or that they had ever noticed
any nails or tacks in these areas while they were picket-
ing at the shopping center. They all testified that any
"empty pop bottles or other debris," accumulated by
them during the daily picketing, was kept near the pick-
eting site and collected just before the picketing ended at
6 p.m. each day and placed in a trash can at the Phillips
66 service station. They continued that they never no-
ticed that the large neon sign located at the Glenstone
entrance to the parking lot was unplugged and they
denied ever having disconnected or unplugged it them-
selves. They also denied ever having scrambled the let-
ters on the Respondent's mobile restaurant sign so that
the letters spelled out obscene words. 25 Berry, Compton,
24 Kollawyer testified that m the latter part of I979, while standing in
the restaurant, he observed a picketer rearranging the lettering on this
sign, at which time the restaurant manager came out and "replaced them
where they were supposed to be, and again warned them. But it didn't do
any good." He assumed that it was a Local Union 322 picketer whom he
had spotted because the only other union that had ever picketed at the
store, and this had happened some time ago, was the Amalgamated Meat
Cutters Union.
25 However, Berry did testify that on occasion she had noticed that
the letters on the sign had been scrambled but "I didn't notice anything
obscene." Both Compton and Hoffman stated that they had never ob-
served the letters on this sign to be scrambled "to spell out something
obscene,"
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Hoffman additionally testified that at the end of the
day Berry collected the picket signs and usually took
them home with her, and in connection with any tire
damage to the Respondent's employees' cars parked on
the parking lot they expressed their innocence of these
deeds recounting that they would be unable to recognize
and identify who the Respondent's employees were or
the kinds of cars these employees drove.26
The Respondent also called Richard Taylor as a wit-
ness, Taylor being the owner of Roswil, Inc., d/b/a
United Supermarkets, a supermarket chain operating
"roughly" 20 stores in the Springfield, Missouri, and
"outlying areas." Taylor testified that David Trottier, the
Respondent's vice president, had asked him aobut his
company's experience with the Union during the Union's
picketing of United Supermarkets' stores in 1975. Taylor
stated that he advised Trottier if possible not to allow
pickets at the Respondent's stores because the Union had
placed nails on the parking lot, broken store windows,
and blocked the entrances to his stores with trash and
lawn chairs and the pickets had played "Frisbee" on the
parking lot, "This type of stuff."27
Bobby Brower, the Respondent's comptroller, testified
that he was present at the "court proceeding. . . before
Judge Crowe of the Green County Circuit Court on Jan-
uary 25, 1980," at which time he heard the Union's presi-
dent Jack Grey testify that "the pickets were there to
inform other union members not to shop at the Smitty's
store . . . a good union member. . . would recognize
the sign and not shop at the store." Brower also testified
that Grey had said that the Union did not intend to orga-
nize the Respondent's employees. 2 8
C. The Respondent's 10(b) and Due Process Defenses
As set forth hereinbefore the Respondent moved to
dismiss the complaint on the grounds that it goes beyond
the scope of the charge filed herein in violation of Sec-
tion 10(b) of the Act in that the charge was tiled on Sep-
tember 13, 1979, and the allegations of the complaint
26 Berry did testify however that she knew who the Respondent's
store managers were, but she did not know and could not recognize the
cars they drove.
27 Counsel for the Respondent made an offer of proof concernmg
what David Trottier would have testified to had he been able to appear
as a witness He offered that Trottier would in effect have stated that
based on numerous sources of information, including Taylor, wherein he
learned of the circumstances of the Union's "coercive and destructive
type of picketing" at the stores of other companies' supermarkets, the Re-
spondent believed that it could not successfully operate its supermarket
business if it allowed the Union to picket on the sidewalk in front of its
stores and that its actions taken in connection with the Union were in
furtherance of this objective, i.e., state court injunctive action, enforce-
ment of no trespassing laws, etc.
28 Grey testified, at the state court proceeding, that the purpose of the
picketing at the Respondent's store was merely informational, just to
inform the public that the store did not have a union contract, and did
not employ union members and have union wages and working condi-
tions Grey, however, also testified therein that the picketing was for the
purpose of informing "the entire labor community. If they're good labor.
minded people" not to cross the picket line. Concerning Grey's state-
ments as to the purpose of the Union's picketing activities also see R.
Exits. 2a, 2b, and 2c, newspaper articles in evidence, in which Grey
stated that he was going to picket the Respondent's store 1 and the rea-
sons therefore (Springfield Missouri Daily News, September 6, 1977;
Union Labor Record, September 9, 1977; Springfield, Missouri Daily
News, September 8, 1977, respectively.)
refer solely to incidents that occurred on September 27,
1978, as the basis for the unfair labor practices alleged
therein, and that no amended charge was ever filed by
the Union. The Respondent also asserts furthermore that
this is in violation of its "due process rights."
Analysis and Conclusions
The charge, filed on September 13, 1979, alleges:
Since about September 20, 1977, and continuing to
date, the above employer has interfered with the
rights of members of and employees represented by
the Charging Party to engage in area standards
picketing by continuously attempting to force the
removal of pickets from the parking area and en-
trances to the employer's store, by threatening and
filing damage suits for trespass, seeking injunctions
against trespass, filing municipal court charges
charging trespass and ordering the picket carriers to
leave the premises adjoining the employer's store.
The complaint alleges that the Union "From on or
about September 10, 1979, to on or about September 27,
1979," picketed in areas adjacent to the Respondent's
"facility" with the object of truthfully advising the
public, including consumers, that the Respondent did not
employ members of, or have a collective-bargaining
agreement with, the Union, and that on September 27,
1979, the Union commenced picketing on the "private
property immediately in front of customer entrances to
the facility." The complaint continues:
On or about September 27, 1979, the Respondent,
acting by and through David Trottier, and at the fa-
cility, did:
(a) Direct the pickets engaged in the picketing
described above in paragraph 6 to leave the prem-
ises.
(b)Cause the police to order the pickets engaged
in picketing described above in paragraph 6 to leave
the premises.
In National Licorice Co. v. NLRB, 309 U.S. 350 at 369
(1940), the Supreme Court stated:
It is unnecessary for us to consider now how far
the statutory requirement of a charge as a condition
precedent to a complaint excludes from the subse-
quent proceedings matters existing when the charge
was filed, but not included in it. Whatever restric-
tions the requirements of a charge may be thought
to place upon subsequent proceedings by the Board,
we can fmd no warrant in the language or purposes
of the Act for saying that it precludes the Board
from dealing adequately with unfair labor practices
which are related to those alleged in the charge and
which grow out of them while the proceeding is
pending before the Board. The violations alleged in
the complaint and found by the Board were but a
prolongation of the attempt to form the company
union and to secure the contracts alleged in the
charge. All are of the same class of violations as
SMITTY'S SUPER MARKET

1197
those set up in the charge and were continuations of
them in pursuance of the same objects. The Board's
jurisdiction having been invoked to deal with the
first steps, it had authority to deal with those which
followed as a consequence of those already taken.
We think the court below correctly held that "the
Board was within its power in treating the whole
sequence as one."
Citing the above, the Supreme Court in NLRB v. Pant
Milling Co., 360 U.S. 301, 307-308 (1959), held:
A charge filed with the Labor Board is not to be
measured by the standards applicable to a pleading
in a private lawsuit. Its purpose is merely to set in
motion the machinery of an inquiry. 1V.L.R.B. v.
L & M Electric Co., 318 U.S. 9, 18. The responsi-
bility of making that inquiry, and of framing the
issues in the case is one that Congress has imposed
upon the Board, not the charging party. To confme
the Board in its inquiry and in framing the com-
plaint to the specific matters alleged in the charge
would reduce the statutory machinery to a vehicle
for the vindication of private rights. This would be
alien to the basic purpose of the Act. The Board
was created not to adjudicate private controversies
but to advance the public interest in eliminating ob-
structions to interstate commerce, as this Court has
recognized from the beginning. N.L.R.B. v. Jones &
Laughlin, 301 U.S. 1.
Once its jurisdiction is invoked the Board must
be left free to make full inquiry under its broad in-
vestigatory power in order properly to discharge
the duty of protecting public rights which Congress
has imposed upon it. There can be no justification
for confining such an inquiry to the precise particu-
larizations of a charge.. .
What has been said is not to imply that the Board
is, in the words of the Court of Appeals, to be left
"carte blanche to expand the charge as they might
please, or to ignore it altogether." [NLRB v. Font
Milling Co.], 258 F.2d at 856 [5th Cir. 1958]. Here
we hold only that the Board is not precluded from
"dealing adequately with unfair labor practices
which are related to those alleged in the charge and
which grow out of them while the proceeding is
pending before the Board." National Licorice Co. v.
N.L.R.B., 309 U.S. 350, at 369.
In the instant case the unfair labor practices alleged in
the complaint are clearly related to those alleged in the
charge. Additionally because the complaint sets forth the
actual unfair labor practices alleged to have been com-
mitted by the Respondent, it certainly had adequate
notice as to what issues would be considered in the case
at the hearing and while objecting to the presentation of
evidence thereon the Respondent did have the opportu-
nity to fully litigate the issues and in fact did so at the
hearing,
From all the above I fmd and conclude that the Re-
spondent's 10(b) and "violation of due process" defenses
alleged herein are without merit and therefore I deny its
motion to dismiss on these grounds."
D. Acts of Interference, Restraint, and Coercion
Section 8(a)(1) of the Act makes it an unfair labor
practice for an employer to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.3°
The complaint alleges that about September 27, 1979,
the Respondent violated Section 8(a)(1) of the Act by di-
recting "the pickets engaged in picketing . . . to leave
the premises," and by causing "the police to order the
pickets to leave" thereby interfering with, restraining,
and coercing "employees in the exercise of the rights
guaranteed in Section 7 of the Act." The General Coun-
sel asserts that "The Union's picketing of the Respondent
was protected by the second proviso to Section
8(b)(7)(C) and by Section 7 of the Act." The Respondent
maintains that the picketing was not only "not protected
by the second proviso to Section 8(bX7)(C)," but "was in
actuality 'signal' picketing designed to cause union mem-
bers not to cross the picket line," a purpose that is not
protected under Section 7 of the Act.
Analysis and Conclusions
Section 8(bX7)(C) of the Act provides:
It shall be an unfair labor practice for a labor orga-
nization or its agents-
. . .
(7) to picket or cause to be picketed, or threaten
to picket or cause to be picketed, any employer
where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor orga-
nization as the representative of his employees, or
forcing or requiring the employees of an employer
to accept or select such labor organization as their
collective-bargaining representative, unless such
labor organization is currently certified as the repre-
sentative of such employees:
(C) where such picketing has been conducted
without a petition under section 9(c) being filed
within a reasonable period of time not to exceed
thirty days from the commencement of such picket-
ing. . . . Provided further, That nothing in this sub-
paragraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of
truthfully advising the public (including consumers)
that an employer does not employ members of, or
29 NLRB v. Fant Milling Co., supra; Fern Laboratories, 240 NLRB 487
(1979); Times Herald Printing Co., 252 NLRB 278 (1980); Olympic Medal
Corp., 236 NLRB 1117, 1122 (1978); Painters Local 1627 (Johnson's Plas-
tering), 233 NLRB 820, 827 (1977); Kern's Bakeries, 227 NLRB 1329
(1977); Jack LaLanne Management Corp., 218 NLRB 900 (1975), enfd.
539 F.2d 292 (2d Cir. 1976).
90 Sec. 7 of the Act provides:
Employees shall have the right to self-organization, to form, Join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection. . . .
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have a contract with, a labor organization, unless an
effect of such picketing is to induce any individual
employed by any other person in the course of his
employment, not to pick up, deliver or transport
any goods or not to perform any services.
The evidence convinces me that the Union's picketing
of the Respondent falls within the purview of the second
proviso to Section 8(b)(7)(C) and therefore was not pro-
scribed by the Act. The picket signs carried by the pick-
ets contained language similar in nature to that contained
in the proviso, namely, that the Respondent's "employees
are not under contract" with the Union. Furthermore,
statements made by the Union's president Grey consist-
ently alleged that the purpose of the picketing was "in-
formational," to inform the public that the Respondent
"did not have a Union contract, did not employ union
members and have union wages and working condi-
tions."31
Additionally as required by the second proviso of Sec-
tion 8(b)(7XC), the effect of the picketing did not
"induce any individual employed by any other person in
the course of his employment, not to pick up, deliver or
transport any goods or not to perform any services."
The picket sign language specifically told the public that
there was no strike in progress and expressly indicated
that the Union was "not asking anyone to quit their em-
ployment or cease deliveries." Significantly no evidence
was offered at the hearing by the Respondent showing
that anyone failed to pick up, deliver, or transport any
goods or that anyone failed to perform any services."
The Respondent in its brief alleges:
From this undisputed testimony it must be found
that the purpose of the [Union's] picketing is not
protected by the second proviso to Section
8(b)(7XC), but instead it was "signal" picketing de-
signed to cause union members to not cross the
picket line, a purpose which does not fall within the
second proviso's protection. Such picketing cannot
be found protected under Section 7 of the Act, and
therefore can claim no immunity from local laws
regulating and prohibiting trespassing.
31 See G.C. Exh. 5 (testimony of Jack Grey in a prior state court pro-
ceeding). Also see R. Exhs. 2a, 2b, and 2c. In these latter exhibits consist-
ing of local newspaper articles, Grey is quoted as stating that the Union
"knew it would be futile to try to organize the store." Additionally, as
will be clear from what is said hereinafter, even if the Union's picketing
had an avowed and apparent recognitional or organizational objective the
second proviso to Sec. 8(bX7)(C) would except such picketing from
being proscribed by the Act if it met the conditions set forth therein; (1)
that the purpose of the picketing was to truthfully advise the public that
an employer does not employ members of nor have a contract with a
labor organization, and (2) that the picketing does not have the effect of
inducing individuals employed by other persons in the course of their em-
ployment to not deliver or transport goods or perform any services.
Crown Cafeteria, 135 NLRB 1183 (1962), affd 327 F.2d 251 (1964). Also
see Laborers Local 1140 (Lanco Corp.), 227 NLRB 1247 (1977); Culinary
Workers 62 (Tropicana Lodge), 172 NLRB 419 (1968); Electrical Workers
IBEW Local 429), 138 NLRB 460 (1962). In the Crown Cafeteria case a
Board majority reviewed informational picketing as presupposing a re-
cognitional or organizational objective.
32 Payless Drug Store of Aberdeen, 188 NLRB 656 (1971). Also see
John's Valley Foods, 237 NLRB 425 (1978).
The Respondent then cites Electrical Workers IBEW
Local 3 (Jack Picoult), 144 NLRB 5, 9 (1963), in support
thereof. I do not fmd that either the "undisputed testimo-
ny" or the Picoult case referred to establishes the Re-
spondent's allegation.
The "undisputed testimony" referred to by the Re-
spondent is that of Union President Jack Grey and reads
as follows:
Q. (By Mr. Jones). But couldn't you inform the
public without walking across in front of the cars
there just as well?
A. (By Mr. Gray). Well, sorry to say, I didn't
start out traditional picketing. Traditional picketing,
it's back and forth across the entrances.
Q. Yes, that's right. It is whenever you're trying
to—because a good union man won't cross a picket
line? Isn't that right?
A. I guess so, yes.
Q. All right. And so you're walking across there
so people won't cross that picket line, is that right?
A. That's correct.
Q. Any good union person wouldn't cross that
picket line because they're walking across that en-
tranceway?
A. That's correct.
Q. So it isn't a matter of informing the public, is
it? It's a matter of putting coercion against people
not to cross the picket line?
A. No, Mr. Jones, it's a matter of informing not
only the—the entire labor community. If, they're
good labor-minded people, they won't cross the
picket line. If they're not, they're going to go right
on through.
Q. Your picket is a signal to anyone that's a
union member not to cross that picket line? It's a
little, unwritten law among union members, isn't it,
not to cross a picket line?
A. Yes, absolutely. Absolutely.33
In considering the testimony it should be noted, first that
Grey consistently testified in the state court proceeding
that the picketing was for the purpose of informing the
public and the Union's picket signs clearly indicated its
informational nature and gave notice that there was no
strike in progress. Second, a careful and close analysis of
the above testimony shows that it was Jones, the Re-
spondent's attorney, who initially introduced, in his ques-
tioning of Grey, the premise that "a good union man
won't cross a picket line" and after securing Grey's affir-
mation that this was a correct statement attempted to
obtain Grey's admission that the Union engaged in
"signal picketing" although he was unsuccessful in doing
so. Jones then asked two questions at once as can be
readily seen from the above. From the tenor of the testi-
mony given by Grey and this entire sequence of ques-
tions and answers it is apparent that Grey's last answer
in the affirmative was directed at the latter question
only, acknowledging his belief that there is a strong feel-
ing among union members not to cross a picket line
33 G.C. Exh. 5, pp. 52-53.
SMITTY'S SUPER MARKET 1199
rather than an admission that the Union had engaged in
"signal picketing."
Moreover, an analysis of the circumstances present in
the Pkoult case, cited in support of the Respondent's
contention as contrasted with those presented in the in-
stant case is particularly revealing. The Board in Picoult,
prior to considering the facts present therein set forth the
basis on which a determination is to be made as to
whether picketing is for an informational purpose privi-
leged by the proviso, or for "signal" purposes, an unpri-
vileged picketing objective. The Board stated at 8:
The court explained that the proviso "gives the
union freedom to appeal to the unorganized public
for spontaneous popular pressure upon an employer;
it is intended, however, to exclude the invocation of
pressure by organized labor groups or members of
unions as such." Accordingly, the court continued,
in determining whether the picketing is "for the
purpose of truthfully advising the public," it is nec-
essary to ascertain the Union's tactical purpose. Was
it seeking a response from the public at large, or
from organized labor groups? If the former, the
court stated, the picketing is privileged by the pro-
viso unless it communicates more than the limited
information permitted thereby or it in fact has an
effect on deliveries; if the latter the picketing is not
privileged irrespective of its actual effects.
The Board noted in Picoult that the picketing frequently
occurred, "where the delivery entrances are located and
where very few members of the public walk," and in-
volved at least one incident in which an employee
making a delivery was stopped by pickets, told a strike
was in progress, and then he was "moved away from the
jobsite by the 'picket captain' before he could make a de-
livery." Considering these facts the Board then found at
8;
In these circumstances, it is apparent that the Union's
picketing was not directed at achieving the limited
purpose of communicating with the public, but was
also intended to be precisely that "signal" to orga-
nized labor which Congress sought to curtail."
[Emphasis added.]
Significantly in the instant case, in contrast to Picoult:
the picketing was conducted mainly on the Glenwood
Avenue right-of-way area between the entranceways off
that thoroughfare, with Glenwood being far and away
the most heavily traveled and most public thoroughfare
of any of the streets bordering the shopping center in-
volved; 34 there is no evidence in the record of any inci-
dent involving pickets and individuals making deliveries
to the shopping center similar to that which occurred in
the Picoult case as set forth above; unlike the picket signs
in Picoult, the Union's signs herein specifically stated that
no strike was in progress nor did the Union's pickets
34 Although there is some testimony that on occasion the union con-
ducted picketing activities at the East St. Louis and East Cairo en-
tranceways to the shopping center, the picketing still did not "frequent-
ly," or otherwise at all occur "where the delivery entrences [sic] are lo-
cated."
herein advise anyone that there was a strike being con-
ducted.
From all the above, I find and conclude that the
Union's picketing of the Respondent is privileged by the
second proviso of Section 8(b)(7)(C) of the Act and not
proscribed activity thereunder.
I also find and conclude that the Union's picketing was
protected under Section 7 of the Act. As Judge Swygert
stated in Getreu v. Bartenders Local 58, 181 F.Supp. 738,
741 (D.C. N. Ind. 1960):
It is difficult, if not impossible, to imagine any kind
of informational picketing pertaining to an employ-
er's failure to employ union members or to have a
collective bargaining agreement where another
object of such picketing would be ultimate union
recognition or bargaining. In most instances certain-
ly the aim of such informational picketing could
only be to bring economic pressure upon the em-
ployer to recognize and bargain with the labor or-
ganization.
The Board in Crown Cafeteria, supra, citing Judge
Swygert's language in the above case in connection with
its consideration of the meaning, intent, and scope of the
second proviso of Section 8(b)(7)(C), concluded at 135
NLRB at 1185:
[T]he express words of the proviso make it clear
that the proviso applies where organization, recog-
nition, or bargaining is an object. Thus, "does not
employ members of" clearly imports a present
object of organization and "[does not] have a con-
tract with" just as clearly implies a recognition and
bargaining object.
This being so it would appear that the Union's use of
the language in its picket signs "Smitty's employees are
not under contract with [the Union]" implies a present or
future recognitional and bargaining objective 35 and
therefore it can be said that the Union's picketing would
also fall within the protection of Section 7 of the Act.
The implication of a recognitional and organizational
object for the Union's picketing carries with it an addi-
tional inference that the Union is not only acting in its
own interests but also in the interests of the employees of
the picketed employer vis a vis, its recognitional or orga-
nizational objective. Those employees have a Section 7
right to organize and the Union, as an incident thereto,
has a right to organize them and to seek recognition as
their collective-bargaining representative. A permissible
means of accomplishing such organization and seeking
such representation is picketing within the ambit of the
second proviso of Section 8(b)(7)(C).
8 5 From the evidence herein, i.e., the Union's avowed nonrecogni-
tional or organizational objective for its picketing as reiterated time and
again by its president, Jack Grey; Grey's statement that attempting to or-
ganize the Respondent's employees would be futile because of the Re-
spondent's principle stockholder; and the Union's use of second proviso
language in its picket signs, the Union's recogmtional or organizational
object would appear to be a future one.
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As stated by the Board in Giant Food Markets, 241
NLRB 727, 728 (1979):
Therefore, in its attempt to protect the area stand-
ards, a union acts not only in its own interest, but
also in the interest of employers with whom it has
negotiated more beneficial employment standards. It
is this legitimate nature of the union's action which
we believe makes properly conducted area stand-
ards picketing not only lawful, but affirmatively
protected under Section 7 of the Act.
That this reasoning is applicable to the circumstances of
"informational" picketing engaged in by the Union in
this case seems clear. If a union can picket in the interest
of employees elsewhere it should be able to picket in the
interest of the employees of the very Employer involved
herein. 36
Having found that the Union's picketing of the Re-
spondent was of a privileged and protected nature a con-
sideration of the right, if any, of the pickets to infringe
on the private property rights of others now follows.
In Hudgen,s v. NLRB, 424 U.S. 507 (1976), the Su-
preme Court, after deciding that the constitutional guar-
antee of free expression (first amendment) "has no part
to play" in determining the rights of pickets to engage in
picketing activities on private property, stated at 521:
From what has been said it follows that the
rights and liabilities of the parties in the case are de-
pendent exclusively upon the National Labor Rela-
tions Act. Under the Act the task of the Board, sub-
ject to review by the courts, is to resolve conflicts
between § 7 rights and private property rights, "and
to seek a proper accommodation between the two.
. . ." Central Hardware Co. v. NLRB, 407 U.S. [539
(1972)].
In the Central Hardware case and earlier in the
case of N.L.R.B. v. Babcock & Wilcox Co., 351 U.S.
105 [(1956)1, the Court considered the nature of the
Board's task in this area under the Act. Accommo-
dation between employees' § rights and employers'
property rights, the Court said in Babcock &
"must be obtained with as little destruction of one
as is consistent with the maintenance of the other."
351 U.S. at 112.37
36 However, it would also seem clear to conclude that there is a differ-
ence between the "informational" genre of picketing, directed primarily
at the public at large and consumers, and straightforward up front recog-
nitional or organizational picketing directed primarily at an employer's
employees and its immediate customers regarding the weight to be given
to these types of picketing when considered in determining issues other
than as to whether the picketing is protected under Sec. 7 of the Act as
will be dm' cussed hereinafter, ie., in the context of the issue presented
herein, private property rights versus Sec. 7 protected picketing rights
and the trespassory nature thereof. See Sears, Roebuck & Co. v San Diego
County Council of Carpenters, 436 U.S. 180 (1978).
37 In Babcock & Wilcox, supra at 112 the Supreme Court at 112 stated,
Organization rights are granted to workers by the same authority,
the National Government, that preserves property rights. Accommo-
dation between the two must be obtained with as little destruction of
one as is consistent with the maintenance of the other. The employer
may not affirmatively interfere with organization, the union may not
always insist that the employer aid organization. But when the mac-
cessibihty of employees makes ineffective the reasonable attempts by
In prescribing the approach to be used by the Board in
attaining the basic objective under the Act established by
Babcock & Wilcox, namely, accommodation of Section 7
rights and private property rights "with as little destruc-
tion of one as is consistent with the maintenance of the
other,"" the Supreme Court in Hudgens held 424 U.S.
at 552:
The locus of that accommodation, however, may
fall at differing points along the spectrum depending
on the nature and strength of the respective § 7
rights and private property rights asserted in any
given context. In each generic situation, the primary
responsibility for making this accommodation must
rest with the Board in the first instance."
In the context of this accommodation, the basic issue in
the instant case resolves itself in the choice between lo-
cating the pickets on the private property near the en-
trance to the Respondent's store, on the sidewalk or
parking area in front of the store, or locating them on a
public right-of-way area adjoining a main thoroughfare
and near the entrance/exits to the shopping center park-
ing lot.
The Board in Giant Food Markets, 241 NLRB 727
(1979), indicated the necessity "to examine and weigh
several different factors" in accommodating the respec-
tive rights of the parties, including: the nature of the
picketing involved and the persons sought to be benefit-
ed therefrom, the intended audience of the pickets and
the locational impact of the picketing, the necessity to
identify the audience and the means available to the pick-
eters to communicate therewith, the likelihood of a
union's picketing enmeshing neutral employers in its dis-
pute with a particular store, the openness of the property
to the public and the balancing of these factors with the
right of property owners or lessees to control the use of
their property. This clearly implies that each case where-
in such accommodation issue arises must be considered
in the light of the particular facts present therein.
In considering these factors the General Counsel
argues that "[i]nsofar as Section 8(b)(7)(C) second provi-
nonemployees to communicate with them through the usual chan-
nels, the right to exclude from property has been required to yield to
the extent needed to permit communication of information on the
right to organize.
The Court m Central Hardware, supra at 544-545, held:
The principle of Babcock is limited to the accommodation between
organizational rights. . . . only in the context of an organizational
campaign. Moreover, the allowed intrusion on property rights is lim-
ited to that necessary to facilitate the exercise of employees' 7 rights.
After the requisite need for access to the employer's property has
been shown, the access is limited to fl) union ,organizers; (ii) pre-
scribed nonworking areas of the employer's premises; and (iii) the
duration of organization activity. In short the principle of accommo-
dation announced in Babcock is limited to labor organization cam-
paigns, and the "yielding" of property rights it may require is both
temporary and minimal.
Both Babcock & Wilcox and Central Hardware involved organizational ac-
tivity carried on by nonemployees on employer's property. Hudgens in-
volved primary picketing in support of an economic strike.
88 351 U.S. at 112. This language was explicitly reaffirmed as stating
"the guiding principle" in Central Hardware Co. v. NLRB, supra.
39 Also see Sears, Roebuck & Co. v. San Diego County Council of Car-
penters, supra.
SMITTY'S SUPER MARKET 1201
so picket signs are evidence of an organizational and re-
cognitional object, the picketers are clearly acting in the
interests of the employees of the picketed employer" and
therefore such picketing should be allowed access to the
picketed emploeyr's private property at least as readily
as the area standards picketers in Giant Food Markets be-
cause "if a union can picket on such property primarily
in the interest of employees elsewhere, it follows, a for-
tiori, that a union can picket in the interest of employees
at the very property involved."40
Although this logic is attractively simple it does not
take into consideration the nuances and differences im-
plicit therein. Although the ultimate object of recogni-
tional or organizational picketing and proviso informa-
tional picketing may be the same, the immediate object
of these varying types of picketing and the means of ac-
complishing such a goal may not be likewise similar es-
pecially when considering the issue of accommodation of
the respective rights of parties as is inovlved herein.41
As the evidence shows the primary intended audience
of the Union's informational picketing herein was the
public at large and the customers and potential customers
of the Respondent, although it is reasonable to infer that
the Union also intended to reach the Respondent's em-
ployees with its message, this being accomplished as a
secondary ripple effect. 42 The General Counsel con-
tends:
As in Giant Food Markets, supra, and Scott Hudgens,
supra, an individual becomes identified as part of
the intended audience, i.e., a customer of Smitty's,
only when he or she decides to go into the store.
The decision to shop at the Respondent's store may
be made on impulse only after entering the parking
lot for another purpose, such as an appointment at
the medical building or shopping at Color Tile or
Midas Muffler, and then noticing an advertisement
in the Respondent's window. Where the primary
audience only becomes identifiable when they
decide to enter the store, there is no reasonable
means of communication with the customer audi-
ence, other than picketing at the customers en-
trances to the store. To require that the picketers
locate at the parking lot entrances 200 yards from
the store with the labor dispute would so greatly
dilute the message of the picketers as to render it
virtually meaningless.
I do not agree. Although it is obvious that the picket-
ing would be more effective if conducted in front of the
Respondent's store entranceway the evidence does not
support the above assertion that picketing anywhere else
at the shopping center site would be totally ineffective
and meaningless. Initially it should be noted that the
physical arrangement of the shopping center in the in-
stant case differs substantially from that involved in
either Giant Food Markets or Hudgen cases. In Hudgens
the shopping center comprised some 60 stores located
42 Crown Cafeteria, supra; Giant Food Markets, supra. Also see Crown
Cafeteria, 130 NLRB 570 (1961).
41 See Sears, Roebuck & Co., supra.
42 See G.C. Eat'. 5 (testimony of Union President Grey).
within one single large building with an enclosed mall. A
parking lot surrounding the building accommodated 2640
automobiles that suggests that the area encompassed by
the building, enclosed mall and the parking area is of a
substantial nature. With the involvement of such a large
area site and the 60 individual stores located therein it is
not unreasonable to suppose and readily recognize the
communication problems that the physical layout of such
a shopping center gives rise to, in connection with pick-
eting activities.
In the- Giant Food Markets case the shopping center
consisted of two stores, a large Kresge chain department
store and the Giant Food Markets, Inc. supermarket,
both of which have significant consumer appeal and
shopper drawing power so that it would be difficult if
not impossible to determine which store the potential
customer is entering on the shopping center parking lot
to patronize. This could give rise to a problem for the
picketers assuming it were shown that locating the pick-
ets some distance from the picketed employer's store en-
tranceway greatly diluted the Union's desired message.
However, in the instant case the Respondent's super-
market and restaurant with its accompanying parking
area in the front thereof occupies a major portion of the
shopping center's area (perhaps as much as 60 percent)
with the remainder occupied by a Midas Muffler, Color
Tile, medical building, and service station confmed to the
north side of the shopping center with only a small
building occupied by a printing company in the north-
eastern part thereof. From the diagrams of the shopping
center in evidence it is not unreasonable to conclude that
the Respondent's supermarket is the dominant store at-
tracting customers to the center. The substantial area of
parking set out in front of the supermarket presumably
within and considered by the Respondent to be part of
the area included in its lease substantiates this." Signifi-
cantly, the Union's pickets who testified at the hearing
failed to establish that their picketing activities conduct-
ed on the grassy right-of-way areas at the entranceways
to the shopping center, especially the area adjacent to
Glenwood Avenue, were because of their location, quite
ineffectual or that these sites created unacceptable com-
munication problems with persons entering on the shop-
ping center property. In fact, there is no evidence in the
record supportive of this.
As additionally contended by the General Counsel,
The effectiveness of the message is also diluted by
the fact that Glenstone is a major six-lane thorough-
fare. Motorists would be more concerned with
safety entering the parking lot than with reading the
picket signs. The motorists also often enter the
parking lot at a rate of speed too great to enable
them to read a picket sign. In fact, the picketers ex-
pressed concern for their safety when picketing at
these parking lot entrances.
43 The nature of the businesses of the other stores in the shopping
center, Le, Midas Muffler, Color Tile, medical building, etc., of a par-
ticularly specialized nature as contrasted with the everyday general
nature and usage of a supermarket, would also weigh in favor of such a
conclusion.
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although Grey testified in the state court proceeding
that cars turning into the shopping center of Glenstone
Avenue move "pretty quick," his testimony was not cor-
roborated by the actual picketers present at the site who
testified herein. Not only was Grey's testimony general
in nature but the pickets who were picketing at the shop-
ping center never testified that there was any hazard to
their picketing activities created by their walking back
and forth across the entranceways nor that there were
any problems with drivers of cars entering onto the
parking lot. Further, Glenstone Avenue is a six-lane main
thoroughfare with the right lane in each direction consti-
tuting a turning lane and providing a comparatively safe
avenue for cars to enter or exit thereon from the parking
lot. Absent unusual circumstances such as abnormally
heavy traffic or cars turning from the opposite side of
the roadway there is no safety hazard for cars turning
into or leaving the parking lot that requires a fast turn as
might be required on a lesser laned highway. Be that as
it may again the significant failure of the picketers to tes-
tify to the need to relocate their picketing activities else-
where because of any danger or hazards present at their
current picketing site suggests the lack thereof as an in-
fluencing factor herein. I am not unaware of Berry's tes-
timony that she had told Grey that they wanted to relo-
cate their picketing activities onto the Respondent's pri-
vate property to better inform the Respondent's custom-
ers that the picketing was directed against "Smitty's,"
because they were using "small" picket signs. Her testi-
mony, however, was equivocal at times and unconvinc-
ing as establishing a clear need to move their picketing
activities because the current site made their picketing in-
effective. Her additional testimony that the Union's pick-
eting of the Respondent received some notoriety in the
local press and that the public was aware that it was the
Respondent who was being picketed contradicts her
other statement. In fact, aside from situating pickets on
the Respondent's private property in front of its storei it
strongly appears that the next most effective area for
picketing would be the grasy right-of-way area adjacent
to Glenstone between the entranceway to the shopping
center near the "Smitty's" sign exactly where the pickets
had generally been previously picketing for most of the
time.
Another factor considered by the Board in the Giant
Food Markets case was the possibility of enmeshment of
neutral employers in the labor dispute. The General
Counsel alleges:
There is a great likelihood of involving a neutral
employer in this labor dispute if picketing is not al-
lowed in front of the Respondent's store. The Re-
spondent shares this parking lot with several other
businesses, at least two of which have signs adver-
tising their respective businesses located at the park-
ing lot entrances. Persons driving along Glenstone
who, because of the speed of traffic on Glenstone,
the movement of the picketers, and the distance be-
tween them and the signs, may not be able to dis-
cern which business is involved in the labor dispute.
The driver may refuse to enter the parking lot at all
even though his business was with Color Tile or
Midas Muffler or the printing company Likewise,
because of the high rate of speed of drivers turning
off Glenstone and/or their preoccupation with
making a safe turn, those drivers who actually do
enter the lot may have only a brief glimpse of the
picket signs. Some of these drivers may then exit
the parking lot without bothering to ascertain the
subject of the picket signs. Requiring picketers to
station themselves along the entrance to the parking
lot is much more detrimental to the other businesses
than to allow picketers to locate in front of the Re-
spondent's store.
However, again the evidence in the record does not
support this contention. Significantly, it should be noted
that the Union had picketed the Respondent at this shop-
ping center on and off since September 20, 1977, with in-
creased picketing activity occurring between February
23 and September 27, 1979. The Union confmed its pick-
eting, except on September 27, 1979, to the grassy right-
of-way areas between the entranceways leading into the
shopping center on Glenwood Avenue and East Cairo
and East St. Louis Streets, particularly the area adjacent
to Glenwood. Thus, there was a period of time within
which such factors as enmeshment of other employers, in
the labor dispute, inability of the public to identify the
particular employer being picketed, refusal of drivers to
enter the shopping center, etc. could be observed and/or
noticed, yet, the pickets who testified at the hearing gave
no testimony supportive of this.
Further, other evidence in the record shows that the
opposite may be true. The picketing by the Union was
accomplished, until September 27, 1979, at or near the
Respondent's large neon sign atop two high support
poles, probably the most visible advertisement sign at the
shopping center, which is located at the southwest en-
tranceway thereto. Although approximately 200 feet
away from the Respondent's supermarket across the
parking lot, the sign is actually situated in a frontal posi-
tion with relation to the Respondent's store. A separate
"Smitty's" sign and a Midas Muffler sign are located at
the St. Louis Street entranceways to the shopping center
respectively, with the Midas Muffler sign being located
near its own store. The signs carried by the pickets
prominently displayed the Respondent's name "Smitty's"
thereon. From the physical layout of the shopping
center, the general area site of the picketing, and the
signs carried by the pickets, it cannot be said that there
was "a great likelihood of involving a neutral employer
in this labor dispute." Furthermore, no testimony was
educed from any of these "neutral employers" them-
selves to support their actual involvement in any way.
Significantly, and as set forth before, Berry testified that
the picketing had received a great deal of coverage in
the press and that the general public knew what store
was being picketed.
Additionally, the pickets who testified herein did not
or more likely could not testify as to instances of driver
refusal to enter the shopping center because of the pick-
eting, or that persons entering onto the parking lot were
unable to avail themselves of the Union's message.
It is uncontrovertable that the picketing would have
been more effective if conducted right in front of the Re-
SMITTY'S SUPER MARKET 1203
spondent's store. But what is involved in this case is
picketing by nonemployee union pickets on private prop-
erty that puts the issue squarely into the Babcock &
Wilcox construct requiring the balancing of conflicting
rights although exploring the potential alternative means
of communication the Union may have with the intended
audience.
However, other factors that the Board considered in
the Giant Food Markets case are present and supported
by the evidence in the record. That the Respondent's
property is open to the public is clear. As the Board
stated in Giant Food Markets, supra:
However, in weighing the statutory rights of pick-
ets against the property rights of Respondents, such
openness to the public is a factor which may be
considered. Surely, in the absence of picket signs
and handbills, these same individuals would be wel-
come on the site during business hours as potential
customers. "Specific intent to buy is not a prerequi-
site to invitee status. 13 [Emphasis added.]
75 Scott Hudgens, supra.
Also, the Board in Giant Food Markets considered the
union's picketing activities in the light of the picketing
constituting a nuisance, or whether there was evidence
of violence, or of interference with ingress or egress to
the shopping center's stores. Jeff Kollmeyer, a witness
for the Respondent testified that "roofing nails" had been
placed on the parking lot in front of the Respondent's
store, boards with nails left in the shopping center drive-
ways, and trash and cans thrown onto the parking lot
and the Respondent's business signs tampered with.44
Although he could not specifically testify that the
Union's pickets were responsible for the above inci-
dents" he did state that these incidents only started hap-
pening after the Union commenced its picketing at the
shopping center. The pickets who testified herein denied
any responsibility for these occurrences or that they
even observed any such happenings. 46
Albeit not quite free from suspicion and doubt, espe-
cially in view of the uncontested testimony above that
these incidents only started after the Union commenced
its picketing at the shopping center, I do not fmd that
the evidence is sufficient to support the conclusion that
the picketing constituted a nuisance. Further, there was
no evidence in the record that the pickets had engaged
in any acts of violence with any persons, customers, and
deliverymen, etc. when they entered or left the shopping
center.
As the Supreme Court stated in Sears, Roebuck & Co.
v. San Diego County Council of Carpenters, 436 U.S. 180
at 205-206 (1978):
44 Ko1hneyer testified that the Respondent's neon light sign at the
Glenwood Avenue entranceway was occasionally turned off and that the
mobile sign used by its restaurant and containing rearrangeable letters
was sometimes changed to spell out obscene words or messages.
45 Kollmeyer testified that he had seen a picket change the lettering on
the mobile sign on one occasion but could not identify the picketer.
45 Joleen Berry, one of the picketers, testified that she had observed
that the lettering on the mobile sign had been "scrambled" but she
"didn't notice anything obscene."
While Babcock indicates that an employer may not
always bar nonemployee union organizers from his prop-
erty, his right to do so 'remains the general rule. To gain
access, the union has the burden of showing that no
other reasonable means of communicating its organiza-
tional message to the employees exist or that the employ-
ers access rules discriminate against union solicitation.
That the burden imposed on the union is a heavy one is
evidenced by the fact that the balance struck by the
Board and the courts under the Babcock accommodation
principle has rarely been in favor of trespassory organi-
zational activity.
Even on the assumption that picketing to enforce
area standards is entitled to the same deference in
the Babcock accommodation analysis as organiza-
tional solicitation, it would be unprotected in most
instances.
The Board in Giant Food Markets recognized that
property owners or lessees have a right to control the
use of their property and that the fact that this property
is generally held open to the public, that in fact the
public is invited, does not give rise to a constitutional
right of anyone to use the property for his own purposes
in disregard of the property owners' or lessees' wishes.47
Balancing the foregoing factors in the light of the Su-
preme Court's direction to the Board in Babcock &
Wilcox, supra, to accommodate the Section 7 rights and
private property rights "with as little destruction of the
one as is consistent with the maintenance of the other,"
and noting that the Union had engaged in picketing at
the shopping center for a period of some months locating
the pickets on public right-of-way areas between the en-
trances to the shopping center, and having failed to es-
tablish in the record sufficient justification for relocating
these pickets onto the Respondent's private property
other than that the picketing would be more effective,"
under the circumstances in this case, I cannot find in
favor of the Union's right to picket on the Respondent's
private property.49
Having determined that the Respondent's property
rights do not have to yield to the pickets' Section 7
rights, the Respondent did not therefore violate Section
8(a)(1) of the Act when it ordered the pickets off its
property and called the police to accomplish this pur-
pose, and I so find."
47 Hudgens v. NLRB, supra; Central Hardware, supra.
45 The burden on the Union dictates that it prove that locating its
pickets elsewhere than on the Respondent's private property would be
ineffectual for such picketing purposes and objectives.
Hudgens v. NLRB, supra; Central Hardware, supra.
5° See Hutzler Bros. Co. v. NLRB, 630 F.2d 1012 (4th Cir. 1980); Giant
Food Markets v. NLRB, 633 F.2d 18 (6th Cir. 1980).
The Respondent additionally asserts, in its brief,
If all else fails to protect Respondent, then Respondent can find
protection against its federal government under the Fifth Amend-
ment to the United States Constitution which provides in effect that
private property cannot be taken or confiscated by the federal gov-
ernment and given to another private party, and that even if proper-
ty be taken for a legitimate public purpose it cannot be taken with-
out just compensation.
Continued
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Smitty's Super Markets, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Retail Store Employees Local 322, af-
filiated with United Food and Commercial Workers
International Union, AFL-CIO, CLC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) of
the Act by directing, about September 27, 1979, the
Union's pickets engaged in picketing on the private prop-
In Lloyd Corp. v. Tanner, 407 U.S. 551, 567-568, 570 (1971), the Su-
preme Court stated,
We do say that the Fifth and Fourteenth Amendment rights of
property owners, as well as the First Amendment rights of all citi-
zens must be respected and protected. . . . Although accommoda-
tions between the values protected by these three Amendments are
sometimes necessary, and the courts properly have shown a special
solicitude for the guarantees of the First Amendment, this Court has
never held that a trespasser or an uninvited guest may exercise gen-
eral rights of free speech on property privately owned and used non-
discriminatorily for private purposes only. Even where public prop-
erty is involved, the Court has recognized that it is not necessarily
available for speaking, picketing, or other communicative activities.
The due process clauses of the fifth and fourteenth amendments pro-
vide that Ink, person shall . . . be deprived of life, liberty, or property,
without due process of law." There is a further proscription in the fifth
amendment against the taking of "private property . . . for public use,
without just compensation." The Supreme Court, in Hudgens v. NLRB,
supra, found that the first amendment protections do not apply at all to
union pickets on the private property of a shopping center, no matter
what its size, and that the rights of pickets would thereafter be deter-
mined strictly and solely by resort to the protection given them under
Sec. 7 of the Act.
erty immediately in front of customer entrances to its
store to leave the premises, and by causing the police to
also order the pickets to leave the premises.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed51
ORDER
The complaint is dismissed in its entirety.
In both the Hudgens, supra, case and subsequently in the later Sears,
Roebuck & Co., supra, case the Supreme Court considered the rights of
union pickets on private property to be determinable under Sec. 7 of the
Act. In view of this it would seem incredible, to say the least, to suppose
that the Court had not also considered at the same time the impact of the
fifth amendment's protection of property rights of the owners or lessees
of the private property under these circumstances. Implicit in these deci-
sions is the Court's strong feeling that although the rights of union pick-
ets are governed by the National Labor Relations Act, the fifth amend-
ment mandates an accommodation of the rights of these property owners
or lessees whose property is being picketed and the Sec. 7 rights of the
picketers. It is clear that it is those very property rights protected under
that amendment that "requires the heavy burden" of proof to be met by
the Union in justifying its trespass actions in these instances. The recent
ruling of the Court in Pruneyani Shopping Center a Robbins, 64 L Ed 2d
741 (1980), supports this. Thus, although requiring consideration and ac-
commodation of property rights, the fifth amendment would not preclude
the rights of private property owners from becoming at times subordinate
to the Sec. 7 rights under the Act in certain circumstances See Babcock
& Wilcox, supra; Central Hardware, supra; Hudgens, supra; Sears, Roebuck
& Co., supra.
51 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 pur-
poses.