Giant Food Markets, Inc.

GIANT FOOD MARKETS, INC. Giant Food Markets, Inc. and Retail Clerks Union, Local 1557, AFL-CIO S. S. Kresge Company and Retail Clerks Union, Local 1557, AFL-CIO Wiggins & Co., Inc. and Retail Clerks Union, Local 1557, AFL-CIO. Cases 10-CA-11926, 10-CA 11927, and 10-CA 11928 April 4, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On June 10, 1977, Administrative Law Judge Hen- ry L. Jalette issued the attached Decision in this pro- ceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondents filed a brief in response. With permission of the Board, General Counsel and Respondents subsequently filed supple- mental briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent that they are consistent herewith. The Administrative Law Judge found that Respon- dents did not violate Section 8(a)(l) of the Act by demanding that the Union's pickets, engaged in area standards picketing, cease their picketing on the pri- vate property of Respondents. We find merit in the General Counsel's exceptions to this finding. Respondent Wiggins owns a tract of land which it leases to Kresge. Kresge operates a K-Mart store in part of a building on that land and, prior to March 1976,' Allied Food Markets operated a store in the remainder of the building, subletting this space from Kresge. On April 5, Giant Food began operating a store in the space formerly occupied by Allied, also under a sublease with Kresge. Giant employed none of the former Allied employees (who had been represented by the Union), and Giant's employees had no union representation. On April 5, the Union started picketing and hand- billing on the sidewalk immediately in front of Giant. i All events occurred in 1976 unless otherwise noted. Some of the pickets were former Allied employees- none was a Giant employee. The picket signs read as follows: Informational Picketing-Giant Food Markets does not pay area standards wages and benefits. Please don't shop. Retail Clerks Union 1557, 203 North I 1th Street, Nashville, Tennessee The handbills also stated that the picketing was in- formational; that Giant did not employ the former Allied employees; that Giant had brought wages, working conditions, and benefits below area stan- dards, and urged the public not to shop at Giant. On the afternoon of April 5, representatives of Kresge and Giant informed the representative of the Union and the other pickets that the entire shopping center premises were private property and demanded that the pickets and handbills leave the property. The demand was not honored and the pickets remained. On April 6, the picketing resumed in the same area until late afternoon when the Union was served with a temporary restraining Order issued that day by a state court. Thereafter, the Union picketed and hand- billed just outside the property line at the entrances and exists to the shopping center. The Administrative Law Judge found that the General Counsel's allegations that Respondents un- lawfully "prohibited" the picketing and handbilling were not supported by the evidence. Aside from ob- taining a temporary restraining Order and seeking an injunction against the picketing, permissible conduct under the Act, the only other conduct on the part of Respondents was the demand made by Kresge and Giant that the pickets and handbills leave the prem- ises. That demand, absent threats of arrest or any other threats, was not, according to the Administra- tive Law Judge, conduct violative of Section 8(a)(1). Having come to this conclusion, he found it unneces- sary to discuss whether such picketing is protected under the Act and, under the circumstances presented here, the right to picket on the private property of Respondents. The General Counsel alleged that the Union was engaged in lawful area standards picketing which is protected under the Act from employer interference, and, therefore, Respondents' prohibition of such pick- eting on its property is violative of Section 8(a)(1). We agree. In the Calumet Contractors case,' the Board found that area standards picketing, carried on with the ob- jective of requiring an employer to conform its stan- dards of employment to those prevailing in the area, was not violative of Section 8(b)(4)(C), in the absence 2 Internaional Hod Carriers, Building and Common Laborers' Union of America, I.ocal 41, FL- CIO (Calumet Contractors Association), 133 NLRB 512 (1961) 241 NLRB No. 105 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a showing that the real objective of the picketing was for recognition and bargaining. Subsequently, in Claude Everett Construction Company,3 such picketing was found to be lawful, and outside the proscription of Section 8(b)(7)(C), when it was clear that the object of the picketing was neither union recognition or bar- gaining with the employer, nor an attempt to organize the employer's employees to accept or select the union as their bargaining representative. Since decid- ing those cases, the Board has adhered to the position that area standards picketing is lawful in the absence of evidence showing an objective proscribed under the Act. Area standards picketing is engaged in by a union to protect the employment standards it has success- fully negotiated in a particular geographic area from the unfair competitive advantage that would be en- joyed by an employer whose labor cost package was less than those of employers subjected to the area contract standards.4 Failure to protect these stan- dards could result in an undermining of wage and benefit gains in such areas. Therefore, in its attempt to protect the area standards, a union acts only in its own interest, but also in the interest of employees of employers with whom it has negotiated more benefi- cial employment standards. It is this legitimate nature of the union's actions which we believe makes prop- erly conducted area standards picketing not only law- ful, but affirmatively protected under Section 7 of the Act. Employees have a right to protect advancements they have made, and their union as their representa- tive has a right to protect their interests.5 However, the protected nature of a general form of picketing does not necessarily clothe the pickets with a right to infringe upon the private property rights of others. In Hudgens v. N.L.R.B.,6 the Supreme Court held that any rights which pickets might be afforded to engage in such activity on private property do not emanate from the first amendment of the Constitu- tion. but rather have as their source the National La- bor Relations Act. It further counseled that the Board, in determining the extent of such rights, should accommodate the Section 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other."7 This I Houston Building and Construction Trades Council (Claude Everett Con- struction Company), 136 NLRB 321 (1962). Sales Delivery Driverr, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California, et al. (Alpha Beta Acme Markets. Inc.), 205 NLRB 462 (1973). The term "employee," as defined in Sec. 2(3) of the Act, includes any employee, not just employees of a particular employer. We have interpreted this to mean members of the working class generally. Briggs Manufacturing Company, 75 NLRB 569 (1947); Oak Apparel, Inc., 218 NLRB 701 (1975): Little Rock Crate d Basket Co., 227 NLRB 1406 (1977). 6 424 U.S. 507 (1976). 'Citing N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112 (1965). approach was prescribed by the Court in Babcock & Wilcox, supra, and Central Hardware Company v. N.L.R.B., 8 both dealing with union organizing by nonemployees on private property, and was also ap- plied to the primary picketing in support of an eco- nomic strike involved in Hudgens. Although the pick- eting here is dissimilar in purpose to either the organizational activity involved in Babcock, or the primary economic picketing by the employer's em- ployees in Hudgens, the Board's role is the same-to accommodate the Section 7 rights of the pickets with the private property rights of the Employer.9 How- ever, as the Court pointed out in Hudgens, the "locus" of the accommodation of these rights "may fall at differing points along the spectrum depending on the nature and strength of the respective Section 7 rights and private property rights asserted in any given con- text." In accommodating the respective rights of the par- ties, it is necessary to examine and weigh several fac- tors. In the instant case, it may be argued that area standards picketing is not for the benefit of the Em- ployer's employees, but rather for the benefit and pro- tection of complete strangers to this employment rela- tionship. Therefore, such picketing should not be allowed on the Employer's premises. However, as we noted earlier, area standards picketing is a protected Section 7 right and is for the protection of "employ- ees" represented by the union. The fact that the em- ployees whom the picketing is primarily meant to benefit are not those of the picketed employer is not as important in our view as is that fact that the em- ployer being picketed is the employer with whom the union has the dispute. It is this employer which the Union charges is undermining the livelihood of the represented employees in the area. It logically follows that the location of the employer's business is where the union can reasonably expect its picketing and handbilling to have the most impact. Moreover, there is also a strong possibility in such a situation that such union activity, if' successful, will inure to the benefit of the employer's employees through in- creased compensation. Also to be considered as a factor is the intended audience of the pickets. Here the audience which the pickets intend to reach with their message obviously includes Giant and its employees. However, the pri- mary intended audience consists of the potential cus- tomers of Giant who become readily identifiable only when they decide to enter the store, which may be on impulse when they see an advertisement in the win- dow.'° In a situation such as this, where there is more s 407 U.S. 539 (1972). 9 See Sears Roebuck & Co. v. San Diego County District Council of Carpen- ters, 436 U.S. 180 (1978). 1o Scott Hudgens, 230 NLRB 414 (1977). 728 GIANT FOOD MARKETS, INC. than the one store in the shopping center (albeit in this case there are only two stores as compared with 60 in the Hudgens situation), this is particularly true. In this regard we find this case distinguishable from Babcock and Wilcox and other cases involving organi- zational solicitation. As noted in Scott Hudgens, su- pra, where, as in organizational situations, the audi- ence is specific (the employees to be organized), means of communication other than direct entry onto the employer's property (use of mail, telephone, per- sonal contact, etc.), may afford reasonable access to that audience. However, where, as here, the intended audience is not readily identifiable until the audience attempts to enter the store, such other means of com- munication cannot be considered "reasonable" in re- lation to their possible effectiveness." In a similar vein, requiring that any picketing or handbilling be conducted off the private property, at entrances to the parking lot 250 feet or more from the store entrance (an approximation drawn from Jt. Exh. I in evidence), would too greatly dilute the Union's message for It to be meaningful. This result would follow not only from the fact that Giant is not the only store located at the shopping center, but also because motorists entering the parking lot from the adjoining public road would be more concerned with safely making their entrance than with reading a picket sign or attempting to receive a handbill at the roadside. Another factor to be taken into account is the like- lihood of a union's picketing enmeshing neutral em- ployers in its dispute with a particular store in a shop- ping center. With a momentary glance at the picketing, a potential shopper at the center might quite reasonably infer that the entire center was being picketed and refuse to enter the center at all. Indeed, it would seem that requiring the pickets to station themselves at the entrances to the parking lot in this case would be more detrimental to neutral Kresge's business than if the pickets were stationed directly in front of the Giant store. It is true that Respondents here do have a right to control the use of their property, either as owners or as lessees. It is also true that the fact that this prop- erty is generally held open to the public, that in fact the public is invited, does not give rise to a constitu- tional right of anyone to use the property for his own " The plurality opinion of the Supreme Court in Sears, although recogniz- ing that it was the Board's task, in the first instance, to accommodate the competing interests involved, suggested (but did not specifically find), that area standards picketing may be entitled to less protection than was given the organizational solicitation involved in Babcock (436 U.S. at 205). For the reasons set forth above, we respectfully consider that the Court did not fully examine and set forth the differences between such oral solicitation and consumer picketing and the Union's substantial justification for seeking to maintain area standards. See also the concurring opinion of Justice Black- mun 437 U S. at 210) and the dissenting opinion of Justice Brennan (436 U.S. at 231). purposes in disregard of the Respondents' wishes. z2 However, in weighing the statutory rights of pickets against the property rights of Respondents, such openness to the public is a factor which may be con- sidered. Surely, in the absence of picket signs and handbills, these same individuals would be welcome on the site during business hours as potential custom- ers. "Specific intent to buy is not a prerequisite to invitee status .... "3 That the property here is open to the public also distinguishes this case from Bab- cock & Wilcox and similar cases where the property is fenced off or otherwise closed to the general public. (See Justice Brennan's dissent in Sears, 436 U.S. at 231.) Aside from Respondents' annoyance with the possibility that the pickets' activities might have an adverse effect on business at the shopping center, there are no grounds for finding that the picketing is a nuisance. There is no evidence of violence or of inter- ference with ingress or egress at the Giant or Kresge stores. Balancing the foregoing factors weighing in favor of the right to picket in front of the Giant store against the reasons for prohibiting such picketing, pursuant to the Babcock & Wilcox criteria, we con- clude that Respondents' property rights must yield to the pickets' Section 7 rights. Having determined the right to engage in the pick- eting and handbilling in front of the Giant store, the question remains whether Respondents interfered with such a right in violation of Section 8(a)(1) of the Act. We agree with the Administrative Law Judge that Respondents' petitioning for an injunction does not constitute such unlawful interference. However, we do not agree with his finding that a demand that pickets leave the property must be accompanied by a threat of arrest or some similar threat for it to consti- tute unlawful interference. Contrary to the opinion of the Administrative Law Judge, we believe that a de- mand made by an owner or leaseholder of the prop- erty that pickets remove themselves from that prop- erty is a sufficient interference with the exercise of protected activity coming within the ambit of Section 8(a)( 1 ) of the Act. Those receiving the demand would not know what action might be taken, and we will not require that they subject themselves to the possibility of arrest or some physical act by the one making the demand in order to carry on their protected activity. Rather, we find that such a demand interfered with the pickets' rights in violation of Section 8(a)(l).'4 In it Hudgens v N L.R B. supra., Central Hardware, supra ' Scott Hudgens. supra '' As the Administrative Law Judge correctly pointed out, Respondent Wiggins was not involved in the demand that the pickets leave the property, nor did it engage in any other activity which we would find violative of the Act. 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) so finding, we deem irrelevant the pickets' failure to honor the demand in this case. CON(CI.USIONS OF LAW I. Giant Food Markets, Inc., S.S. Kresge Com- pany, and Wiggins & Co., Inc., and each of them, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1557, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By demanding that the Charging Party's pickets and handbillers leave the shopping center premises while they were engaging in protected activity under Section 7 of the Act, Respondents Giant Food Mar- kets, Inc., and S.S. Kresge Company violated Section 8(a)(1) of the Act. 4. The General Counsel has failed to establish that Respondent Wiggins & Co., Inc., engaged in conduct violative of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. TIlE EFFECTI OF THE UNFAIR LABOR PRA('II(CE UPON COMMERCE The activities of Respondent Giant Food Markets. Inc., and S.S. Kresge Company, set forth above, oc- curring in connection with their operations described above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. distributing handbills as part of protected concerted activity by demanding that they leave the shopping center premises. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at their stores in the shopping center lo- cated on Kingston Pike, Knoxville, Tennessee, copies of the attached notice marked "Appendix."' 5 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondents' authorized representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. Respondents shall also send a copy or copies of said notice to the Retail Clerks Union, Local 1557, AFL-CIO, 203 North 11th Street, Nashville, Tennessee, 37206. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 15 In the event that this Order is enforced by a judgment of a United States court of appeals, the ords in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the LUnited States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX THE REMEDY Having found that Respondents Giant Food Mar- kets, Inc., and S.S. Kresge Company violated Section 8(a)(1) of the Act, we shall order that they cease and desist therefrom and that they take certain affirmative action which will effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela-- tions Board hereby orders that Respondents Giant Food Markets, Inc., and S.S. Kresge Company, Knoxville, Tennessee, their officers, agents, succes.- sors, and assigns, shall: I. Cease and desist from: (a) Prohibiting the representatives of Retail Clerks Union, Local 1557, AFL-CIO, from picketing and NOIC('E To EMPLOYEES PoSIIED BY ORDER OF THE NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT prohibit representatives of Re- tail Clerks Union, Local 1557, AFL CIO, from picketing and distributing handbills as part of their protected concerted activity by demanding that they leave the shopping center premises. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. GIANI FOOD MARKETS, INC'. S.S. KRES(;F COMPANY 730 GIANT FOOD MARKETS. INC DECISION STAI'INI ()1: tIFE CASE HENRY L.. JAI.LEr.A, Administrative Law Judge: This pro- ceeding involves the allegation that the above-named Re- spondents violated Section 8(a)(1) of the National Labor Relations Act, as amended, by prohibiting the above- named Union. the Charging Party herein, from picketing and handbilling at the premises of a store operated y Re- spondent Giant Food Markets, Inc. The proceeding was initiated by charges filed on April 29, 1976, pursuant to which a complaint and order consolidating cases, com- plaint, and notice of hearing issued on January 18, 1977. On March 23, 1977, hearing was held in Knoxville, Tennessee. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties, I hereby make the following: FINI)IN(S OF FA( I I. FACTS Respondent Wiggins & Co.. Inc., owns a tract of land in Knoxville, Tennessee, which it has leased to Respondent S. S. Kresge Company since 1967. The tract of land has been improved by the construction of one building in which, for a number of years. Respondent Kresge has oper- ated a "K-Mart" store and Allied Food Markets operated a retail food store pursuant to lease or other business arrange- ment with Respondent Kresge. About March 1. 1976, Al- lied Foods ceased operation of the store:' and on April 5, 1976, Respondent Giant began operation of the retail food store on the premises previously occupied by Allied Foods pursuant to a sublease from Respondent Kresge. The employees of Allied Food Markets had been repre- sented by the Union herein and their terms and conditions of employment had been governed by collective-bargaining agreement between the Union and Allied Food Markets. Respondent Giant's employees are not represented by any labor organization; and on April 5, 1976. the Union. by its representatives and individuals who were not employees of Respondents but some of whom had been employees of Allied Foods, started picketing and distributing handbills on the premises of the shopping center. specifically on the sidewalk immediately in front of Respondent Giant's store. The picket signs read as follows: "Informational Picket- ing-Giant Food Markets does not pay area standards, wages, and benefits. Please don't shop. Retail Clerks Union, 1557, 203 North I 1th Street, Nashville, Tennessee." The handbill read as follows: Informational Picketing THIS PI(KETING IS NOT TO PREVENT I)ELIVERIES FROM BEING MAD)E OR T SO()P EMPLOYEES ROM WORKING. I This date is based tn testimony of Union Representative F L. Collins. In view of the stipulated fact that Respondent Kresge subleased the premises to Respondent Giant on Januar 30. 1976. Collins may hase been mistaken: however, the specific date is unimportant TilS IS OUR WAY OF IFORMIN(; YO(), THE B YN(i P'B- IIC. ()F A SIT'TATION ItIAT HAS ('OSI SVE RAI KNOX- V..E C (IIIZINS TEIR JOBS. A I.IEI) FOODS CORPORAlON SOLt) IlIS STORE 10 (GIANI ()()OODS ARKEIS, IN('. (ilANT FOOI) MARKTS DID ) NO() EMPLOY tile EMPLOYEES WHtO \WERE WORKIN(i Ar TilE STORE THEY BOUHI. I-HESE EMPI.OYEES WERE MAK- IN(i GOOD WAGES AN) BENEFITS. NOW IHEY ARE ()N U:NEMPL.OYMENT BENElII[S AND) FOOD SIAMPS ALl. IHANKS It (GIANr FOO()I) MARKEIS. THIS COMPANY NOW WANIS YOU' TO WELCOME IIEM -Or THIS ITY WIrt OPEN ARMS! DO THEY I)ERSEE (SIC) SI(II A WEI.COME? WE SAY N) -NErER! (ilANI FOOD MARKETS NOT ONLY BROUlGHtI WAGES, iWORKING (CONDITI()NS AND BENEFITS BELt.) AREA STANDARDS tI tHIS ST(ORE., EY (REATEI) NE M PI.()Y- MELNI FOR I- EMPLO.(Y\EES PRE\'I()OUSLY WO(RKING IN rtltS S ORE. Please don't shop Your Support Will Be Greatl Appreciated RETAIl ( IRKS UNION. 1O()( Al 1557, AFl-CIO 203 North 11 th Street Nashville, Tennessee 37206 On the afternoon of April 5, 1976. representatives of Re- spondent Kresge and Respondent Giant jointly informed the representative of the Union and the pickets and hand- billers acting in concert with him that the entire shopping center premise, including the areas on which they were picketing and handbilling. was privately owned property and that the representatives of Respondent Kresge and Re- spondent Giant demanded that the representative of the Union and those acting in concert with him leave the prem- ises. These individuals refused to leave the premises and continued to picket and distribute handbills throughout the business hours on April 5, 1976. This activity was resumed the following day and continued until the issuance and ser- vice of a temporary restraining Order issued by a state court that same day. Thereafter, the Union resumed picket- ing and handbilling just outside the property line at certain of the exits and entrances to the shopping center. On Feb- ruary 23, 1977, after hearing. the state court dismissed the petition for injunction for lack of jurisdiction. At the time of the hearing herein, the order of dismissal was pending appeal before the Tennessee Supreme Court. II. ANAIYSIS AND CONCLUSIONS As noted earlier, the complaint alleges that Respondents violated Section 8(a)( 1) of the Act in that, in the words of paragraph 7 of the complaint, they "prohibited the Union from picketing and handbilling of Giant's store." The com- plaint did not specify by what means Respondents "prohib- ited" the picketing and handbilling, and the record indi- cates only two possible ways in which the prohibition was accomplished: (I) by the conduct of Respondents in peti- 731 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD tioning for and obtaining a temporary restraining order against the picketing and handbilling on their premises, and (2) by the conduct of the representatives of Respondent Kresge and Respondent Giant on April 5 in demanding that the union representative and pickets leave the prem- ises. As to ( I), it is settled law that the obtaining of an injunc- tion against peaceful picketing and handbilling is not con- duct violative of Section 8(a)(1) of the Act, even if such picketing and handbilling are protected by Section 7 of the Act:2 and General Counsel conceded at the hearing that he was not contending that the obtaining of the injunction constituted 8(a)( I) conduct. As to (2), General Counsel has not indicated on what basis a "demand" that union representatives leave Respon- dents' premises constitutes interference, restraint, or coer- cion within the meaning of Section 8(a)( ) of the Act. The demand was unaccompanied by any threats, unlike the de- mands in Hudgens v. N.L.RB.. 424 U.S. 507 (1976). and Peddie Buildings., supra, where the demands included threats of arrest. and I can see no basis for inferring an unlawful threat from the demand alone. As the record indi- 2Clde Taylor, dbha Clyde Taylor (onmpnar. 127 NL RB 103 (1960): United Aircraft torporation (Pratt & Whitne Dision). 92 NLRB 382 (1971); Frank Itsceglia and Vincent ivceglia, t/a Peddie Buildings. 203 NLRB 265 (1973). cates, the Union did not comply with the demand; yet Re- spondents did not engage in any conduct other than to pe- tition for an injunction, an act which was itself not unlav, ful.l For the foregoing reasons, assuming, arguendo that the Union had the right to picket and handbill on Respondents' premises, I find that there is no showing that Respondents engaged in conduct which unlawfully interfered with the exercise of that right. CON(I.tUSIONS OF LAW I. Giant Food Markets, Inc., S. S. Kresge Company, and Wiggins, & Co., Inc., and each of them, are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1557, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. General Counsel has failed to establish by a prepon- derance of the evidence that Respondents engaged in con- duct violative of Section 8(a)( I) of the Act. IRecommended Order or dismissal omitted from publi- cation . EI ven if the demand were construed as coercive, there is no basis for finding a violation against Respondent Wiggins which did not participate in the demand but only joined in the injunction 732