Holland Rantos Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holland Rantos Company, Inc. a division of Youngs Drug Products Corporation and Local No. 773, United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO Central Jersey Industrial Park, Inc., Edmar Company, Incorporated, Edward Chandler Realty Company, Inc. and Local No. 773, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL- CIO. Cases 22-CA-7600 and 22-CA-7601 February 6, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 16, 1977, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding.' Thereafter, Respondents filed ex- ceptions and a supporting brief, and the General Counsel filed exceptions and brief, and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record 2 and the attached Decision in light of the exceptions and briefs,3 and has decided to affirm the rulings, findings,4 and conclusions 5 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondents, Holland Rantos Company, Inc. a division of Youngs Drug Products Corporation, and Central Jersey Industrial Park, Inc., Edmar Company, Incorporated, Edward Chan- dler Realty Company, Inc., of Bridgewater Town- ship, Bound Brook, New Jersey, jointly and several- ly, and their officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. I Pursuant to Sec. IO(j) of the Act, the Board on June 23, 1977, sought a 90-day injunction against Respondents in the U.S. District Court for the District of New Jersey. The court granted the sought-for temporary relief on July 20, 1977. On September 26, 1977, the Board moved for a 90-day extension, which was granted by the court on October 7, 1977, said injunction to be in effect until January 16, 1978. The District Court has extended the injunction to March 16, 1978. This injunctive relief permitted the Union's pickets to reenter the premises of Central Jersey Industrial Park and to picket Holland Rantos' premises. 2 Respondents' request for oral argument before the Board is hereby denied. 234 NLRB No. 113 3 We find no merit to Respondents' contention that the Board's 10(j) procedures deny due process to Respondents and are prejudicial to Respondents' cause. Nor do we find merit in Respondents' contention that these procedures are not consonant with the purposes of the Act. The Board, in fulfilling its statutory obligation pursuant to Sec. 10(j) and the Board's "reserve clause" in Sec. 3(d), does not act, contrary to Respondents' argument, as prosecutor in the filing of a 10(j) injunction. The Board appoints the General Counsel to represent it in Federal court for the purposes of Sec. 10(j). Furthermore, the General Counsel has not, contrary to Respondents' claim, engaged in any improper ex parte communications. The relationship between the General Counsel and the Board in 10(j) proceedings is analogous to the attorney-client relationship with its attendant privilege of confidentiality. 4 Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 5 Inasmuch as we agree with the Administrative Law Judge's conclusion that the use of mass communication media by the Union was an unreasonable alternative, we find it unnecessary to consider whether the General Counsel has the burden of proving that the use of mass communication media was an unreasonable alternative to picketing. DECISION STATEMENT OF THE CASE1 ROBERT W. LEINER, Administrative Law Judge: This case was heard pursuant to a consolidated amended complaint, issued May 3, 1977, and a notice of hearing thereon, by the Regional Director, Region 22, National Labor Relations Board, alleging 2 that Holland Rantos, Inc. a division of Youngs Drug Products Corporation, herein called Holland Rantos, and three other corporate defendants, Central Jersey Industrial Park, Inc. (hereinaf- ter sometimes referred to as CJIP), Edmar Company, Incorporated (hereinafter sometimes referred to as Edmar), and Edward Chandler Realty Company, Incorporated (hereinafter sometimes referred to as Chandler Realty), violated Section 8(a)(1) of the National Labor Relations Act, as amended, in that Holland Rantos, since on or about April 1, 1977, and the other three corporate Respon- dents, since on or about April 8, 1977, have unlawfully denied access to striking employees of Holland Rantos who were picketing or attempting to picket Holland Rantos at its leased premises in an industrial park owned and controlled by the three corporate defendants. In their duly filed answers, Respondent Holland Rantos and the other three corporate Respondents not only deny commission of the alleged unfair labor practice, but the three corporate Respondents also deny jurisdiction of the Board. The hearing on the matters alleged in the complaint, as amended, was held in Newark, New Jersey, on May 19 and June 1 and 9, 1977. All parties were represented by counsel and afforded full opportunity to adduce evidence, to call, examine, and cross-examine witnesses, and to file briefs. Subsequent to the close of the hearing, General Counsel and Respondent Holland Rantos duly filed briefs. Upon the entire record in this case, including the briefs, and from my observation of the witnesses, I make the following: t The names of the parties appear as amended at the hearing. 2 The amended complaint was further amended at the hearing. 726 HOLLAND RANTOS CO. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS A. Central Jersey Industrial Park, Inc.; Edmar Corporation; and Chandler Realty Company, Inc. I. Physical description Central Jersey Industrial Park (hereinafter sometimes referred to as the Industrial Park) is an industrial park in Bridgewater Township, Somerset County, New Jersey, and so known by the public due to a water tower on the property bearing that name and the same name appearing on the sides of guard vehicles patrolling the property. The evidence shows it is owned, as pertinent herein, by two corporations: Edmar Corporation and Chandler Realty Company, Inc. The Industrial Park is a multiacre expanse within Bridgewater Township, bounded on the north by State Highway Route 22, a four-lane highway, and on the south by State Highway Route 28, a two-lane highway, also known as Union Avenue. Running north and south for a distance of .45 miles through the property and connecting the two state highways is Chimney Rock Road. Chimney Rock Road, between the two state highways, is under the police jurisdiction and control of Bridgewater Township; to the north and south of those state highways, control of Chimney Rock Road is in Somerset County. Chimney Rock Road is 30 feet wide, consisting of two lanes, one running north, the other south. At its western edge is a curb 6 inches above the street. About 20 feet west of this curb is a railroad track bed, the intervening 20-foot width being a grassy knoll which rises to a height of about I foot above the road level of Chimney Rock Road. The railroad track crosses Chimney Rock Road somewhat to the south of a midline between the two state highways, and also inter- cepts both state highways. On the east side of Chimney Rock Road, between state highways, immediately adjacent to the northbound lane, is a 17-foot-wide area running parallel to the roadbed. This is a parking area owned by Respondent Edmar Corporation. It is separated from Chimney Rock Road itself by a low curb. Opening on the east side of Chimney Rock Road, at a point .15 miles south of Route 22 and .3 miles north of Route 28, is a 40-foot-wide private street, running east-west for a distance of .2 miles into Central Jersey Industrial Park. This is Easy Street. Along the length of both curbs on Easy Street are 7-1 /2-foot-wide yellow-lined parking areas. Easy Street is the only access into that part of Central Jersey Industrial Park between the state highways, east of Chimney Rock Road. That section of the Industrial Park, serviced by Easy Street, is also owned by Edmar Corpora- tion. There are 14 buildings in the park area east of Chimney Rock Road, the Edmar section of CJIP, of which 9 front on Easy Street. One of such buildings is an office and factory building occupied by Respondent Holland Rantos pursu- 3 The original complaint named only Central Jersey Industrial Park, Inc., as the corporate Respondent owning and controlling the Industrial Park. 4 Edward Chandler, president of both CJIP and Chandler Realty, testified that the security guards patrolling the Industrial Park are actually employed by Chandler Realty. The lease between Edmar and Holland ant to a lease from Edmar. Of these 14 buildings, 3 also abut the CJIP 17-foot parking areas running along the east side of Chimney Rock Road. In short, the CJIP property cast of Chimney Rock Road is owned by the Edmar Corporation, that on the west side of Chimney Rock Road, by Chandler Realty. These two areas comprise the sections of Central Jersey Industrial Park which are pertinent to this case. 2. Ownership and control of the three real estate corporations At the hearing, counsel for Edmar, Chandler Realty, and CJIP insisted that CJIP, a mere corporate shell without function, indeed, whose corporate franchise tax itself was paid by the personal check of its president,3 owned no property in the industrial park and was a stranger to any alleged unfair labor practices. The evidence of record, however, shows (G.C. Exh. 14) that, in conjunction with a lease between Edmar and Holland Rantos, CJIP agreed to provide to Holland Rantos, security (guard) and grasscut- ting services for a consideration of $25 per week. Thus CJIP, on this record, engages in business transactions and holds itself out as capable of providing services.4 In any event, the complaint (par. 4(b)), as amended at the hearing, alleges that CJIP, Chandler Realty, and Edmar constitute a single integrated enterprise engaged in the business of providing a trade name, owning and leasing real estate, at its Chimney Rock Road, Bound Brook, New Jersey, facility. The amended consolidated complaint alleges, and Chan- dler Realty, Edmar, and CJIP separately admit, in plead- ings or at the hearing, service of the charges, that each is a New Jersey corporation, and that their common address for doing business5 is Chimney Rock Road, Bound Brook, New Jersey. Chandler Realty and CJIP admit, and Edmar denies, that Edward Chandler, an individual, has been a stockholder, agent, and chief operating manager of CJIP, Edmar, and Chandler Realty. Chandler Realty and Edmar admit, but CJIP denies, that each is in the business of leasing real estate and related services. Edmar and Chandler Realty separately admit, and CJIP denies, that CJIP, Edmar, and Chandler Realty, in the 12- month period prior to issuance of complaint, collectively received from leased real estate gross revenues in excess of $100,000 of which $25,000 or more was received from enterprises in interstate commerce, including Holland Rantos. All three corporations deny that they constitute a single employer within the meaning of Section 2(2) of the Act. The evidence shows, according to the admissions of Edward Chandler, that he is the sole stockholder and president of both CJIP and Chandler Realty. The corpo- rate secretary (Esther Lukoff) in each case is Edward Chandler's office clerical. She is also assistant secretary of Edmar Corporation (G.C. Exh. 14). Rantos (G.C. Exh. 14) provides that CJIP's undertaking to provide lawn- cutting and watchmen services may be assigned at CJIPs election. 5 As above noted, CJIP insists it is not engaged in doing business but has merely a corporate existence as a shell. 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The officers of Edmar Corporation are George Chandler (president), brother of Edward Chandler, and Marguerite Chandler (secretary), daughter of Edward Chandler. The evidence fails to show the names of the Edmar directors. Of the 100 authorized shares of Edmar's stock, 49 percent is held in the corporate treasury. Of the remaining 51 percent, Marguerite Chandler owns 48 percent and Edward Chan- dler owns 3 percent. Edward Chandler testified without contradiction that, regardless of stock ownership, he is the "manager" of Edmar who solves the business problems his daughter cannot solve; that his brother, the president of Edmar, is never at the Edmar office; that while his daughter is present 5 days per week, is paid a salary, and is learning the business, it is Edward Chandler himself who manages the business. Edward Chandler testified that he is the chief guiding officer of all three corporations. The record also shows that Edmar and Chandler Realty pay the telephone bill for CJIP, which has no bank account; and that all three corporations have a common telephone number, share the same office space, have the same clerical personnel, and that it was the Edmar Corporation which leased certain premises in the Industrial Park to Holland Rantos, effective April 3, 1974. The present lease between Edmar and Holland Rantos expires on April 30, 1979. A map (G.C. Exh. 17) of the Industrial Park distributed to truckdrivers and other park visitors by Edward Chan- dler states that the "owners" of the Industrial Park are "Chandler Realty Co." and Edmar Corporation. All three corporations function as owners, lessors, and/or custodians of the Industrial Park property. B. Concluding Findings, Single Integrated Employer Although no one element is controlling, it is established that the four indicia often found essential to a conclusion of a "single integrated enterprise" are (I) common owner- ship and financial control; (2) common management; (3) interrelation of operations; and (4) centralized control of labor relations. s The financial and labor relations "con- trol" must be actual as opposed to potential. Sakrete of Northern California, Inc., 140 NLRB 765 (1963), enfd. 332 F.2d 902 (C.A. 9, 1964), cert. denied 379 U.S. 961 (1965); compare: Western Union Corporation, 224 NLRB 274 (1976). Here, Edward Chandler is the president and sole share- holder of CJIP and Chandler Realty. He admitted that, although he is not a corporate officer in and is only a minority shareholder in Edmar, he makes the business decisions his daughter Marguerite is unable to make in Edmar. Marguerite Chandler, though salaried and present on a daily basis at Edmar, is still learning the business. It is also true that Marguerite Chandler, with 48 shares, is the controlling shareholder of Edmar with Edward Chandler holding a minority of 3 shares. On the other hand, George Chandler is never present and does not conduct daily activities of Edmar. The three corporations share the same office, telephone numbers, and clericals. Obligations for 8 A fifth element sometimes mentioned is that there be representation to the public of the several organizations as a single integrated enterprise. International Union of Operating Engineers, Local 428 (See Bee Slurry Matic, Inc.), 169 NLRB 184, 185(1968). providing custodial services pursuant to lease are assigned from one corporation to the other. Although there are no collective-bargaining relationships of these corporations manifested in this record, the dispositive evidence is that Edward Chandler is the admitted senior officer and sole owner of two of the three corporations and is the guiding and controlling force in the affairs of all three corporations, regardless of stock ownership. Indeed, there is a holding out to the public that Central Jersey Industrial Park is an integrated and, in any case, undifferentiated operation owned by Chandler Realty and Edmar (G.C. Exh. 17). I find, therefore, contrary to the denial entered by the three Respondent real estate corporations, that there is the requisite interrelation of ownership, operations, and func- tion of the three corporations in addition to the actual and active control of these functions and the affairs of all three corporations in the hands of Edward Chandler (notwith- standing that he does not "own" nor even is a corporate officer of Edmar Corporation) to support the conclusion that, under the court-approved Board rule, Central Jersey Industrial Park, Inc., Edmar Company, Incorporated, and Edward Chandler Realty Company, Inc., constitute, and are, a "single integrated enterprise" and a single employer within the meaning of Section 2(2) of the Act, as amended. Cowles Communications, Inc., 170 NLRB 1596, 1598-99 (1968). Further, in view of the separate admissions by Edmar and Chandler Realty that each derives annual revenue for leasing of property in the Industrial Park in excess of $100,000 of which at least $25,000 is derived from enter- prises engaged in interstate commerce, 7 I also conclude that the single integrated employer is engaged in interstate commerce, cf. S. Frederick Sansone Co., 127 NLRB 1301, 1307 (1960), and that its activities affect commerce within the meaning of Section 2(6) and (7) of the Act. Mistletoe Operating Company, 122 NLRB 1534 (1959); Frank Visceg- lia and Vincent Visceglia, t/a Peddie Buildings, 203 NLRB 265 (1973). Finally, the Board has uniformly held not only for jurisdictional purposes, but also for purposes of liability as well, that separate and distinct corporate entities may be regarded and dealt with as a single employer if they are in fact an integrated enterprise. Barwise Sheet Metal Co., Inc., 199 NLRB 372 (1972); Playtime Kiddie Wear, Inc., 184 NLRB 373 (1970). C. Jurisdictional Findings and Conclusions; Operations of Respondent Holland Rantos The complaint alleges, Respondent Holland Rantos admits, and I find that Holland Rantos Co., Inc., a subsidiary of Youngs Drug Products Corp., is a New Jersey corporation maintaining a principal office and plant on Easy Street, Building 7-E, in the Central Jersey Industrial Park, Bridgewater Township, Bound Brook, New Jersey; is there engaged in the manufacture, sale, and distribution of toiletries and related products; in the course of its annual operations, it ships in excess of $50,000 of its products, manufactured at the Central Jersey Industrial Park facility, I Respondent Holland Rantos admitted that it annually ships in excess of 50,000 in interstate commerce from its leased facility in Central New Jersey Park. 728 HOLLAND RANTOS CO. in interstate commerce to points outside the State of New Jersey; and that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The evidence shows that Holland Rantos manufactures "pre-moistened towellettes" which are thereafter placed on common carriers for shipment directly to customers and also to Holland Rantos' warehouse and distribution center at Piscataway, New Jersey. Among the visitors to Halland Rantos in the industrial park are salesmen from trucking companies and from vendors. Holland Rantos employed 73 employees at its CJIP facility before the strike called by the Charging Party commencing at the end of April 1, 1977, and thereafter employed 38 employees, of whom 7 were employed prior to the strike. Thus, 31 of its present employees are replace- ments for the economic strikers. Holland Rantos at all times has remained in operation after the strike. Among Holland Rantos' principal suppliers are Chese- borough-Ponds Co., Rexham Company, St. Joseph Paper Company, Proctor & Gamble, Inc., and Downey Compa- ny. These suppliers provide Holland Rantos with metal foil, paper, chemicals, and other products incident to the manufacture of the premoistened towelletes. 11. THE LABOR ORGANIZATION INVOLVED The consolidated complaint alleges, Respondent Hol- land Rantos admits,8 and I find that Local No. 773, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Industrial Park has no retail enterprises within the area east of Chimney Rock Road wherein the leased Holland Rantos building lies. The leased Holland Rantos property, set back about 120 feet from Easy Street, fronts on the south side of Easy Street, 967 feet from the intersection of Easy Street and Chimney Rock Road. There is a stop sign on Easy Street at the intersection with Chimney Rock Road. This property contains a combined office building and factory 120 by 260 feet (G.C. Exh. 14) whose main entrance fronts on Easy Street. To the right (east) side of the building is a triangular parking lot and loading area whose maximum (southerly) dimension is over 200 feet, and whose northerly dimension is something less than 50 feet. The set-back grassy area from Easy Street, within which is a paved walkway to the main entrance, is approximately 40 by 150 feet. B. The Strike and Picketing On and before April I, 1977, the Union represented Holland Rantos' 73 employees at the CJIP location, all but 4 of whom lived within 15 miles of the plant. The collective-bargaining agreement between the parties effec- ' Respondents Edmar. Chandler Realty, and CJIP originally denied knowledge sufficient to form a belief regarding the alleged status of the Union as a statutory labor organization. At the heanng, these denials were withdrawn. Thereafter, in amended answers, the allegations were again similarly denied. Such denials fail to raise material issues of fact. tive January 4, 1974, expired at midnight on April 1, 1977, and the Holland Rantos employees went on strike. After the strike, seven employees, members of the Union, crossed the picket line and returned to work. Holland Rantos thereafter hired 31 striker replacements and continued operations. Commencing after midnight April 1, 1977, picketing by striking employees started immediately there- after on Easy Street in front of the Holland Rantos main entrance. About 36 hours before the strike, Supervisor Willie Williams, plant manager for Holland Rantos in CJIP, hired a guard service, Falls City Security, Inc. The agreement between the parties, effective at 4 p.m. on April I (thus 12 hours before expiration of the contract) and continuing for 6 weeks thereafter, provided that, in the event that any pickets came onto Holland Rantos' property, or in certain adjoining areas, the guards would ask them to leave. If they did not leave, the guards would tell the pickets that the Bridgewater police would be called. The guarded area included any part of Easy Street. As above noted, the industrial park in general is patrolled by guards whose automobiles carry the name "Central Jersey Industrial Park," and who are employees of Chandler Realty. The guards patrol property owned by Edmar as well as Chandler Realty. On April 1, 1977, the day before the strike, Edward Chandler discussed the approaching strike with Holland Rantos' manager, Willie Williams, in the Holland Rantos office. Chandler told Williams that if the pickets came on any Edmar property, whether on Easy Street or adjacent parking lots used by various lessees, including Holland Rantos, he would have them removed.9 He told Williams that he had no objections to the striking employees being on Holland Rantos' property. Edward Chandler testified that Holland Rantos, as a tenant, had a right to travel on and to "use" Easy Street, although rights on Easy Street are not mentioned in the lease. Immediately after midnight, April 2, four pickets, em- ployees of Holland Rantos, commenced picketing in front of the Holland Rantos main entrance on Easy Street. It is not clear whether any of the pickets were on the grassy set- back on the Holland Rantos lot rather than on Easy Street proper although the evidence seems to suggest that the employees were on Easy Street while picketing. In any event, about 2 minutes after commencement of the picket- ing, a Falls City Security guard came out of the Holland Rantos building. Standing behind the glass doors of the main entrance observing the scene at that time was Plant Manager Willie Williams. The guard came to the pickets and told them that they could not picket in front of the building but must go to the end of Easy Street. The pickets, as directed, left and commenced picketing on the east side of Easy Street, at its intersection with Chimney Rock Road. From April 2-4, the striking employees picketed on the east side of Chimney Rock Road. On April 2, Edward Chandler filed a complaint (G.C. Exh. 6) with the Bridge- 9 As above noted, Edward Chandler directs Edmar's business affairs notwithstanding he is neither an officer nor employee of Edmar. 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD water police alleging, in substance, that picketing on the east side of Chimney Rock Road was picketing on his private property to which he objected. On the morning of April 4,10 a town policeman told pickets patrolling on the east side of Chimney Rock Road that they should go over to the west side until the Township engineers decided the property rights on the east side of Chimney Rock Road. The pickets then crossed to the west side where they picketed about 2 hours. They were then notified by the Bridgewater chief of police (Fetzer) that they could picket on the east side parking areas along Chimney Rock Road. The picketing on the east side continued through April 7. The police chief's decision, as will be seen hereafter, was apparently in error. On April 7, Edward Chandler, through a CJIP security guard, filed another complaint (G.C. Exh. 7) with the Township police, this time alleging that the pickets were blocking the Easy Street roadway. The police found "l that the pickets were not in the roadway and were not blocking the roadway. When Edward Chandler then told the police officers that, in any event, he wanted the pickets off his property, the pickets went to the other side (west side) of Chimney Rock Road. On April 8, the police and the town engineers, on prior notice to all parties, met with Edward Chandler and the vice president of the Union, Theodore (Ted) Hussey, at the picket line near Easy Street. The police chief told the pickets that his previous permission for the pickets to patrol on the east side of Easy Street was based on error, the parking areas on the east side of Chimney Rock Road having been determined to be private property controlled by Edward Chandler. The police chief "suggested" that the pickets patrol on the west side of Chimney Rock Road and on the adjoining grassy knoll, property owned by the Township. The police chief forbade picketing on Chimney Rock Road because it was too dangerous and he said that he would arrest any such picket because of the unsafe conditions due to heavy traffic on Chimney Rock Road. He also told the pickets that he had no objection to their parking their cars on the east side of Chimney Rock Road. The pickets thereafter parked their cars on the west side of Chimney Rock Road opposite Easy Street. At the police chief's suggestion, they left a two-car-length open area (about 40 feet), free from parked cars and picketed within that "pocket" (with signs announcing a dispute with Holland Rantos), as well as up on the grassy knoll between the curb and railroad tracks. The evidence shows (Resp. Holland Rantos' Exh. 2(c)) that the Union's picket signs 12 were propped up against the rear bumper of the most northerly parked car on Chimney Rock Road as well as 1' G.C. Exh. 4 appears to indicate that this action may have taken place on April 2 rather than April 4. II The uncontradicted and credited testimony of Shirley Choma, a 5-year employee of Respondent and president of the Charging Party, is that on Apnl 7, at the picket line on the east side of Chimney Rock Road, at the corner of Easy Street, a Bridgewater Township policeman told the pickets to leave the east side and picket on the west side because the police had received a complaint that the pickets were obstructing traffic. Respondent Plant Manager Williams remarked to Respondent's comptroller that he did not know why a complaint had been filed because the picketing had been peaceful and without incident. 12 The picket sign (Holland Rantos' Exh. I) reads: carried by patrolling pickets. Picketing on the west side of Chimney Rock Road under such conditions has contin- ued 13 until the present time on a 24-hour basis. The Union stated it does not desire to communicate with special groups, but rather with "anyone." Easy Street is not a public road. It is not normally patrolled by Township police and anyone entering on or leaving the Edmar section of the Industrial Park or, indeed, driving between Route 22 and 28 must pass the pickets. The picket signs and the pickets are normally visible at 100 to 200 feet to approaching drivers during daylight hours. There is one street light on Chimney Rock Road near Easy Street. In the evening, with that light on, an approaching vehicle cannot see the picket signs. Whether the picket signs can be read depends on whether the vehicles stop or slow down sufficiently to observe them. The Township chief of police testified that by picketing on the west side of Chimney Rock Road in the 40-foot space between the parked cars, there was no real possibility of the pickets being hit by oncoming traffic. The pickets, however, have difficulty in speaking with truckdrivers and occupants of vehicles who turn into or emerge from Easy Street because the particular vehicle's windows may be rolled up, or because of the noise of the engine, or because the driver, proceeding south and turning into Easy Street, in the left-hand (driver's) seat, is in a position away from the pickets, or because the driver's attention is directed to turning, rather than to seeing or observing the pickets. Similarly, vehicles emerging from Easy Street, although they may slow down or stop before emerging, will be intent on turning into traffic rather than stopping in midstreet to converse with the pickets. Lastly, occupants in vehicles driving northward on Chimney Rock Road, although they may see the pickets, are on the opposite side of the road and do not normally stop and converse with pickets when turning into Easy Street. The pickets, in order to speak with the occupants of any such vehicles (except those who might stop in the middle of Chimney Rock Road opposite the "pocket"), would have to emerge from the protected "pocket" between the parked cars and come into Chimney Rock Road. On one occasion, a picket came onto Chimney Rock Road and jumped on a truck to converse with the driver. The speed limit on the two-lane, 30-foot-wide (one lane in each direction) Chimney Rock Road is 50 miles per hour. The police chief testified that the traffic travels at 45 to 50 miles an hour on the road. Willie Williams, the plant manager, testified that, at certain periods of the day and night, the speed of traffic varies from 20 to 35 miles an hour. Edward Chandler testified that only occasionally did URW Local 773 Is On Strike Against Holland Rantos Co. The sign consists of 3-inch black letters on white cardboard. The sign measures approximately 23 by 27 inches. 13 On July 20, 1977, pursuant to application therefor by the Board's Regional Director, Region 22, under Sec. o10() of the Act, Hon. Clarkson S. Fisher, U.S. District Judge, District of New Jersey, issued an order (Civil No. 77-1257), inter alia, enjoining Holland Rantos and Central Jersey Industnal Park, Inc., and Edmar Corporation and Chandler Realty Co., Inc., from interfering with Holland Rantos employees' right to "picket on and in front of the property leased to Holland Rantos. Inc.... The injunction order, by its terms, expires 90 days after entry. 730 HOLLAND RANTOS CO. vehicles reach 50 miles an hour on Chimney Rock Road and that there are often traffic jams along the entire .45 mile length of the road which greatly diminish speed. The resolution of this testimony is that Chimney Rock Road traffic ordinarily travels at speeds between 20 and 50 miles an hour depending on traffic conditions. On May 24, 1977, at or about noon, a train heading north from Route 28, passing behinr the pickets, about 20 feet from the curb and less than 20 feet from pickets standing on the grassy knoll between the curb and railroad track, emitted such a volume of smoke as to engulf that section of the Chimney Rock Road area, cutting visibility to 15 feet. The smoke obscured visibility for 3 or 5 minutes. About 45 minutes later, the train returned and stopped on the west side of Chimney Rock Road, opposite Easy Street and the pickets. It ejected an oil spray from the train engine which covered at least one picket. About 45 minutes after the train sprayed this oil, a small truck drove by spraying a foul smelling chemical at curb level on the west side of Chimney Rock Road, which nauseated a picket and made her ill. On May 31, a vehicle traveling south on Chimney Rock Road struck a vehicle traveling north because of the south traveling vehicle swinging out into the northbound lane. It did so to give wide berth to the vehicles (including vehicles of the pickets) parked along the curb on the west side of Chimney Rock Road. Ordinarily, vehicles proceeding south on Chimney Rock Road swing wide to the left and into the opposing northbound lane in the vicinity of the pickets' cars parked on the west side of Chimney Rock Road (G.C. Exh. 20). The vice president of the Union, Theodore (Ted) Hussey, an employee of Holland Rantos, credibly testified that the Union knew the names of five of the major Holland Rantos suppliers (Cheseborough-Ponds; Rexham; St. Joseph Pa- per Co; Proctor & Gamble, Inc; and Downy Co.) but has not attempted to notify them of the strike; that only St. Joseph Paper uses its own trucks for delivery; that the Union does not know the names of the common carriers used by Holland Rantos but has nevertheless attempted to contact the common carriers delivering goods by request- ing the Teamsters Union to advise the carriers of the labor dispute; that, although the Union knows the names and addresses of the Holland Rantos employees employed before the strike, the Union has not attempted to contact the 7 former union members working for Holland Rantos after the strike, nor has it attempted to use them to contact 31 replacement employees or to contact Holland Rantos to get their names; but the Union has telephoned its striking members and thereafter held union meetings among them; that the normal method by which employees of Holland Rantos get to work is in passenger automobiles; that the Union has not attempted to take newspaper, radio, or television advertisements in order to communicate with suppliers, common carriers, or nonstriking employees of Holland Rantos; and that the reason for the failure to communicate with suppliers or common carriers through newspaper, radio, or television ads or to use other similar devices was because they are too expensive (although it is admitted that the Union has not sought to discover the cost of such advertising devices) since the Union had $200 to $300 in its treasury. On the other hand, the evidence shows that there are local radio stations and at least three local newspapers in the area. The Union also admitted that it is receiving financial aid from the International Union (of undisclosed size) to support the strike. Although vehicles entering into and emerging from Easy Street proceed slowly enough so that their license plates can be copied, the Union does not know the vehicles carrying Holland Rantos' employees to the plant. The Union does not know the names of the specific common carriers servicing Holland Rantos notwithstanding that they may have seen specific common carrier vehicles making deliveries to, and taking deliveries from, the leased building. On the other hand, the union president admitted that there was no alternative site to the intersection of Easy Street and Chimney Rock Road which better suited the Union's object of communicating with the public other than inside the industrial park. Issues Presented The issue remaining, after the above resolution of the "single integrated employer" status of Edmar, Chandler Realty, and CJIP, is whether the integrated Respondent, hereinafter sometimes called CJIP, Inc., through Edward Chandler and the CJIP Security Guards; and whether Respondent Holland Rantos, through its agents, Willie Williams and Falls City Security, Inc., by directions addressed to the pickets and by causing the intervention of the Township police, all for the purpose of forcing Holland Rantos' picketing employees away (a) from the Easy Street area in front of Holland Rantos' main entrance where they were picketing on April 2; and, thereafter, commencing on April 8 (b) from picketing on the east side of Chimney Rock Road, unlawfully interfered with the pickets' protect- ed Section 7 rights in violation of Section 8(aX 1) of the Act. The General Counsel and Respondent Holland Rantos, on the basis of argument at the hearing and submitted briefs, are in apparent agreement that the relevant prece- dents to be applied to the above facts include Frank Visceglia and Vincent, t/a Peddie Buildings, 203 NLRB 265 (1973), enforcement denied 498 F.2d 43 (C.A. 3, 1974), hereinafter referred to as Peddie, and Scott Hudgens, 230 NLRB 414 (1977), hereinafter sometimes referred to as Scott Hudgens or Second Supplemental Scott Hudgens.14 The facts in Peddie are close to those in the instant case. The Visceglia brothers controlled an industrial park whose perimeter was entirely fenced but whose internal structure was divided into four sectors. One sector, the Peddie sector, contained 68 buildings which were all rented to tenants. All, as here, were nonretail enterprises. American Hospital Supply Co. (hereinafter Hospital) occupied two buildings in the industrial park: one (Building #120) it owned in another section of the industrial park; the other (Building 14 Remanded from Scott Hudgens v. N.L.R.B., 424 U.S. 507 (1976). 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD #426), in the Peddie section, was rented from the Visceglia brothers. After expiration of a collective-bargaining agreement with the Union representing a unit of hospital employees employed only in Building # 120, the employees in the unit picketed Hospital at Building # 120 which Hospital owned in the above-noted private sector. Building # 120 fronted on a public road (Raritan Center Parkway) s5 which ran into the industrial park as far as railroad tracks which bisected the industrial park. On the other side of the tracks, a small private road began and ran into and through the Peddie sector as the sole access road. A sign at the entrance to this private road read: "No Trespassing-Private Property, Entrance by Permit Only." Building #426, approachable only on the private road, is approximately one-fifth of a mile from the Peddie sector entrance. Anyone going to Building #426 must originally pass Building # 120 abutting on the public road. About I week after commencement of the strike and picketing of Building # 120, striking hospital employees commenced picketing in front of leased Building #426 in the Peddie sector. None of these employees was employed in Building #426 and all were employed in Building # 120. Peddie's agents told the pickets that they were on private property and threatened to call the police and to arrest the pickets if they did not leave. The pickets left, returned the next day, and were again similarly informed and threat- ened. Peddie called the police who, seeing two pickets, did not intervene and told the pickets they would be allowed to picket if there were no trouble. Thereafter, a state court, on Peddie's complaint, having determined that the Union's entrance into the Peddie sector constituted a trespass, enjoined the picketing at Building #426. The pickets moved to public grounds at the entrance of the Peddie sector beginning at the railroad tracks. The union filed unfair labor practice charges and, on the subsequent complaint, the Board concluded that Peddie unlawfully interfered with the pickets' Section 7 rights 6 because of its threats of arrest which effectively removed the pickets from picketing on the "private property" in front of Building #426. 1s At the point of origination of this public road (Raitan Center Parkway) flowing from another public highway (Woodbridge Avenue), the owners regularly stationed private guards (pursuant to its lease obligations) who recorded the names of all trucks entering the industrial park, the owners' name, destinations, and times of entering and exits. The guards attempted to stop all other vehicles from entering except when rush hour traffic made it impossible. i6 Sec. 8(aX1) of the Act provides as follows: (a) It shall be an unfair labor practice for an employer - (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 .... Sec. 7 of the Act provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(aX3) of the Act. i1 N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1956). In The Board, in Peddie, applied the balancing test man- dated in Babcock & Wilcox,17 notwithstanding that Peddie involved striking employees engaged in an economic strike against their employer whereas Babcock & Wilcox involved merely organizational activities by nonemployees. Both such activities, the Board held in Peddie, come within the protected ambit of Section 7 (203 NLRB at 267). Reason- ing that, but for Peddie's ownership of the property, the striking hospital employees could picket their employer at a place immediately proximate to its location, the Board held that the employees had a right of access to Building #426 on Peddie's "private road" not only for work but also had a "parallel right of access" for otherwise legitimate picketing. Whatever restrictions on access to Peddie's private road Peddie could impose on nonemployees,' 8 it could not lawfully prevent hospital employees from picketing in front of hospital premises. Peddie's threat of arrest was interfer- ence that violated Section 8(aXI). In so holding, the Board analyzed Peddie's property rights and concluded that Peddie's property rights on the private road were not of the same exclusivity as that of a home or even a factory, for Peddie had expressly permitted various classes of persons to have access to the road, including hospital employees. The Board concluded that Peddie, having granted hospital employees the right of access to the premises, could not refuse them access for the sole reason that they were engaged in protected concerted activity. In addition, the Board noted that to force the pickets onto the private property would put them one-fifth of a mile from Building #426 and, at that position, would place the picket line in front of employees of other employers entering the premises with the undesirable statutory result of enmeshing other businesses in the dispute. The Court of Appeals for the Third Circuit refused to enforce the Board's Order (498 F.2d 43). The court refused to accept the Board's conclusions that the Babcock & Wilcox rule applied to economic pickets in industrial parks (and it similarly rejected the respondent employer argu- ment that Babcock & Wilcox did not apply with the results that under no circumstances could pickets use industrial that case, the Supreme Court, in dealing with nonemployee organizers attempting to solicit on the employer's property, ruled that an accommoda- tion or "balancing" must be sought between the Section 7 rights of employees to be organized by nonemployees and an employer's private property rights in his factory and parking lots. Because the employees in Babcock d Wilcox lived near the plant, the Court found, in balancing the parties' respective rights, that, since the union had an adequate alternative means of communication with the employees sought to be organized, the employees' Section 7 rights had to yield to the employer's property rights. The alternative means included use of the mail, telephone, and personal contact with the employees. The Court particularly distinguished that case, involving nonemployees, from employees' organizational activity among themselves, during nonworktime on company property, where employer interference is permitted only to maintain production or discipline. Republic Aviation Corporation v. N.LR.B., 324 U.S. 793, 803 (1945). The Babcock d Wilcox Court also noted that the rule to be applied for nonemployees rather than employees was a distinction of"substance," 351 U.S. at 113. The Board has followed this rule, Tnr-County Medical Center, Inc., 222 NLRB 1089 (1976). In Tri-County, the Board ruled that employees on nonworktime may use the employer's parking lot, absent business considerations mandating a contrary result, for solicitation and distribution notwithstanding any employer rule prohibiting same. 18 The Board expressly reserved the question whether outside organizers would have the same right as employees to picket the employer in front of his premises. (See fn. 7, 203 NLRB at 267.) 732 HOLLAND RANTOS CO. park property) because, arguendo, accepting that Babcock & Wilcox balancing did apply to the facts, there was no requisite substantial evidence supporting the Board's bal- ance of competing rights: (a) The Board failed to show that it was essential for the pickets to be directly in front of Building #426 in order to communicate their message effectively; and (b) the Board failed to show that the picketing at the public entrance to the Peddie sector, one- fifth mile from Building #426, was ineffective in commu- nicating its message to the "appropriate" people-nor did the Board indicate who the prospective audience was nor the number of customers, suppliers who went to, or the number of employees in, Building #426. The court noted, with regard to (a) and (b), above, the following facts: (1) that not only did everyone entering the Peddie tract have to pass the pickets at Building # 120, but had to slow down and stop at the railroad tracks and could therefore read the picket signs at that location; (2) nothing prevented the pickets from talking to all those entering the Peddie tract (even though the pickets "might not have known exactly which people were going to Building #426, making it harder to reach the appropriate groups"); (3) the Board made no finding that the pickets were endangered at the entrance to the Peddie sector, a factor to be noted at least in First Amendment cases; and (4) the pickets could and did confront the employer at Building # 120 (and anyone going into Building #426 had to pass them and could read the picket signs "and there is no evidence that the pickets could not communicate their message effective- ly from there," 498 F.2d at 49). Further, the court rejected the Board's conclusions, as not supported by evidence, that hospital employees had a "parallel right of access." Noting that employees of Building # 120 had no right of access to Building #426 even for work purposes, the court cited Diamond Shamrock Co. v. N.L.R.B., 443 F.2d 52 (C.A. 3, 1971) and GTE Lenkurt, Inc., 204 NLRB 921 (1973), in holding that there were certainly no parallel right to picket.'9 Finally, the court held both that the Board failed to adequately measure the injury to Peddie's property rights and had insufficient evidence on which to conclude that, to force the pickets to remain at the Peddie entrance, rather than at Building #426, would have adverse secondary effects on other Peddie sector lessees. On June 23, 1977, after the close of the record herein, the Board issued a Second Supplemental Decision and Order in Scott Hudgens, 230 NLRB 414. Scott Hudgens involved economic strikers picketing their employer inside a shop- ping center housing 60 retail stores. The shopping center manager told the pickets that they could not picket within the mall or its surrounding parking lot and, as in Peddie Buildings, and threatened to call the police (i.e., with arrest) if they did not leave. The pickets departed. Is The rule of Diamond Shamrock, supra, is that off-duty employees do not have the same rights to solicit union support on employer property, as on-duty employees might have in their nonworking time. The Board, however, has thereafter severely limited GTE Lenkurt, supra, in Tri-Counry Medical Center, 222 NLRB 1089, supra at 1089. which holds, inter alia, that with regard to an employer's rule restnricting access of employees to enter employer property "except where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas Iwould] be found invalid." Accord: Continental Bus System, Inc., 229 NLRB 1262 (1977). The Supreme Court in Hudgens, 424 U.S. 507, previously remanding the case to the Board and directing a Babcock & Wilcox balancing, noted three factors distinguishing Bab- cock & Wilcox from Scott Hudgens: (1) Hudgens involved lawful economic strike activity rather than organizational activity as in Babcock & Wilcox; (2) Hudgens involved employees of a retail store (not of the shopping center itself) engaging in Section 7 activity, not outside organizers as in Babcock & Wilcox,' and (3) the property interest impinged on in Hudgens was not that of the employer against whom the Section 7 activity was directed but of another. The Board, in its Second Supplemental Decision (230 NLRB 414) concluded that the above three factual distinc- tions did not preclude it from finding that Hudgens' forcing the pickets out of the mall constituted an unlawful interference and violated Section 8(a)(1) of the Act. The Board held that (a) the Hudgens picketing in support of an economic strike was at least as protected under Section 7 as Babcock & Wilcox organizational picketing; and (b) picketing employees were entitled, under Section 7, to at least as much protection as nonemployee organizers. The Board noted, however, with regard to picketing economic strikers that, in organizational picket- ing, the protected Section 7 rights were those of employees who had a right to receive organizational information from nonemployees; whereas the protected Section 7 rights of striking economic pickets was their own right to communi- cate their message to persons who do business with the struck employer and to employees of the struck employer who had not joined the strike; and the audience that organizers seek to address in organizational campaigns is specific and often accessible by means of communication other than direct entry of the organizers onto the employ- er's property such as by meeting employees in the street, home visits, letters, and telephone calls. On the other hand, economic strikers picketing a retail establishment seek to reach members of the buying public, including those who might not become such until seeing the retailer's window display inside the shopping mall, and also the nonstriking retailers' employees.2 0 With regard to alternate means of communication, holding that a primary picket line is the most effective way of reaching those who enter a struck employer's premises, the Board under the Hudgens facts (a) rejected the contention that where television, radio, and newspaper advertising is available, the pickets' Section 7 rights must yield to property rights. It also (b) rejected, as alternate means of communication, picketing on the public streets and sidewalks: the closest public area was 500 feet away from the mall store and a message announced orally or by a picket sign at such a distance from the focal point would be "too greatly diluted" to be meaningful. It also rejected 20 There is no reference by the Board to a third distinct class or group as an intended audience of the picketing economic strikers: the employers, if any, and particularly the employees of the employers, who deliver merchan- dise to and pick up merchandise from, or who otherwise service, the retailer. Appeals to them at the picket line to refrain from crossing a primary picket line are, of course, lawful. Newspaper and Mail Deliverers' Union (Interbor- ough News Company). 90 NLRB 2135 (1950). 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing on such distant public streets and sidewalks because of safety considerations, the likelihood of enmesh- ing neutral employers, and the inability to reach the intended audience which is comprised of the buyers at the struck store in the mall. With regard to the third distinction raised by the Supreme Court-that the picketers were impinging on a property right of an employer other than the one against whom the Section 7 activity was directed-the Board held (a) that the pickets, as members of the general public invited to the shopping center, were within the scope of general invitees; (b) the mall's interior walkways were "essentially" open to the public during business hours; and (c) the mall owner was not a neutral bystander. His income was derived from a percentage of tenants' sales and he provides security services in order to protect that income revenue. To the extent that Hudgens' security forces have rights greater than those of a municipality in proscribing conduct within Hudgens' private property, Hudgens is protecting his own interest. Indeed, Hudgens, in providing security forces to the tenants, is acting as the tenants' agent whose interest is similar to the interest of the tenants. The Board, reaffirming its conclusion prior to the Supreme Court remand, held that Hudgens violated Sec- tion 8(a)(1) by threatening to cause the arrest of the retailer's striking employees engaged in picketing the retailer's store in Hudgens' mall. Chairman Fanning concurred, noting, inter alia, that Peddie, supra, was decided solely upon application of the Babcock & Wilcox balancing test. Discussion and Conclusions In the first place, I conclude that the facts herein come within the holding of Peddie as modified by the Second Supplemental Decision in Scott Hudgens. The second Scott Hudgens decision in no way undermines the continued vitality of the Board's decision in Peddie. With due deference to the court of appeals' decision in the Peddie case, I am of course bound by the Board's decisions in Scott Hudgens and Peddie. Distinctions from Peddie The parallels of Peddie to the instant case are clear: Both relate to economic strikers attempting to picket their employer who is occupying leased premises in an industrial park, the strikers being prevented from continued picketing in front of the leased premises by guards employed by the owner of the industrial park.21 Here, as in Peddie, there was 21 Unlike the activity in both Scott Hudgens and Peddie, here there was no express threat of calling the police or of arrest. Here, the guards employed by the primary employer, Holland Rantos, merely told the striking pickets that they could not picket on private property and told them that they were required to picket at the end of Easy Street. I do not regard the lack of an express threat of arrest or an implied threat of arrest (calling the police) to be a substantial distinction. As in Peddie. the threat of arrest is not sine qua non of an 8(aXI) violation. Rather, the newly hired uniformed guards directing the employees away from picketing in front of the Easy Street entrance constitutes the act of unlawful interference and is the fundamental violation of Section 7 rights. In any case, the directions to the pickets by newly hired guards employed by Holland Rantos come within the ambit of an implied threat to force if that conclusion were a necessary element for this Section 7 violation. It should be noted that the Falls City a "private" road used by the tenants, their employees, customers, and suppliers, from which the pickets were banned and were forced to occupy public property. Neither Respondent Holland Rantos nor Respondent CJIP, Inc., assert that the pickets were engaged in activity other than that protected by Section 7 except that it occurred inside the industrial park.2 2 On the other hand, there are major distinctions of fact between Peddie and the instant case which require a stronger application of the Peddie rule than in the Peddie case. (I) While, with respect to whether the industrial park is an isolated and innocent bystander, unlike Hudgens, the lease between Holland Rantos and Edmar does not determine the rent by a percentage of the lessee's sales, unlike Peddie, here, the landlord and tenant acted in concert and coordinated their efforts to remove the pickets.2 3 Thus, unlike Peddie, but as in Hudgens, the private property interest of CJIP cannot be said to be that of an innocent bystander albeit not based on an income interest, which interest varied with the income of the tenant. In both Hudgens and the instant case, however, the landlord provided security services under the terms of the lease to insure a prosperous tenant. (2) Unlike Peddie, here, the first interference with the Union's pickets was by Holland Rantos, the primary object of the picketing. (3) Here, the nearest public property was 967 feet from the primary employer's place of business rather than the 500 feet as in Scott Hudgens. Moreover, CJIP excluded the pickets from its private property abutting the east side of Chimney Rock Road even outside the industrial park area proper. (4) The Holland Rantos pickets were forbidden to picket on the east side of Easy Street across the mouth of the private road leading into the industrial park while, in Peddie, the pickets could patrol across the mouth of the private road albeit on the public side of the railroad tracks. (5) The Peddie pickets, unlike here, could and did confront their employer at the employer's building (Building # 120) because, picketing on public property, they were able to picket that building which fronted directly on the public road. (6) Whereas, in Peddie, nothing prevented the pickets from talking to all those entering the Peddie tract, the Holland Rantos' pickets could not and did not effectively communicate with occupants of vehicles (there is no suggestion of pedestrians using Easy Street, but rather vehicles carrying employees and goods) turning into and emerging from Easy Street, all this notwithstanding that in daylight hours the pickets and their picket signs were clearly visible to oncoming vehicles. (a) It would be necessary to run out from their protected enclave between security private guards were empowered to call the police if the employees did not leave the Easy Street entrance. 22 Neither General Counsel nor the Charging Party has suggested that Holland Rantos, on April 2, having unlawfully deprived the picketing employees of their Section 7 rights by preventing the pickets from picketing at the main entrance on Easy Street, converted the strike into an unfair labor practice strike. In view of such a state of the record, I do not treat such a theory or analyze its effect on the balancing of interests under Babcock & Wilcox. 23 This coordination exists notwithstanding Chandler's testimony that he told Willie Williams on April I that he had no objection to the pickets on Holland Rantos' property, but would not allow the pickets on CJIP property. He already knew that Holland Rantos was hiring guards to remove them from Holland Rantos' property. 734 HOLLAND RANTOS CO. the parked cars on to Chimney Rock Road to converse with the drivers and/or passengers of any such vehicles; (b) such a procedure would be dangerous in view of the considerable traffic on Chimney Rock Road, a 50-mile- per-hour two-lane road; (c) if not dangerous, it would tend to block traffic on Chimney Rock Road for the pickets to converse with the driver of any vehicle who cared to converse with them. 24 To block traffic would bring the police who had already specifically warned against Hol- land Rantos employees "picketing" on Chimney Rock Road; (d) Respondent CJIP prevented the pickets from exercising an opportunity of regularly conversing with the occupants of vehicles entering into or leaving Easy Street when it caused the Township police to remove the pickets from the east side of Easy Street (the parking area running parallel to Chimney Rock Road); and (e) in view of Holland Rantos' use of common carriers, whose identity was unknown to the Union, the pickets would be forced to jump out into the road and confront every vehicle turning into Easy Street; whereas, if permitted to picket on Easy Street in front of Holland Rantos, only those trucks seeking to enter the Holland Rantos property would be the object of conversation. (6) The pickets on Chimney Rock Road were placed in physical danger. If they chose to go out on to Chimney Rock Road, there would be, as above noted, physical danger as well as the threat of arrest. In addition, the railroad train running at their backs, 20 feet away on one occasion, engulfed them in smoke and sprayed them with oil. Later a truck sprayed a noxious chemical on or near them. Respondent asserts that these single occur- rences which the pickets could have easily escaped, in conjunction with the pickets' protected enclave on Chim- ney Rock Road and on the knoll, do not create a dangerous area. I reject that position in its entirety and conclude that, whatever the Peddie conditions, the instant picketing is in a dangerous place. In the first place, it should not be overlooked, in the balancing of interests, that the Act gives the strikers a right to picket and that right is not exercisable only on condition of possibly sacrificing health and body. The chief of police's conclusion that picketing in the protected enclave is "safe" does not bind me to his opinion. With the train running no more than 20 feet at their backs and the traffic flowing up to 50 miles per hour on Chimney Rock Road, that is not a safe place to picket. When Respondent Holland Rantos belittles the alleged lack of safety by alluding to the doctrine of isolated instance (the engulfing of the pickets in smoke and then being separately sprayed with oil and chemicals), Respon- dent is actually arguing that the traffic danger would be of the pickets own making and that the oil, smoke, and chemicals in small doses are acceptable. 24 In both Peddie and Hudgens, "effective communication" by the pickets is a major issue in the Babcock & Wilcox balance. With all due deference to the Third Circuit's opinion in Peddie, supra, it is possible to infer from statements therein that effective communication by the pickets in large part results from the visibility and clarity to oncoming traffic of the pickets and their signs. In Peddie, as here, there is no question (contrary to General Counsel and the Union's arguments in the instant case) that the pickets and their signs were ordinanly clearly visible dunng daylight hours to all traffic passing the intersection of Chimney Rock Ro-d and Easy The short answer to that position is that, in weighing competing rights in other contexts, the Board has not hesitated to limit the right of employees, for instance, from engaging in otherwise protected concerted activities which might, but had not at that time, lead to a breach of discipline. In Southwestern Bell Telephone Company, 200 NLRB 667, 671 (1972), the Board prevented employees from wearing shirts carrying an obscene reference to the employer. The theory, in holding the employee conduct to be unprotected, was that such conduct might cause a breach of discipline among factions of the employees. There had not at that time been an actual breach of discipline. The Board held that no actual breach of discipline need occur before the conduct could be interdict- ed. Here, there already was activity which physically harmed the pickets. There should be no necessity to require employees, engaging in an otherwise lawful right, to be struck by a vehicle on Chimney Rock Road, or further injured by smoke, oil, or chemicals, before concluding that the area of picketing, for balancing purposes, is "danger- ous." Finally (7), whatever the record made in Peddie, the record here is devoid of competent evidence of the availability of the media of television or radio as an alternate means of communication. The record shows only hearsay for the most part in this regard. On the other hand, while the instant strike received newspaper coverage, there is no evidence that the Union sought to write letters to the newspapers or sought television or radio communication to advertise their dispute. The burden of proof, however, is clearly on the General Counsel to prove the unavailability of other means of communication. This it has failed to do. Thus, regardless of the lack of competent evidence ad- duced by Respondent CJIP to show the availability of newspapers, television, and radio, General Counsel failed to carry its lawful burden to show unavailability. Central Hardware Co. v. N.L.R.B., 468 F.2d 252, 256 (C.A. 8, 1972), ON remand from 407 U.S. 539. Respondent showed only that there existed local newspapers and radio, but not their availability as a means of reaching particular groups of the audience. The burden of unavailability, however, is for General Counsel, not for Respondent. The Union, alleging $200 to $300 in its treasury, pleaded poverty and Respondent Holland Rantos then caused the Union to admit its being financially aided by the Interna- tional union. Once having admitted the availability of other funds, without showing the continuing inadequacy thereof to finance television and/or radio and other media because of financial inadequacy, I am not impressed with the plea of poverty. Assuming, arguendo, therefore, the availability of union funds for use of such media, the next question is whether Street. The pickets and signs here were not visible while pickets picketed in the darkness because of the single street light on Easy Street. However, as part of Babcock & Wilcox balancing, "effective communication," daylight or nighttime, must be more than visibility of signs and pickets. Ordinarily, where possible, it must include the right of the picket to make a lawful verbal appeal to any who would cross the picket line. Such is necessarily part of the lawful coercive effect of a picket line. Were the rule otherwise, there would be no need for human physical presence on the picket line, but merely the posting or placement of the picket signs themselves. 735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the utilization of such media would effectively reach the Union's intended audience. What constitutes the Union's audience? The Board, in the Second Supplemental Scott Hudgens, distinguished the characteristics of intended audiences: in organizational cases, the unrepresented employees to be organized by the nonunion organizers as in Babcock & Wilcox; and in economic strike situations involving a retail store employer in a shopping center, both members of the buying public who might, seeing the retailers display window inside the mall, and the store employees, constitute the intended audience. The Board, affirming the Administrative Law Judge's finding, concluded that the mass media used by the shopping center and its merchants to attract customers from metropolitan Atlanta, Georgia, were not "reason- able" means of communication for employee pickets seeking to publicize their labor dispute with a single store in the mall. Scott Hudgens, 230 NLRB 414, 416, citing 205 NLRB 628, 631. In addition, the Board held that such a conclusion would undercut Board and court precedent recognizing and protecting picketing as the most effective way of reaching those who would enter a struck employer's premises. In the instant case, unlike both Scott Hudgens and Babcock & Wilcox, the intended audience here, as in Peddie,25 included the employees, both 31 replacements, and 7 who resigned from the Union, all of whom refrained from joining the strike; Holland Rantos' suppliers, custom- ers, vendors, and their employees; the common carriers and their employees and perhaps the general public. All could be appealed to lawfully, urging them not to cross the primary picket line. While mass media could be used to contact Holland Rantos' nonstriking employees and those suppliers and vendors whose names were known, the Union apparently did not know the names of the common carriers who conveyed materials and products to and from the plant. Moreover, even if the Union knew their names at the start of the strike, such knowledge would not prevent Holland Rantos or Holland Rantos' suppliers from changing their common carriers. Furthermore, the segment of the com- mon carrier audience to whom the Union would most desire to transmit its strike appeal would be the carriers' employees. On the record their identity is completely unknown. Lastly, since the test of use of alternate means of communication requires that the alternative means be a "reasonable" means, and since the Board has rejected use of mass media if the Union's message, regardless of the Union's ability to pay for the mass media, will not be communicated directly to the intended audience, Scott Hudgens, 205 NLRB supra at 631, the use of mass media here is not reasonable, even if the union funds were sufficient therefor since the intended audience would be reasonably reached. With regard to the impingement on the landlord proper- ty rights, there is no question but that here, unlike Scott Hudgens, there is no general invitation to the public, including the pickets, to use roads essentially open to the 2s The Board in Peddie, although using the balancing of interest test prescribed in Babcock & Wilcox, did not consider the use of mass media in analyzing alternative means of communication. public. Thus the pickets here are not, as in Scott Hudgens, within the broad scope of invitee status. Yet, as in Peddie, they are not strangers in terms of their prior use of Easy Street as a means of ingress and egress. On this record, the employees of Holland Rantos, both before and during the instant strike, have necessarily enjoyed the "parallel" right, possessed by Holland Rantos, to utilize Easy Street as an access road. Peddie, at 267. The nonstriking employees and the striker replacements use it at the present time. Insofar as CJIP, as distinguished from Holland Rantos, is concerned, its refusal to permit the picketing employees to enter upon and picket on Easy Street (assuming, as here, there is no blocking on Easy Street by the pickets) constitutes a gratuitous distinction between its tenant's employees, adversely affecting those engaging in protected activities. Whatever the right of Holland Rantos to exclude its striking employees from its property, it is surely a different proposition for CJIP to exclude from its property one class of Holland Rantos employees rather than another when, theretofore, all Holland Rantos' employees enjoyed the right of access. Thus, if Holland Rantos had ceased operations entirely, CJIP could have excluded all classes of Holland Rantos' employees. Holland Rantos has not ceased operations and CJIP's exclusion of one class only is unlawful because it distinguishes between employees en- gaged in protected Section 7 rights and others. Such a ground of distinction violates Section 8(aX 1) of the Act and I so find. N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). With regard to CJIP, therefore, the above factors appear, for the most part, to distinguish this case from Peddie in the sense that this case would more forcefully require the application of the Peddie rule based on Babcock & Wilcox balancing, as further explicated in the Second Supplemen- tal Scott Hudgens. With regard to Holland Rantos, its exclusion of its picketing employees from the Easy Street location does not merit a Babcock & Wilcox weighing of alternatives. The strikers, vis-a-vis their own employer, had a right to picket on Easy Street commencing with the night of April 1-2, 1977. It was Holland Rantos' newly hired guard force which first excluded the pickets from Easy Street. Holland Rantos defends on two principal grounds. The first, that there existed reasonable and effective alternate means of communication with respect to the Union's intended audience, is inadequate both on the merits and because this defense, as above noted, is available to the landlord rather than to Holland Rantos, the primary employer and the sole object of the picketing. To permit this defense to the primary employer would give him unnecessary insulation from the Section 7 rights of his employees merely because he chose to rent in an industrial park. On the merits, Holland Rantos asserts that the picketing on public property at the intersection of Easy Street and Chimney Rock Road is (1) effective and (2) safe; the Union made no attempt to communicate with (3) nonstrik- ing employees, (4) those doing business with Holland 736 HOLLAND RANTOS CO. Rantos, or (5) the general public through "the many channels available." I have concluded, to the contrary, that the present picketing restricted to the west side of Chimney Rock Road, especially in view of the difficulty of identifying and reaching those doing business with Holland Rantos, is (I) ineffective and (2) dangerous; that although the Union (3) failed to utilize at least one alternative means (mass media) of reaching the nonstriking exmembers of the Union (the names of the replacements were unknown to the Union), yet the Union (4) was unable in any case to reach important segments of those doing business with Holland Rantos even if it knew the names of four or five major suppliers; and it was irrelevant to reach the general public since the general public was not an important element of the Union's audience, notwithstanding that the Union's president testified that the object of the picketing was to reach everybody. In balancing CJIP's private property right to exclude the pickets, I conclude that the pickets' statutory right prevails under Board precedent and that picketing at the Holland Rantos property within the industrial park is required under the Act. Holland Rantos' second defense is that it was denied due process of law because of the Board's participation in prior proceedings against Holland Rantos under Section 10(j) of the Act. At the hearing, Respondent moved for dismissal of the complaint based on the denial of due process and the inherent prejudice to it resulting therefrom. I reserved ruling on the motion. In fact, Respondent's brief notes that certain of the transactions between it and the General Counsel relating to the factual basis allegedly supporting its position occurred after the close of the record in the instant unfair labor practice proceeding. In particular, Holland Rantos, in its brief, moves that certain correspondence between it and the General Counsel (Exh. A, letter of the General Counsel, dated June 21, 1977) be made part of the record in this case. Since Holland Rantos' underlying argument is that the Board's participation in the otherwise lawful Section 10(j) procedure creates a denial of due process, it calls, inter alia, at least (1) for a determination by me of the lawfulness of the mechanics by which the Board secures Section 10(j) relief (this is a matter wholly outside my jurisdiction which extends to matters encompassed within Section 10(b)) and (2) for a determination of t' tionality of the Board's procedures under the statute. Such a determination is for the Board, not for me. Thus, in the absence of objection from counsel for General Counsel or the Union, I grant Holland Rantos' motion to reopen the record for the purpose of admitting the June 21, 1977, letter of the General Counsel. Further, since I am without power to decide questions of the lawfulness, much less the constitutionality of, the Act or in the Board's application thereof, I hereby respectfully refer to the Board Holland Rantos' motion to dismiss the complaint based on the Board's alleged unconstitutional, and other, actions under Section 10(j) of the Act. 26 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National L.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. As I have found that the Holland Rantos employees have a protected right in the circumstances of this case to picket Holland Rantos in front of the Easy Street main entrance to, and in, the parking and delivery areas used by and adjoining the Holland Rantos property inside the industrial park, and that both Respondents unlawfully interfered with these employees in the exercise of this right by the conduct described above, I conclude that the Respondents thereby violated Section 8(aX 1) of the Act. CONCLUSIONS OF LAW 1. Respondent, Central Jersey Industrial Park, Inc., Edmar Company, Incorporated, and Edward Chandler Realty Company, Inc., herein collectively called CJIP, is a single integrated employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Holland Rantos Company, Inc., a division of Youngs Drug Products Corporation, herein called Holland Rantos, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Local No. 773, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 4. Commencing on April 2, 1977, Holland Rantos, by preventing its employees through use of private guards, municipal police, or otherwise, from engaging in the protected activity of picketing on and immediately adja- cent to its leased property, including that in front of the Easy Street entrance of its facility in the industrial park owned by CJIP, violated Section 8(aXl) of the Act. 5. Commencing on April 7, 1977, CJIP, by preventing the employees of Holland Rantos through use of private guards, municipal police, or otherwise from engaging in the protected activity of picketing on and immediately adja- cent to the property in its industrial park, both on the east side of Chimney Rock Road adjacent to Easy Street and at the Easy Street main entrance to and adjacent areas of the Holland Rantos facility, violated Section 8(aX1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents violated Section 8(aXI) end that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, I hereby issue the following recommended: ORDER 26 The Respondents, Holland Rantos Company, Inc., a division of Youngs Drug Products Corporation, and Central Jersey Industrial Park, Inc., Edmar Company, Incorporated, and Edward Chandler Realty Company, 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., and each of them, their officers, agents, successors, and assigns, shall: 1. Cease and desist from preventing the employees of Holland Rantos Company, Inc., a division of Youngs Drug Products Corporation, herein called Holland Rantos, or employees of any other employer located in those sections of Central Jersey Industrial Park owned or controlled by Edmar Corporation, Edward Chandler Realty Company, Inc. or Central Jersey Industrial Park, Inc., from peacefully picketing as part of protected concerted activity within the aforesaid sections of Central Jersey Industrial Park by causing the intervention of municipal or private police who proscribe, limit, or interfere with such peaceful picketing, or in any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at their offices and other conspicuous places in the Holland Rantos leased facility in Central Jersey Industrial Park and in the offices of Edmar Company, Incorporated, Edward Chandler Realty Company, Inc., and Central Jersey Industrial Park, Inc., copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondents' representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 27 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We WILL NOT prevent the employees of Holland Rantos Company, Inc., a division of Youngs Drug Products Corporation, or employees of any other employer located in those sections of Central Jersey Industrial Park owned or controlled by Edmar Corpo- ration, Edward Chandler Realty Company, Inc., or Central Jersey Industrial Park, Inc., from peacefully picketing as part of protected concerted activity within the aforesaid sections of Central Jersey Industrial Park, by causing the intervention of municipal or private police who proscribe, limit, or interfere with such peaceful picketing, or in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. HOLLAND RANTOS COMPANY, INC. A DIVISION OF YOUNGS DRUG PRODUCTS CORPORATION EDMAR COMPANY, INCORPORATED EDWARD CHANDLER REALTY COMPANY, INC. CENTRAL JERSEY INDUSTRIAL PARK, INC. 738